Natural law
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This article has been written by Nivrati Gupta, a student at the Institute of Law, Nirma University, Ahmedabad. This article discusses Traditional Knowledge with respect to law and why should India adopt the traditional knowledge of Law. 

Introduction

Traditional knowledge means the knowledge, innovations, and practices of local and indigenous communities worldwide. Traditional wisdom, built from experience acquired over the centuries and adapted to the local culture and environment, is transmitted orally from generation to generation. It tends to belong collectively and takes the form of stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community laws, the local language, and agricultural practices, including plant species and animal breed development. It is sometimes referred to as an oral tradition because it is practised, painted, sung, danced, sculpted and performed for thousands of years.

Contrary to popular opinion, conventional wisdom is not so-called because of its antiquity. It is a living body of knowledge that is developed, sustained and transmitted within a community from generation to generation and is often a part of its cultural or spiritual identity. As such, it is not easily protected by the existing system of intellectual property, which usually grants rights for designated persons or corporations for inventions and original works for a limited time span. Its living existence also means that it is not easy to define “traditional knowledge”. Traditional knowledge is primarily in fields such as agriculture, fisheries, safety, horticulture, forestry and overall environmental management. Protecting and fostering existing knowledge is a mix of various concepts, such as human rights, resource management, sustainable development, intellectual property rights and the framework for sharing benefits. This work examines traditional knowledge through the lens of the ecosystem of intellectual property.

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An instrument for the clear defence of such traditional or indigenous information has not emerged from the international legal framework, and while some national laws do provide protection, this may not be sufficient for other countries.

Overview 

India, a diverse nation with just 2.4 per cent of the world’s land area, harbors 7-8 percent of all reported species including more than 45,000 plant species and 91,000 animal species. Of the 34 global biodiversity hotspots, four are present in India, represented by the Himalayas, the Western Ghats, the Northeastern Ghats and the Nicobar Islands. In addition, India is the largest producer of medicinal plants, and the traditional medicinal systems found under Ayurveda, Siddha and Unani are concepts established in India between 2500 and 500 BC. That India is a biologically diverse nation and the traditional knowledge of different resources, especially the medicinal system, makes it a wealthier nation is understood, but the possession of such knowledge must be both protected and promoted. India has endured many struggles to maintain its traditional awareness. This resulted from the patents given to companies for information which is the legacy of India. Biodiversity and related traditional knowledge constitute two Indian capital resources. ‘In 2000, the Council for Scientific and Industrial Research in India found that approximately 80 percent of that year’s 4896 references to individual plant-based medicinal patents in the United States Patents Office applied to only seven Indian-origin medicinal plants.

As a form of the prior art, the Traditional Knowledge Digital Library is an effort to protect Indian traditional knowledge from the defence. India attempted to implement Convention on Biological Diversity’s provisions on access and benefit-sharing through its 2002 Biological Diversity Act and enacted the 2001 Plant Variety Protection and Farmers’ Rights Act, as envisaged by the Trade-Related Aspects of Intellectual Property Rights. In addition, several NGOs, civil society organizations, and governmental institutions are working at the local-level to document traditional knowledge.  In contravention of the Biological Diversity Act, 2002, I will enunciate three popular cases that brought to the fore the alleged “stealing” of traditional Indian knowledge and access to biological resources. 

The Neem case

A controversy that could be tagged as India’s “first” and raised doubts about an allegedly “strict” patent system was the granting of a patent to a company named W.R Grace. In the United States and the European Union, the company was awarded a patent for a formulation that kept the active ingredient in the neem plant in the safe storage of azadirachtin; it decided to use azadirachtin for its pesticide properties. Traditional medicine systems, such as Ayurveda and Unani, identify antiviral and antibacterial properties of the neem tree, also known in Sanskrit as the “curer of all ailments,” and prescribe the same for the treatment of skin diseases and as a natural pesticide.

In the patent application, the applicant admitted how the pesticide uses of neem were known and pointed out that it is difficult to store azadirachtin for a longer period. The granted US patent covered a particular invention under which the applicant was only given the exclusive right to use azadirachtin in the unique storage solution mentioned in the patent. The patent grant was followed by an outcry and questioned by re-examination and post-grant opposition proceedings before the United States Patent and Trademark Office (USPTO) and the European Patent Office (EPO).

Although the United States Patent and Trademark Office did not succeed, the EPO ruled in favour of the opposition stating the issued patent, lacking novelty and innovative move.

The Turmeric case

As the USPTO dealt with the case of Neem, a similar matter was boiling; a patent was issued for “use of turmeric in wound healing” and a process was claimed for healing wounds in a patient by administering a “powerful volume” of turmeric. The inventors of this patent were Suman K. Das and Hari Har P. Cohly and had later granted the patent to Mississippi University. 

A request for re-examination against the granted patent was filed along with nearly two dozen references which resulted in early success. The defence of the inventors was shown to be poor in the face of modern commentaries on classic Ayurvedic texts, excerpts from the Compendium of Indian Medicinal Plants and historical texts from the library of Hamdard University in the nineteenth century, resulting in the revocation of the patent by the United States Patent and Trademark Office in August 1997, which was lacking in innovation. 

The Basmati case

The Basmati Case that created much havoc was a patent granted by the United States Patent and Trademark Office for “Basmati rice lines and grains” to an American company named RiceTec. Basmati rice, in India and Pakistan, is a traditionally grown aromatic variety of rice. In addition to that under the patent law i.e. under trademarks and geographical indications, the grant of this patent raised a multitude of intellectual property issues.

RiceTec had been awarded a patent for the invention of hybrid rice lines incorporating desirable Basmati rice grain traits with desirable plant traits. It was due to the inferior quality of Basmati rice grown in the US compared to the good quality of Basmati rice grown in northern India and Pakistan and would help to grow better Basmati rice crops in the western hemisphere, particularly in the United States of America. A request for re-examination was filed with statements from two scientists, along with several Basmati rice publications and the Indian rice research — one of which made the USPTO realize that RiceTec ‘s core claims were not evident. That resulted in RiceTec not challenging the decision of the USPTO and reducing to three of its twenty claims.

Knowledge is richness and conventional knowledge has tremendous ability to solve the emerging problems of man. Exploiting this information is extremely valuable but must be balanced with security, promotion and sharing of benefits. Traditional knowledge can be termed as the newest member of the IP family. However, decisions on tackling this child must be taken considering several factors, in addition to the (un)will of nations. Correctly put, the informal sector knowledge system, i.e. traditional knowledge, is often oral and not adequately documented, and therefore not defensible.

India has taken a step forward and built a repository of its age-old information which is rising periodically but the need for a legal instrument is becoming increasingly urgent on an international level. The question of relevance is the linkage of traditional knowledge systems with a modern IPR system.

Law as traditional laws 

Tradition has three attributes:

First is pastness: The contents of each tradition have originated some considerable time in the past, or are believed by its participants to have. 

Secondly, the presence of authority: Although derived from a real or believed-to-be real past, a traditional practice, doctrine or belief has not stayed there, as it were. Its traditionality lies in its present authority and importance for the traditional participants’ lives, thoughts or activities.

Third, it’s not just the past made present that is tradition: This must have been passed down over centuries, intentionally or otherwise; not simply retrieved from a history discontinuous with the present, or believed to have been passed down. A necessary consequence of that third element is the social nature of traditions. Habits, also traditions, can only be born, live and die in one individual’s behaviour. 

Traditions are not simply as a matter of definition, like every tradition, these elements are shared by law. The legislation is organized more than many traditions to preserve, maintain and draw upon them systematically and constantly.

Thus, forms of tradition, transmitted components from a real or believed-to-be real past, are central to the practices of law and are authentically present. This is not to deny the possibility, or the fact, of legislative change. On the contrary, the familiar antinomies of post-enlightenment-tradition and change; tradition and progress; tradition and modernity- are based on a profound misunderstanding of the nature and conduct of traditions.

For whatever else leads to change in law, and of course, there are many internal and external sources, the very traditionality of law ensures that it needs to change. While authoritative interpreters might police the present to see that it is not too distant from their interpretation of the past, traditions can not survive untouched. Many practices, for example, allow for deliberate reform by revelation or legislation, or by using extra-doctrinal considerations. The modifications thus made would then be integrated into the practice and interpreted in the traditional manner.

Yet there are some common features of the many different types of the tradition- the authoritative presence of the transmitted past- and the use of the traditional concept allows one to speak of this. However, when one does, one has to do more than just talking about tradition-in-general. Legal systems vary in the degree to which they contribute to the solution of the coordination problems of life in a useful, or even positive way. Everything that is happening in every legal framework is about other things. Some legal systems make no contribution to addressing, or even compound, teamwork problems. 

Protection of traditional knowledge In India 

There is no definition of conventional information which is recognised internationally. In a wider sense, it encompasses not only traditional knowledge but traditional cultural expressions as well including identifying signs and symbols associated with traditional knowledge. In the broader sense, conventional knowledge refers in particular to knowledge as such, in a typical theoretical knowledge derived from intellectual activity, which involves know-how, habit and skills which resulted in inventions.

Need for protection of the traditional law 

Article 8 clause (j) of the CBD states that each member nation must move towards the preservation, sustainable and main use of resources which are important to the traditional knowledge of the indigenous community in accordance with its domestic law. Member States are urged to promote greater use of traditional knowledge with the prior approval and involvement of the knowledge holders. The fact that industries are using traditional knowledge without the knowledge holders’ prior informed consent is a concern as is the lack of mechanisms for benefit-sharing.

Patent laws 

India, due to its colonial history, has had a much longer experience with patent systems than certain European countries. The Patent Act,1970 brought significant changes. It excluded the patenting of life forms and specifically the patenting of methods of agriculture and horticulture (Section 3, Patents Act, 1970). The Act specifically mentions that the general principles regulating the use of patents were:

  • patents are granted to promote innovations and to ensure that the innovations are treated commercially in India; 
  • not just to allow patents to enjoy a monopoly on the production and sale of the patented Article (Section 83, Patents Act 1970).

Section 3(p) states that innovations which are in effect traditional knowledge or which constitute an aggregate or duplication of known properties of traditionally known components or components are not patent inventions. Claimants also have an obligation to disclose the biological origin and its geographical origin materials used, with full specification. 

The Act was different from the Western model as, on the one hand, it aimed to regulate monopoly and, on the other, to provide for India’s health and food needs. International innovations such as the introduction of the Trade-Related Aspects of Intellectual Property Rights(TRIPS) Agreement affected national patent policy reforms in the 1990s. Subsequently, the Patent Reform Act of 2002 has called for improvements instead of defending conventional information. A new Section 3(j) of the Act forbids patentability of seeds and varieties of plants. In response to the growing international debate on traditional knowledge in Convention on Biological Diversity and lack of any recognition of IPR protection for it in trade-related aspects of Intellectual Property Rights, the Patent Amendment Act 2002 sought to address the issue of biopiracy and TK protection, albeit in part.

Plant varieties and Farmer’s Rights Protection Act, 2010

India’s IPR protection policy in agriculture has largely been governed by factors that include “common heritage” or the principle of free exchange on the grounds that the world’s major food plants are not owned by anyone and are part of our human heritage. The focus will be on ensuring access to technology and encouraging economic development. India introduced IPR laws to protect innovators’ rights but tried to balance this with the need for access to resources at reasonable prices. The prohibition on the patentability of life forms and specifically agricultural or horticultural methods was one of the hallmarks of the Patent Act 1970 with regard to food safety. The marketing of agriculture, the increasing use of quality seeds and hybrid seeds leading to a decline in the use of traditional crop varieties and the subsequent entry of multinational organic farmers required a review of agricultural policies to protect India’s rich plant variety base. Another factor that shaped the debate in favour of the PPVFR Act was the issue of farmers’ rights within the Food and Agriculture Organisation(FOA) and other forums which shaped various debates on Protection of Plant Variety and Farmers Right Act, 2010. NGOs in India have used these innovations to encourage the security of traditional information.

For the conservation and sustainable development of the environment, the preservation of traditional knowledge is significant, as much of the world’s biodiversity has been preserved by indigenous people. Their expertise is central to conserving and preserving genetic capital and other bio-tools. Most of these social groups live in areas where a large percentage of plant genetic resources from around the world are found. There is a risk that the biological resources increasingly subject to Intellectual Property and Patent will likely be plucked to extinction, raising concerns about their exhaustible and habitat loss in continuation to the loss of traditions and livelihoods to indigenous groups that for centuries have nurtured and used those tools. Ultimately, that may also impact food health. International recognition and protection of traditional knowledge would help in environmental protection and conservation as well as biodiversity management. 

Traditional Knowledge Digital Library 

In June 1999, the then Planning Commission under the Central Government constituted a “Task Force on Conservation and Sustainable Use of Medicinal Plants. One of its objectives included identification of measures to facilitate the protection of “patent rights and IPR of medicinal plants”. One among several recommendations of the Task Force, was creation of a library to ensure collation of traditional knowledge on one platform, which is available digitally and is helpful in proving to the world that traditional medicinal knowledge with India is prior art due to which, patent applications based on such knowledge will not fulfil the criteria of novelty.Thus, a database of India’s traditional knowledge, took birth.

Traditional Knowledge Digital Library  is a database of over 2,50,000 formulations used in traditional medicine systems in India, namely, Ayurveda, Siddha, Unani and Yoga. TKDL is a pioneer initiative of India to prevent misappropriation of the country’s traditional medicinal knowledge at international patent offices on which healthcare needs of more than 70% population and livelihood of millions of people in India is dependent. 

International regime for protection of traditional knowledge

International flora and fauna are increasingly recognizing the value of preserving the expertise, creativity and traditions of indigenous and local communities. The immediate need is to ensure that the benefits of traditionally acquired cumulative breakthroughs go to their holders while enhancing their socio-economic development. The first effort to protect traditional knowledge (TK) under the IP regime was a joint initiative taken in 1978 by WIPO and the United Nations Educational, Scientific and Cultural Organization which led to the 1982 Protection of Folklore ‘s Expressions from Illicit Exploitation and Other Prejudicial Actions.

Since then, with the adoption of the Convention on Biological Diversity in 1992, the protection of traditional knowledge has gained increasing attention. This broadened the scope and mandate of protection through broader goals. Much has been done to protect traditional knowledge by intergovernmental bodies dealing with IP, environment and even human rights control over traditional knowledge for indigenous and local communities, namely the World Trade Organization and its Trips Council, the World Intellectual Property Organization, the Food and Agriculture Organization, the United Nations Conference and WHO. 

Convention on biological diversity

On 5 June 1992, the Biological Diversity Convention was concluded. It was the result of discussions under The United Nations Environment Programme in Rio de Janeiro 1992. The UNEP-administered Convention On Biological Diversity sets principles for environmental protection while ensuring ongoing economic development, emphasizing biodiversity conversation, sustainable use and a fair and equitable sharing of the benefits of genetic resource utilization. 

The Convention On Biological Diversity is a major reaffirmation of the States’ sovereign rights over their biological resources. Article 8(j) appears to state that holders are entitled to their expertise, inventions and practices, whether or not they can be covered by IPRs. If they are unable to be covered by the current IPR scheme, governments also have a duty to safeguard these entitlements either through a new IPR law or by concurrent legislative or policy steps. These duties should extend to TK uses, innovations, and practices as well.

The Convention On Biological Diversity also recognizes the importance of traditional use of genetic resources in sustaining biodiversity conservation. It establishes access to biological transfer from the industrialized countries and argues that Intellectual Property Rights should not conflict with biodiversity conservation and sustainable use 5. It also includes provisions to promote, grow and use indigenous and traditional information and technology in the spirit of the  Convention On Biological Diversity.

Food and agriculture organization

The FAO has a broad range of activities related to access to genetic resources, their sustainable use, promotion and conservation of Forest Department Traditional Awareness activities, including non-wood forest products programs and forest communities deserve special attention. The biggest development in recent years has been the International Treaty on Plant Genetic Resources for Food and Agriculture, popularly known as the International Treaty on Seeds. The FAO Conference adopted it at its 31st session in Rome on 30 November 2001, with no country voting against it. 

International Treaty on Plant Genetic Resources for Food and Agriculture is a comprehensive international agreement in harmony with CBD aimed at ensuring food security through the conservation, exchange and sustainable use of the world’s plant genetic resources for food and agriculture, as well as a fair and equitable sharing of the benefits derived from their use. The treaty recognizes the right of farmers and local communities at the centre of origin and diversity to conserve, enhance and make these resources available. The Treaty also emphasizes the need to preserve traditional information related to plant genetic resources for food and agriculture with a view to enforcing the rights of farmers. It also makes the national government responsible among farmers for achieving equitable participation in the sharing of benefits resulting from the use of plant genetic resources for food and farming. The Treaty provides for a funding strategy to mobilize funding for priority activities, plans and programs, particularly in developing countries and transitional economies, taking into account the Global Action Plant adopted in Leipzig in 1996. 

Legal notions for the protection of traditional knowledge 

National and international regulatory mechanisms should be completely integrated and used in the framework of intellectual property, which ensures legitimate access to genetic resources and conventional information. Political and legal stability should be preserved and strengthened in the current international frameworks and agreements to develop and enforce constructive and protective knowledge-protection structures. Indigenous and other local populations engage widely and successfully in all discussions and agreements on genetic resources and cultural knowledge. Some other legal concepts for the protection of traditional knowledge are:

Prior informed consent

Traditional knowledge holders should be fully consulted before third parties use their knowledge according to this principle.

Equitable benefit sharing

This principle prescribes the balancing of right-holders and the general public interest. 

Unfair competition

Unfair competition involves any act of competition that runs contrary to rational industrial or commercial standards, which includes multiple actions that deceive or confuse the public. This principle requires action to be taken against false or deceptive statements that a commodity is authentically indigenous, or that a particular cultural culture has created or endorsed it. 

Customary laws

Customary laws, protocols and practices define how traditional communities develop, maintain and transmit traditional knowledge.

Patents

The patent system to safeguard their inventions as professionals invent within the conventional setting. Such signs are characteristics of trademarks, collective marks, certification marks and geographical indications. As distinctive marks can be protected traditional signs, symbols, and words associated with traditional information.

Protection of customary and Intellectual property traditional law 

The interplay of conventional expertise between customary law and the defence of intellectual property is complex. Distinctive cultures, indigenous peoples and local communities have also developed complex governance norms that can, among other things, control the flow of information and creativity in a way that represents the knowledge-related values of the indigenous population and local community. Such laws, though different from systems of intellectual property, are considered just as successful in protecting the local innovator.

Current knowledge holders, if they wish to, have always had trouble navigating the formal framework of intellectual property, which is focused on processes and procedures that are document-intensive, codified, and regulated by the government. Many indigenous peoples and local communities have lacked the resources, written records, and externally recognized representative governance structures which would facilitate the control of their traditional knowledge, prevent knowledge holders from effectively protecting against misappropriation, or seeking positive protection of intellectual property.

Conclusion 

What makes knowledge “traditional” may be the very fact that in a customary, intergenerational context it is developed, maintained and disseminated, and often that context is defined and shaped by customary law. So, even the basic question when discussing traditional knowledge protection – what does that term refer to? – Could we demand an understanding of customary law? This is one reason why indigenous peoples and local communities have consistently argued that legislation to protect traditional information from misuse and misappropriation should be focused on and promote the implementation of their customary laws.

India has taken a step forward and built a repository of old knowledge of its ages which is increasing periodically. The need for a legal instrument is becoming ever more urgent on an international level. The question of relevance is the linkage of traditional knowledge systems with a modern IPR system. Traditional knowledge can be called the newest member of the IP family. However, in addition to the reluctance of nations, the decisions on addressing this child have to be made considering many factors. A sui generis law is often put in as a possible solution to better protect traditional knowledge, but before a law is enacted, policies and proposals such as the National IP Policy, Digital India, and Startup India will save the increasingly deteriorating traditional knowledge structure. This would not be incorrect to say that the present generation will have to help preserve the precious information of a dying generation in order to ensure the future of species and humanity.

References

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