This article on traditional knowledge and IPR is written by Aishwarya from ICFAI University.
India is the home to a large number of indigenous people. With more than 84.4 million, India has the largest population of the tribal people in the world. All these tribal people have their own culture, tradition, language and lifestyle. The knowledge possessed by these communities and other local communities are diverse and of great importance to the cultural heritage of India. India has made efforts to protect this “knowledge” through the existing IPR legislation by including it in the patent, copyright, trademark, geographical indication etc. However, due to the dynamic and holistic nature of Traditional knowledge, it hasn’t been able to achieve its objectives. In this essay, the author intends to discuss the gap between traditional knowledge and IPR system, need of sui generis legislation and it’s workability in achieving the objective of protecting cultural values of these communities.
INTRODUCTION
There was a time when there was hardly any medium to convert and protect the knowledge that an individual or a community possess. With the advent of time, the Intellectual property developed as a system to protect the creativity and innovation of the individual. India today has a well-established IPR system. It protects every kind of creativity possessed by an individual in a form of art, work, invention or design. However, the economic potential of traditional knowledge and the need to protect it was realized late by India in the year 1997 when U.S. claimed a patent on turmeric and basmati rice. Soon after, India made tremendous efforts to protect the “traditional knowledge” by enacting two important legislations (Bio-Diversity Act and Protection of Plant Varieties Act). These Acts very well protect the needs of farmers and medicinal plants. Also, TKDL was established. The introduction of Act may facilitate enhanced private investment in selected crops, seed supply systems, agricultural growth and access of technology to farmers at competitive cost. But indigenous peoples and local communities have unique needs and expectations in relation to IP, giving their complexities regarding social, historical, political, cultural dimensions and its vulnerabilities. The protection of TK intersect each and every category of IP and often involve other legal issues, as well as ethical and cultural sensitivity reaching beyond IP.
GAP BETWEEN TRADITIONAL KNOWLEDGE AND IPR SYSTEM
- IPR system too narrow for TK– The IPR system is developed to protect the novelty of any innovation, art, design, work etc. It recognizes the right of such “individual” (copyright), company (trademark) or community (GI) and provides a mechanism to commercially exploit it. IPR system relates to the intellect of right holder and nothing else. However, traditional knowledge is tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations of indigenous and local communities. Here, the word tradition is important since it denotes that such knowledge is originated from culture and belief. This makes it different from other kinds of works. It is not only the intellect that needs protection, it is the dignity of the community that has to be protected along. Indigenous peoples do not view their heritage as property (i.e. which has an owner and is used for the purpose of extracting economic benefits) but in terms of community and individual responsibility. Possessing a song, story or medicinal knowledge carries with it certain responsibilities to show respect to and maintain a reciprocal relationship with the human beings, animals, plants and places with which the song, story or medicine is connected. For indigenous peoples, heritage is a set of relationships rather than just economic rights [1]Gap between intellectual property and traditional knowledge arise here. While IPR framework only focuses on the economic benefit and commercialization of the work, traditional knowledge needs much more protection than that. It is mingled of human rights, customary rights and economic rights. Although copyright law recognizes moral right but all kinds of TK can’t be included in it. This justifies the need of sui generis legislation for the protection of traditional knowledge.
- Documentation and complex mechanism- Another problem which arises with IPR system and traditional knowledge is the documentation and its complex mechanism for protection. Traditional knowledge holders [2] mostly live in the isolated areas of the country and are underdeveloped. It is rare that they would like to undergo such procedure to protect their rights. Instead, hey believe that their rights are better protected by themselves.
- Holistic nature of TK– WIPO has very clearly recognized the holistic characteristics of TK- the spiritual and cultural element are intertwined and are inseparable. Since traditional communities develop knowledge with changing needs so it is dynamic and incrementally improving. TK covers different fields in area of cultural traditions.[3] IPR system can only protect the value derived from a thing like medicinal value of plants varieties (Patent Act, Protection of Plant Varieties Act) and not the tradition relating to it. So, the holistic elements of traditional knowledge may be addressed under a sui gneris legislation.
- Intergenerational and dynamic nature of TK– TK is passed by forefathers from generation to generation and it changes with time. IPR system protects a defined work for a definite period. Protecting traditional knowledge for a definite period will be against the interest of communities. Therefore a sui generis legislation is needed like of Panama that provides for indefinite protection
Although a tremendous effort have been made by government to protect traditional knowledge under the IPR framework. Still it is unable to achieve its objective due to diverse nature of traditional knowledge.
SUI GENRIS LEGISLATION: THE WAY FORWARD AND ITS WORKABILITY IN INDIAN SOCIETY
Sui generis legislation simply means “one of its own kind” which can be formulated in a way that it caters to the needs of the nation. India needs a legislation which listen to the needs of the communities and combines all the moral, human, customary and economic rights within it. WIPO in its discussion on elements of sui generis legislation on traditional knowledge[4] has stated that a distinction should be made between the knowledge which can be commercialized and other sacred knowledge which remains outside its scope. The workability of this suggestion is only possible if we divide various elements of traditional knowledge like spiritual, historic, economic, medicinal and traditional secret. Indigenous communities have suggested that the knowledge which is commercialized must be owned and managed by people who have inherited such knowledge.[5] This can be workable by establishing administrative bodies governed by representatives of the communities.
Another important consideration is reaching out to the communities and spreading awareness regarding their rights. For that, India needs a task force to reach out to every community. Where TKDL can independently work as sui generis. However, there are various tribes like selenase tribe in Andaman which doesn’t allow anyone to enter their area. Campaigns like gene campaign should be encouraged to understand the needs of communities and teach them about their rights.
CONCLUSION AND SUGGESTIONS
In order to frame an Act on sui generis, first, we need to refine each and every categories of TK. Secondly, we need to separate those TK which are holistic in nature, India is country who holds diversified culture. Thirdly we need to analyze whether Indians are ready to compromise with their culture and tradition which has been carried over a period of time. An urgent need is felt for the insertion of sui generis elements into IPR for the protection of traditional knowledge. Such a system would act as a bridge between indigenous community and nationals as well as international legal system in order to secure the effective recognition and protection of rights. It can offer flexibility in developing frameworks that deal with knowledge of biological resources and sharing of benefits derived from the exploitation of resources. The level of literacy, time and money required for the registration of TK, It is highly unlikely that these indigenous people would go through this process, thus leaving the field open for the third party to acquire rights over their resources and associated knowledge. Therefore the registration procedure, cost and litigation procedure of TK should be simplified in order to make IPR system affordable for communities.
SUGGESTIONS
The need for a sui generis form of IPRs was recognized early enough. Any changes not done in this area can open a window of opportunity for biopiracy and misappropriation especially of plant and genetic resources. It can also be said that the absence of a sui generis system means, many communities will be robbed for their TK and their inheritance. Connected to this is that, India lose a lot of revenue which is actually needed for their further development. It is sometimes believed that proper documentation of TK can help in checking bio-piracy. We can also assume that if the material knowledge are documented, it can be made available to patent examiners so that prior art in the case of inventions based on such materials are readily available to them. We also hope that such documentation would facilitate in tracing the indigenous communities with whom benefits of commercialization of such materials and knowledge can be shared.
Access to present databases i.e. TKDL, it could facilitate the establishment gateway for traditional knowledge in field of medicine which electronically link this database with another database of TK. At least minimum harmonization with the structure and content of these data based will achieve. The information shall be reachable over the Internet. The extent at which traditional knowledge is already recorded in the database, it is important to insure that patent examiners are made familiar with this resources.
In addition, to the legal framework, it will include such other elements which will harmonize the legislation with the socio-political and economic-environmental predilections of the state and their commitments connected to the legislative topic without compromising their culture and tradition.
[1] (2017). Genecampaign.org. Retrieved 25 February 2017, from http://genecampaign.org/wp-content/uploads/2014/07/THE_CHALLENGE_TO_INDIGENOUS_PEOPLE_AND_INDIGENOUS_CULTURE.pdf
[2] Indigenous communities, farmers, local communities
