INTELLECTUAL PROPERTY RIGHTS AND PROTECTION OF TRADITIONAL KNOWLEDGE

By Sabrina Bath

Introduction

India is among the world’s largest countries having a huge variety of biodiversity. It is a noted center for crop variety. Due to its natural riches and unique biodiversity, it has a wealth of traditional knowledge on the benefits and qualities of these biological treasures. Local indigenous communities are concentrated in vast biologically rich and naturally varied locations. For them, the natural environment is a means of living and an integral part of their culture and identity. Indigenous communities are a reservoir of sustainable resource use and traditional environmental knowledge. Traditional knowledge is a critical component in ensuring long-term growth. It is indeed an easily available resource, making it susceptible to exploitation. It is frequently transmitted down through the generations.

Intellectual Property Rights is a term that scarcely needs expansion in the modern era. Anyone who counts in the scientific community is discussing intellectual property rights and the critical nature of preserving commercially viable scientific breakthroughs behind a labyrinth of patents. The worldwide intellectual property rights system’s legality is in doubt owing to the failure to adequately create equitable possibilities for traditional knowledge bearers in comparison to developers and innovators in the organized sector. The prestige ascribed to traditional knowledge raises significant legal, moral, political and social issues. This type of knowledge is not restricted to articulated collections of provable components. However, worldwide intergenerational equity may be irreparably altered dependent on how approaches to appropriate gains are constructed by instilling usage or possession of rights in such knowledge as both use of resources and their availability will be influenced.


Meaning of Traditional Knowledge

The local or indigenous community’s existing knowledge has been conserved and carried down over generations to the point of becoming synonymous with their identity. It is contained in a range of notions, including plant qualities, time computation, yoga practices, food articles and spice applications. The most critical characteristic of traditional knowledge is that it has historical origins and is frequently verbal[1].


Need to protect Traditional Knowledge

The necessity to conserve traditional knowledge has grown in importance throughout time, particularly to prevent its commercial and unlawful exploitation. It is critical to safeguard the indigenous population against such damage and to assist them in preserving such traditional concepts. While safeguarding traditional knowledge is necessary, it should also be used widely and efficiently.

The most challenging element of traditional knowledge is safeguarding it. There has been considerable discussion regarding its protection within an IP regime, but this poses numerous issues including the following:

a) Identifying the intellectual property regime under which traditional knowledge can be protected.

b) How traditional knowledge will be protected in perpetuity as IP protection is available for a limited amount of time.

The protection of traditional knowledge is inextricably linked to the issue of biopiracy. Bio-piracy arises when traditional knowledge is commercialized without the consent of the local and indigenous communities involved with the expertise. However, the primary reasons for granting protection to traditional knowledge are as follows:

1. Prevent unauthorized parties from appropriating components of traditional knowledge.

2. Taking equity into account.

3. Promoting the applications and value of traditional knowledge in evolution.

4. Conservation concerns.

5. Preserving traditional community and practices.


Considerations for classification as Traditional Knowledge

Traditional knowledge is essential knowledge that has been accumulated overages as a result of traditions. Additionally, it frequently takes into consideration the expansion or adaptability of point-to-point output in response to changing societal needs. These advances both extend present consciousness and modify the knowledge transferred to the succeeding age bracket, thereby creating the core of traditional knowledge.

It is worth noting that the core tenets of Traditional Knowledge include the following:

1. Establishment of a new procedure to meet a need.

2. By its ideals, limited to the community or group inside a certain community or group.

3. Employing conventions, the process is passed from generation to generation.


Role of IPR in the protection of Traditional Knowledge

Intellectual property rights are meant to safeguard investment in research and development and to foster innovation by building confidence for inventors. However, how IPRs are viewed and established places a focus on altering their desire to engage. Profit from natural resources through intellectual property rights and traditional knowledge is utilized by private businesses. Due to biopiracy, tribal communities and local farmers are dispossessed of their natural wealth and associated competencies. The code is based on traditional knowledge are expensive owing to the high pricing of such goods. It generates a slew of conflicts over the security of the rights of indigenous communities, nations responsibility to ensure food safety, global environment and longevity of the local flora and fauna.

The World Trade Organization’s (WTO), TRIPS agreement emphasizes patent rights but ignores the rights of traditional knowledge bearers. If IPRs can be understood and modified legitimately and reasonably, they can be utilized to secure traditional knowledge. Instead of numerous inadequacies in the current IPR regime, there are still some essential principles that are employed, either as a defence measure or as proactive security or to safeguard traditional knowledge. To safeguard the rights of indigenous communities to their natural resources and associated knowledge, there is a need to advance both the national and international regime for IPR protection.

Protection of Traditional Knowledge

Traditional Knowledge can be protected in two ways:

a) Positive protection entails implementing legislation, rules and regulations, access and benefit-sharing arrangements, and royalties, among other measures.[2]

b) Defence Mechanism refers to measures used to thwart the acquisition of intellectual property rights over traditional knowledge.[3]


National IPR Regime for protection of Traditional Knowledge

1. Biological Diversity Act, 2002[4]- It promotes the preservation of biological diversity, the equitable sharing of revenues derived from the exploitation of natural resources and the sustainable use of its components.[5] It establishes a framework for property rights that is quite strict on the subject of accessibility to biological resources located outside India. Additionally, it provides for a scheme on how the profits should be shared with those involved in inventing, enhancing and utilizing such innovation by using traditional knowledge commercially.[6]

2. The Copyright Act, 1957[7]- Copyright is used to protect the innovative manifestations of the holders of traditional knowledge particularly those created by indigenous artists, against unauthorized copying and usage. Moral rights apply to the interaction between authors, creators or artists and their work.[8]

3. The Patent Act, 1970[9]- It protects innovative solutions that need a creative stage, are scientifically significant and universally novel. For instance, patents on genetic resources and traditional knowledge may be revoked for commodities that are synthesized from genetic structures, animal or plant species or microorganisms found in the ecosystem.

4. Geographical Indications of Goods (Registration and Protection) Act, 1999[10]- Traditional knowledge is co-owned by indigenous communities and GI is the most appropriate mechanism for preserving it. It is effective for ten years and can be renewed indefinitely.

5. The Protection of Plant Varieties and Farmer’s Rights Act, 2001[11]- It is a unique statute drafted in accordance with the WTO’s TRIPS agreement requirements. It lays down the criteria for plant varieties that are eligible for protection. Plant breeder’s rights are also available on a new variety if it satisfies the critical conditions of distinctive, steady, innovative and uniformity. It can be obtained from traditional plant diversity.[12]


International IPR Regime for protection of Traditional Knowledge

The need of preserving traditional knowledge is increasingly becoming more widely recognized worldwide. In 1978, WIPO and the United Nations Educational, Scientific, and Cultural Organization (UNESCO) formed a joint action to protect traditional knowledge under the IP regime. With the 1992 passage of the Convention on Biological Diversity (CBD), the conservation of traditional knowledge gained increasing prominence.

1. Convention on Biological Diversity (CBD)- It recognizes the importance of traditional genetic asset utilization in ensuring the long-term maintenance of biological diversity. It establishes the right to utilize biological transference from poor nations and highlights that IPRs should not obstruct preservation and optimal use of biological diversity. Likewise, regulations relating to the development, promotion and using traditional knowledge in accordance with the desire of CBD are also incorporated.

2. World Intellectual Property Organization (WIPO)- It has created a sui generic model for the protection of traditional knowledge in liaison with UNESCO.

3. World Health Organization (WHO)- WHO’s support for traditional knowledge exemplifies its involvement in traditional medicine.

Cases of Protection of Traditional Knowledge

1. ‘Kani’ Tribe Case- It relates to a drug that was derived from the active components of the plant called Trichopus zeylanicus (Arogyapaacha) is found in the South-Western part of India. Scientists from Kerala’s Tropical Botanic Garden and Research Institute (TBGRI) discovered the plant. It provides extra energy and boosts the immune system. The medicine is derived from Kani Tribe’s traditional knowledge. It was combined with another to create a substance they dubbed ‘Jeevani, the giver of life. This tonic is prepared in Kerala by a renowned Ayurvedic medicinal firm.

2. Neem Case- A tree well-known in India for its medicinal values and is used as a bioinsecticide. The Neem tree and its therapeutic virtues are referenced in traditional Ayurvedic literature from India. The Europium Patent Office (EPO) revoked patent number 436257 given to the United States of America and the multinational corporation W.R. Grace for a pesticide produced from the Neem tree seed. Despite its antiquity, over 12 US patents on Neem-based emulsions and solutions were recently granted.

3. Basmati Patent- Another issue that caused widespread confusion included a patent issued by the USPTO to an American business named Rice Tec for ‘Basmati rice grains’. It is a fragrant kind of rice that is commonly farmed in India and Pakistan. Apart from those covered by patent law, the award of this invention triggered a slew of other intellectual property concerns, including geographical indications and trademarks. After various deliberations with experts and research on Basmati rice India, a re-examination application was filed. One such claim convinced the USPTO that Rice Tec’s primary allegations were unsupported.

4. Turmeric- The United States Patent and Trademark Office granted the University of Mississippi Medical Center patent rights in 1993 to heal a lesion by administering turmeric. A re-examination application was filed together with roughly two dozen references, which resulted in success.

5. Yoga- An applicant filed his copyright interest in the book concerning the series of asanas with the Copyright Office in 1999 and subsequently filed a supplemental registration, which is a rectification submitted when the original registration is incomplete or inaccurate, in 2002. Based on the supplemental registration, he asserting rights to the sequence of 26 asanas in the book along with the whole book. The same was challenged by Open Yoga Source Unity, a non-profit organization. As a matter of law, it was determined that a sequence of yoga asanas cannot be copyrighted.


Traditional Knowledge Digital Library

The above-stated cases served as a wake-up call for the Indian government, prompting the establishment of the Traditional Knowledge Digital Library (TKDL) and the inclusion of traditional knowledge in the International Patent Clarification System. It is an attempt by India to digitize and record publicly accessible knowledge to enable the organization, diffusion, and retrieving of information in a structured manner.


Conclusion

On examining the numerous facets of traditional knowledge, it can be noted, although it is the cultural backbone of a nation, it is also a valuable asset that must be utilized to achieve growth in the economy. Thus, it is critical to maintaining the careful balance between safeguarding the rights of indigenous communities and realizing the rewards of commercialization of breakthroughs of traditional knowledge in terms of achieving socioeconomic concord. In the Indian context, e sufficient safeguards have been put in place to protect it, the massive rising needs of the people and the scarcity of growth opportunities have transformed it into a treasure. With the existing laws supporting both a patent-friendly climate and the rights of indigenous communities, it is important to support benefit-sharing agreements to preserve harmony between traditional knowledge inventors and holders.

[1] Vatsala Singh, India: IPR vis-à-vis Traditional Knowledge, KHURANA AND KHURANA ADVOCATES AND IP ATTORNEYS (July 12, 2021, 10 PM), https://www.mondaq.com/india/patent/743482/ipr-vis--vis-traditional-knowledge. [2] Ibid., 1. [3] Ibid., 1. [4] The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2002 (India). [5] The Biological Diversity Act, 2002, s. 2 (c), No. 18, Acts of Parliament, 2002 (India). [6] The Biological Diversity Act, 2002, s. 21, No. 18, Acts of Parliament, 2002 (India). [7]The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India). [8] The Copyright Act, 1957, s. 57, No. 14, Acts of Parliament, 1957 (India). [9] The Patent Act, 1970, No. 39, Acts of Parliament, 1970 (India). [10] The Geographical Indications of Goods (Registration and Protection) Act, 1999, No. 48, Acts of Parliament, 1999 (India). [11] The Protection of Plant Varieties and Farmer’s Rights Act, 2001, No. 53, Acts of Parliament, 1999 (India). [12] The Protection of Plant Varieties and Farmer’s Rights Act, 2001, s. 2(j), No. 53, Acts of Parliament, 1999 (India).



Author- Sabrina Bath

Symbiosis Law School, Pune (LLM)

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