Role of IPR in the Protection of Traditional Knowledge

Introduction

Traditional knowledge refers to skills, knowledge, practices or innovation that has been developed, sustained and practiced within the indigenous and local communities all over the world.[1] The presence of Traditional knowledge can be seen in plant-based medicines, health products, cosmetics, agricultural, non-wood forest products as well as handicrafts used today. Stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community laws, local language and agricultural practices including the development of plant species and animal species can also be called as Traditional Knowledge. These practices are a part of cultural/ spiritual identity within a community and are transmitted orally from generation to generation. It has proven to enhance and promote biodiversity at the local level and has also aided in maintaining healthy ecosystems. [2]

The need to protect Traditional Knowledge

Traditional Knowledge plays an important role in the conservation of biodiversity and its traditional uses. There is a need to protect it from bio-piracy. Bio-piracy is when an entity makes use of traditional knowledge illegally and reaps benefit from such exploitation without the prior consent of communities and also does not share any benefits with them. There have been a lot of challenges to the protection of Traditional Knowledge under Intellectual Property (hereinafter referred to as IP) laws such as;

a)  The IP laws under which Traditional Knowledge can be protected.

b)  The patent laws are only provided for a certain period of time and traditional knowledge has been practiced from time immemorial.

 International Scenario

At the International level, The Convention on Biological Diversity (CBD) and Nagoya Protocol was also adopted to save Traditional Knowledge. Article 8(j) of the CBD provides for maintaining knowledge held by indigenous communities and promoting its application based on fair and equitable benefit-sharing. [3]

Indian Scenario

There is no particular law for the protection of traditional knowledge in India. The two methods to protect Traditional Knowledge from being exploited are through defensive protection and positive protection. Defensive protection prevents people outside the community from misusing the IP rights of Traditional Knowledge.  Positive Protection means protecting Traditional Knowledge by enacting laws, rules and regulations, access and benefit-sharing provisions, royalties, etc. 

  • Patent Act, 1970

The Patent act can be used as a defensive measure against the misuse of Traditional Knowledge. According to section 3(p) of this act, an invention which is an aggregation or duplication of known properties of traditionally known component/components is not a patentable invention.  Section 25 and 64 of the Patent Act, 1970 contains grounds for revocation of the patent application on the basis of traditional knowledge.

  • The Copyright Act, 1957

The Copyright Act, 1957 does not specifically mention Traditional Knowledge but Section 31A of the act provides for the Protection of unpublished Indian work but it is only for a limited period of time.

  • Biological Diversity Act, 2002

This legislation provides for the promotion of conservation, sustainable use, and documentation of biodiversity through biodiversity registers.  According to section 36 of the act, measures are needed to be taken for the protection of knowledge of the local community [4]. Section 8 and 22 of the act provide for the establishment of the National Biodiversity Authority and the State Biodiversity Board respectively.

  • Trade Secret

It is one of the most important IP rights to protect traditional knowledge. It protects undisclosed knowledge through secrecy and access agreement. There is no specific legislation in India to protect trade secrets and confidential information. It is protected through contract law or equitable doctrine of breach of confidentiality. 

  •  Plant Varieties and Farmer’s Rights Act, 2001

This Sui Generis legislation for the protection of plant varieties and farmer’s rights was enacted in 2001. The plant varieties that are protected under this act include novel variety, extant variety, essentially derived variety and farmer variety.

  • Traditional Knowledge Digital Library

In 2001, the Traditional Knowledge Digital Library was set up in collaboration between the Ministry of AYUSH and the Council of Scientific and Industrial Research (CSIR). It contains voluminous documents and work of Indian traditional knowledge but it has limitations like translation problems. The public disclosure of entire traditional knowledge can also be disadvantageous as it can lead to piracy issues. Traditional Knowledge also has no documentary record since it is mostly in an oral manner.

  •  Traditional Knowledge Data Banks (TKDB)

India was the first country to launch TKDB to prevent the misappropriation of Traditional Knowledge. It’s objective is to prevent invalid patents from being granted. This is achieved by documenting traditional Knowledge available publicly in the existing literature and converting it into digitally accessible pages.

  • Geographical Indication

A Geographical Indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation due to its origin [5]. GI protection is valid for ten years but it can be renewed any number of times thus can be protected for an infinite amount of time. The indigenous communities have imparted specific characteristics to their products by maintaining their traditional methods for centuries. GI is a tool that recognises their efforts by preventing it from being misused by other parties. The only criteria needed is to maintain the natural and cultural characteristics of the given products. For example, a few traditional families in Aranmula, a village in the Pathanamthitta district of Kerala know the method to manufacture a type of metal mirror called ‘Aranmula Kannadi’. Knowledge associated with goods registered under the Geographical Indications of Goods (Registration & Protection) Act can be protected effectively if it is kept as a closely guarded secret by the holders of Traditional Knowledge. 

Conclusion

India does not have a water tight law for the protection of Traditional Knowledge. Unfair exploitation of Traditional Knowledge is a growing concern in the fast-developing world. The local community who develop this knowledge often gets cheated by multinational companies who utilize their methods and resources without giving them recognition or share of benefits.  In order to bring about a permanent solution to this problem of biopiracy, it is important to enact important amendments in the world’s intellectual property system.

REFERENCES

[1] Vatsala Singh, IPR Vis- à- Vis Traditional Knowledge, Mondaq (13 August, 2020), https://www.mondaq.com/india/patent/743482/ipr-vis–vis-traditional-knowledge#:~:text=Unlike%20other%20categories%20of%20intellectual,for%20revocation%20of%20a%20patent.

[2] Anu Bala, Traditional Knowledge and Intellectual Property Rights: An Indian Perspective, SOCIAL SCIENCE RESEARCH NETWORK (Novemeber 2011) https://dx.doi.org/10.2139/ssrn.1954924.

 [3] The Convention on Biological Diversity, 1993, art.8(j).

[4] Biological Diversity Act, 2002, s. 36.

[5] Vijayalaxmi Rathore, Geographical Indication Protects Indian Traditional Knowledge, Mondaq, (August 13, 2020), https://www.mondaq.com/india/trademark/854092/ geographical-indication-protects-indian-traditional-knowledge

The author is Anjitha Santosh.

Leave Comment

Your email address will not be published. Required fields are marked *