TRADITIONAL KNOWLEDGE BEING EXPLOITED AT THE HANDS OF BIO-PIRACY: CREATING A NEED TO PRESERVE AND PROTECT IT *Kavya B, IVth Year, Gujarat National Law University, Gandhi Nagar, Gujarat

Introduction:

The exact definition of Traditional Knowledge has not yet been laid down because of which there is no universally accepted definition of traditional knowledge. But this term is often referred to with various names such as ‘local knowledge’, ‘traditional ecological knowledge’ and ‘folk knowledge’. Generally, traditional knowledge is nothing but the culture and practices which are developed by the people of the indigenous communities according to their local requirements and needs. This knowledge is then passed on orally from one generation to another generation and is treated as an asset by the indigenous people. Since this traditional knowledge of the communities is transmitted orally and is not fixed or documented, it is treated as an invaluable asset not qualified enough to be protected under Intellectual property law.

The World intellectual property organization-defined traditional knowledge as intellectual property of the indigenous people and termed it as ‘indigenous heritage’ and ‘customary heritage rights.’

The Act on Conservation of Biodiversity of 1992 defined it as “knowledge, innovations and practices of indigenous and local communities around the world, developed from experience gained over the centuries and adapted to the local culture and environment. Traditional knowledge is transmitted orally from generation to generation. It tends to be collectively owned and takes the form of stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community laws, the local language, and agricultural practices, including the development of plant species and animal breeds. Sometimes it is referred to as an oral tradition for it is practised, sung, danced, painted, carved, chanted and performed down through millennia. Traditional knowledge is practical, particularly in such fields such as agriculture, fisheries, health, horticulture, forestry and environmental management in general.”

Bio-piracy of Traditional Knowledge:

The practice of unlawfully exploiting naturally occurring biological materials for commercial purposes, without obtaining the permission of the indigenous people, as such materials were discovered or unveiled from their territory, is called the act of Bio-Piracy. Private organizations indulging in such unethical act for personal profit do not even pay a percentage of fair compensation to the indigenous people.

Bio-piracy is said to come into the picture the moment the naturally occurring genetic resources and traditional knowledge of the indigenous people are patented. It is a theft of the genetic materials obtained from plants and animals in order to earn revenue from the patents granted to them.

Scenarios involving Bio-piracy of traditional knowledge:

  • Neem Patent: When the European patent office granted a patent to a multinational American corporation W.R Grace, which was already granted a patent by the US patent office for its product having fungicidal properties derived from the seeds of Neem. India opposed the grant of a patent on this basis because it claimed that ancient ayurvedic texts of India had mentioned as early as 5000 BC about the medicinal and healing properties of the Neem and as it was already public knowledge in India, it proved that the product of the corporation was neither new nor inventive. Hence the European patent office revoked its patent granted to the Fungicidal product of WR Grace Corporation.
  • Haldi Patent: The University of Mississippi filed an application for patent in December 1993 through its medical centre. They claimed rights overhealing a wound by administering it with turmeric over a period of time. They were granted a patent by the US patent office thinking it to be a Novel idea. But when the Indian government opposed the grant of patent and provided sufficient to establish about the ancient use of turmeric, most preferably dried powder form, for healing wounds. Then the US patent office revoked and cancelled the patent granted in 1998 after conducting re-examination proceedings. This case revealed the vulnerability of traditional knowledge to be misused for commercial purposes by obtaining a patent through deception.

Need for protection of traditional knowledge:

The concern for providing protection to traditional knowledge of the indigenous has seen an increase since the act on conservation of biodiversity was adopted in the year 1992. This act sought for the empowerment of the local and indigenous communities by recognizing the rights of their communities and by creating protocols. These measures taken by it induced a sense of preserving the traditional knowledge within the indigenous people who then restrained its disclosure to the third parties.

The increasing number of bio-prospecting activities on traditional knowledge has increased the threat of bio-piracy towards the culture of indigenous people. Hence the reasons why there is a need for the protection of traditional knowledge is as follows:

  • To enhance the livelihood of the indigenous people developing traditional knowledge: Since indigenous people consider traditional knowledge as their valuable asset and depend on it for their livelihood, thereby making it necessary to prevent it from being exploited by the third parties in an unethical manner.
  • To add profit to the National economy: Traditional knowledge of the indigenous communities have unique methods and processes in developing products, these products are usually known as organic products which have a huge demand among the population because of their nature of purity. The income generated from the commercial use of traditional knowledge can also add value to the economy of developing countries like India.
  • For conserving the environment: Indigenous people through their intelligence develop agricultural activities that are sustainable in nature and conserve the environment. Hence it is necessary that we understand the importance of such knowledge and use it essentially in conserving our environment.
  • To protect such knowledge from bio-piracy: Since bio-piracy is unauthorized use of such knowledge for developing commercial products for the purpose of profit, without giving any compensation to the people responsible for developing such knowledge. It is high time that such knowledge and culture of indigenous is not treated as an invaluable asset and provided with protection and rights just as any other products of intellectual property law.

Measures taken by the Indian Government to protect its Traditional knowledge:

Indian government enacted the Biological Diversity Act in the year 2002, to keep a check on the access of its traditional knowledge by the individuals and their organizations. Its primary aim was to prevent such individuals and organizations accessing traditional knowledge from benefitting unlawfully without sharing the benefits arising from such use to the developers of such knowledge. It then enacted the Geographical Indications of Goods (Registration and Protection) Act in the year 1999 with an aim to protect the products resulting from traditional knowledge through registration under the Geographical Indication Act.

India has also set up a digital library under the name of Traditional Knowledge Digital Library for preserving its traditional knowledge that was spread across various fields. The purpose of such digital documentation of traditional knowledge was to prevent it from being patented by deception.

Conclusion:

India is a land of culture and traditions. It has a history for using traditional methods and organic resources for treating diseases, for agriculture, for scientific, for ecological reasons. India is renowned for using traditional practices such as acquiring medicines from plants from ancient times. As mentioned above, there have been numerous ill-attempts to get our traditional knowledge patented by other countries. Hence protecting traditional knowledge and securing our practices that have been passed down from generations must be our prior concern.

In order to protect our culture, the government has also taken steps. But the vulnerability of traditional knowledge of being subjected to grant of erroneous patents is because the knowledge has not been documented or fixed. To fix this, the step taken by the Indian government in establishing a database or digital library for traditional knowledge is the most excellent way of protecting traditional knowledge. Hence, improvising technicalities to continue protecting our asset of traditional knowledge is our responsibility.

References:

1. Volume 3, Vishwas Kumar Chouhan, Dr., Protection of Traditional Knowledge in India by Patent: Legal Aspect, IOSR Journal of Humanities and Social Science, Issue 1 (Sep-Oct. 2012).

2.  Conservation of Biodiversity Act, 2002.

3. Shri. Vishnu S Warrier, How to protect our traditional knowledge, Intellectual property primer, (Oct.25,2017). http://www.intellectualpropertyprimer.com/biopiracy-traditional-knowledge.html.

4. Shri. Vishnu S Warrier, How to protect our traditional knowledge, Intellectual property primer, (Oct.25, 2017).http://www.intellectualpropertyprimer.com/biopiracy-traditional-knowledge.html.

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