Protection of Traditional Knowledge: International and national Initiatives and Possible ways ahead
Traditional Knowledge (TK) is a cumulative body of knowledge which is handed down through generations through cultural transmission. Modern manufacturing industries are now commercially exploiting TK, without even sharing the benefit accrued from it with the indigenous communities.. This paper shall analyse the need for protection of TK and how commercial exploitation of TK is affecting indigenous communities and aims to find out why current IP systems cannot be invoked for the prevention of indigenous knowledge, the measures taken in the international and Indian scenario for protection of traditional knowledge. Another focus point of this paper is regarding the future of TK protection where author attempts to look into the proposals laid by developing countries and various Jurists like concept of defensive publication with special reference to Traditional Knowledge Digital Library (TKDL), Disclosure of Origin, Benefit sharing with indigenous communities for use of TK, etc.
Around the world, various local communities possess knowledge and practices gained by them through experience of centuries and transferred from generation to generation. This culturally transmitted knowledge is referred to as traditional knowledge. Traditional knowledge is the result of intellectual activities in diverse traditional contexts. The term “traditional knowledge” is a very broad concept, which encompasses within itself indigenous knowledge related to various categories like agriculture, medicine, bio diversity as well as expressions of folklore in the form of music, dance, songs, handicraft, designs etc.
Traditional Knowledge is dynamic in nature and it is difficult to coin a concise definition for the term which will cover all aspects it holds. Broadly there are certain cumulative body of knowledge which is handed down through generations through cultural transmission; this is known as traditional knowledge. As per the official definition of WIPO “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 resulting from intellectual activity in the industrial, scientific, literary or artistic fields”.
TK permeates into wide regimes of human interest like agriculture, bio diversity and medicine to say a few. It is originated from local or traditional community and is the result of intellectual activity and insight in a traditional context, including knows how skills, innovations, practices and learning embodied in the life style of communities. In fact it is handed down through generations and can provide for social cohesiveness and cultural identity .Traditional knowledge is “traditional” only to the extent that they are part of cultural traditions of a particular society. It does not indicate that it is static or ancient. It represents the cultural values of people which were derived from years of experience.
Discussions over protection of TK is taking place now because a large number of nations, especially from third world, believes that they are not deriving benefit of their vast traditional resources though they are rich in them. Indigenous communities have developed their knowledge through generations and it is essential that those who are trying to exploit its value should give a due share of their benefits to the community who had preserved this knowledge for years.
Need for Protection of Traditional Knowledge
Anywhere in the world people need protection for their properties; tangible property can be easily protected, but the case of intangible property is different. They require much more effective mechanisms like patents, copyrights, trademarks, geographical indicators etc. These mechanisms can be used to protect individual’s intangible properties. Question raised is whether this mechanism is useful in protection of properties owned by the communities. Challenges to TK are diverse and far reaching and involves many areas of law and policy which is even beyond the expansive view of intellectual property.
Indigenous people have an immense understanding about their complex ecosystems, properties of plants and animals and regarding the techniques of using them based on their living close with nature for centuries. This knowledge when transformed into a formal specification is sources of wealth. Generally these communities at large are in the grip of illiteracy and poverty and are unable to develop their own resources. Modern globalised
World have witnessed the conversion of collective knowledge of the society into proprietary knowledge of a few.
Preservation of TK is intended to provide self identification to these indigenous communities and thereby provide continuous existence of indigenous people. The maintenance of the distinct knowledge systems that give rise to TK is vital for the future well being, development, cultural and intellectual vitality of indigenous communities.
In recent years patenting of traditional knowledge based products by MNC’s have been a great concern. Biopiracy can be regarded as double theft because firstly it allows theft of creativity and innovation and secondly it establishes exclusive rights on stolen knowledge and steal economic options of every day survival of indigenous communities on the basis of their common knowledge. Bio piracy happens in cases where patents are granted according to the existing national legislations which does not recognize certain forms of public disclosures as prior art as in the case of USA. The developing nations and NGO’s are vigilant in preventing bio piracy and this can be witnessed from the results of several cases like turmeric, neem, ayahuasca etc.
Limitations of IP based protection
Current IP system considers only documented knowledge as prior art. This is contrary to the concept of TK which may not be available in a systematic and organized manner. Besides even if it is recorded it may be recorded in the local language like old manuscripts in Sanskrit which the foreign patent offices may find difficult to access.
The current IP system is based on granting exclusive rights to individual private property which is contrary to the concept of TK, a community based knowledge and granting exclusive rights to a particular individual or corporation for collective knowledge of the community would be against the nature of TK.
One can rightly say that current patent system provides stand for protecting the economic interests of big corporations that have slightly altered TK to bring out a commercial product and left out the entire community which developed this knowledge to the present stage. Basically the patent regime lacks the concept of community patent which can used to protect collective knowledge of the society and this had led to the questions of who can be the owner of patents, based on TK and how benefits incurring from such patents can be distributed among the society who are the actual owners of that knowledge.
Current patent system is based on the principles of novelty, non - obviousness and industrial application and hence it cannot be invoked for giving positive protection to TK. TK has evolved through generations by trial and errors and therefore lacks the concept of novelty. Also TK as such may not be having any commercial application, it indeed requires certain changes and it is totally unjust to ignore the role of the entire society and grant economic rights to those who came out with the commercial application of community knowledge. So we can see that existing patent system is incapable of giving protection to TK as there is an essential difference between both the concepts.
International Initiatives for protection of Traditional knowledge
Traditional Knowledge is a complex multi facet issue. Many countries and Organizations worldwide are considering how to address this issue at international, regional and national levels .TK is discussed in number of forums like WIPO, UNCTAD, UNEP/ CBD which have co operated with each other to conduct studies in the area of protection of indigenous communities. WIPO and UNEP had undertaken joint studies relating role of IPR and sharing of benefits with communities for use of TK while on the other hand CBD and FAO had undertaken studies relating to common areas in agriculture.
Convention on Biological Diversity
CBD can be regarded as the first international initiative to recognize the contribution of indigenous and local communities in conservation of biodiversity.
.Article 8(j) of the convention provides that “each contracting party shall as far as possible and as appropriate, subject to its national legislation respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biodiversity. Article 10 (c) and 18 (4) also makes references to the rights of indigenous communities
Art 8(j) is not free from limitations, the said article does not talk about protection of TK but it vaguely calls on the parties to respect, preserve and maintain it. It does not guarantee indigenous people any rights over their collective knowledge. Besides convention leave preservation of TK at discretion of parties. Phrases “as far as possible” in art 8 (j) indicates that the convention does not makes a mandatory requirement about protection of rights of indigenous communities.
Though there are flaws, CBD has the most important place as an international instrument which officially recognized the rights of indigenous communities.
Trade Related Aspects of Intellectual property Rights ( TRIPS agreement)
TRIPS agreement also has some provisions which can be applied in a limited way for protection of traditional knowledge. Article 1 of TRIPS Agreement provides that members may but shall not be obliged to implement in their domestic laws more extensive protection than that is required by the agreement, provided that such protection does not contravene the provisions of this agreement. Many Jurists have opined that this provision can be invoked for protection of TK. They argue that absence of term TK in the agreement does not prevent any member from enacting any provision for protection of TK.
TRIPS requires member state to grant patent only to that inventions which are new , involving an inventive step and are capable of industrial application. These attributes cannot be applied in the field of TK, as it is not new and is incapable of industrial application as such. But it is to be noted here that the same provision can be invoked to prevent biopiracy if TK is regarded as a prior art. TRIPS agreement by itself does not create any measures for protection of traditional knowledge and innovations of indigenous people instead it creates measures for establishing alternative measures for its protection.
Besides there were lots of discussions regarding TK protection at the TRIPS Council. These initially took place in the context of implementation of Art 27.3(b). The fourth meeting of the WTO Ministerial Conference which took place in Doha in November 2001 a Ministerial Declaration was adopted to which the member states instructed the TRIPS Council to examine the relationship between the TRIPS Agreement and CBD and also to make guidelines for protection of traditional knowledge and folklore.
UN Declaration on Rights of Indigenous persons
UN declaration on Rights of Indigenous persons was adopted by UN general assembly during its 62 session on 13th September 2007.Though a General assembly declaration is not a legally binding instrument, it can be regarded as a dynamic development for setting a standard for protection of rights of indigenous persons. General assembly recognized an urgent need to respect and promote the inherent rights of indigenous peoples which they derived from social structures.
It urges the parties to make mechanism for prevention and redress of any action which has the effect of depriving indigenous people of their integrity or their cultural values or identities. Art 31 is an important attempt to protect TK. It asks the states to take all effective measure to recognize and protect the cultural heritage, traditional knowledge, traditional cultural expression as well as the manifestations of their sciences, technology and cultures. Declaration acts as a dynamic measure for creating international legal norms for protection of TK and also it necessitates the need for an international treaty portraying the concept of TK protection.
Nagoya Protocol on Access to genetic Resources and the Fair and Equitable Sharing of Benefits Arising From their Utilization
There have been several discussions and debates as to whether TRIPS is in conflict with. After several years of debate at various fora, the parties to the CBD met at Nagoya, Japan in October 2010 and finalized the draft protocol which defines the terms for access to genetic resources, their utilization and fair and equitable sharing of benefits from such utilization. Though main objectives of this protocol is to ensure fair and equitable sharing of benefits arising out of genetic resources and to provide for access to genetic resources and transfer of technology for protection of biodiversity, it has many provisions which can be useful for the protection of indigenous knowledge. The protocol emphasizes on the need for development of a global multilateral benefit sharing mechanism providing for fair and equitable benefit sharing associated with TK related genetic resources which occurs in trans boundary situations where is not possible to take prior consent of the community.
WIPO -The Intergovernmental Committee on Intellectual Property Genetic Resources and Traditional Knowledge
In 2000 the WIPO General assembly established the IGC as a forum for discussion of intellectual property issues in relation to access to genetic resources, benefit sharing and
Protection of traditional knowledge and expressions of folklore. It acts as an international forum for international policy debate, development of legal mechanisms and for creating practical tools for protection of traditional knowledge and traditional cultural expressions against misappropriation and misuse. IGC has produced number of practical outcomes which includes, a toolkit for the management of IP in the context of documenting TK and genetic resources, a practical guide for protection of traditional cultural expressions, proposal for revision of international patent classification to contain categories of TK Committee is trying to bring about an international understanding regarding the principles that should guide the protection of traditional knowledge.
Besides all these international initiatives last decade has witnessed many regional initiatives for laying down measures for protection of TK. African countries under Organisation of African Union prepared a model law on community rights and access to biological resources. From the African region itself, the African Regional Intellectual Property Organization (ARIPO) in 2010 came out with protocol for protection of TK and folklore known as the Swakudump Protocol on the protection of Traditional Knowledge and Expressions of Folklore. There is another group known as the Mega diverse countries. This group includes seventeen nations including India which are rich in bio diversity. The Cusso Declaration on Access to Genetic resources , Traditional Knowledge and intellectual property rights of like minded mega diverse countries, 2002 stressed on the importance that should be given for protection of bio diversity and associated TK. It also stressed on the need for an efficient benefit sharing mechanism.
Indian initiatives for protection of Traditional Knowledge
To deal with issues pertaining to protection of Traditional Knowledge Indian parliament had enacted the following three legislations:
Protection of Plant varieties and Farmers Right Act,2001(PPFR Act)
India is the home for many crops, these crops were identified from the wild, selected and cultivated by Indian farmers for years. During this long process of selection of crops farmers had gained lot of knowledge about each variety of crops. India enacted a sui generis system in 2001 in the name of The Protection of Plant Varieties and Farmers rights Act. Though the Act is primarily based on International Convention for protection of New varieties of plants, it includes a number of provisions which are not included in the convention. This Act forms an independent sui generis form of protection to new varieties of plants.
An important feature of this Act is the maiden attempt of introduction of benefit sharing between breeders and farming or tribal communities who have contributed to genetic diversity used by the breeder.To make this meaningful, mandatory disclosure of geographical location from where the genetic material has been taken and information relating to the contribution of farming communities have been made. Besides the breeders who want to use existing varieties for creating new varieties cannot do so without the express permission of the farmers involved in the conservation of such varieties.
Though the Act is an exclusive legislation on plant variety protection, yet the provisions of community rights under section 41 and concept of benefit sharing, can be invoked for protection of knowledge on indigenous communities at least to the extent of plant varieties
Biological Diversity Act, 2002
As a signatory to CBD India had committed to make a national legislation which provides for access to biological resources and benefit sharing. In order to fulfill this obligation Indian government has enacted the Biological Diversity Act in 2002. The Act provides for access to biological resources of the country with the purpose of securing equitable benefit sharing arising out of commercial use of those resources. The Act recognizes the Knowledge of local communities and emphasize on the need to protect them.
Though the Act was primarily enacted for providing free access to biological resources of the
Country by foreign nationals institutions and companies, it contains many restrictions regarding the same. A foreign national or a body corporate not registered in India is not allowed to use or obtain any biological resource occurring in India or any knowledge associated thereto for research or commercial utilization without the previous permission of NBA31. Section 4 of the Act restricts the transfer of results of any research relating to any biological resources obtained from India to any foreign nationals or corporate. Measures have been taken in the act to prevent instances of bio piracy by restricting any person from applying for intellectual property rights of any nature within or outside India for any invention based on any research or information on a biological resource obtained from India without previous approval of NBA.
As mentioned earlier Act recognizes the need for sharing monetary gain accrued from using biological resources or knowledge associated thereto with persons who have conserved these resources for years. National Biodiversity Authority has been empowered under section 21 to determine the ways and means of benefit sharing. Various means of benefit sharing include grant of joint ownership of IP rights with NBA or If benefit claimer can be identified, then with them, transfer of technology, location of production, research and development units in those areas which will benefit the lives of the benefit claimers or by setting up of venture capitals or monetary compensation to the benefit claimers. Another feature of the Act is that it makes biopiracy a cognizable and non-bailable offence with a punishment of imprisonment up to five years and monetary compensation up to five lacks.
The Patent ( Amendment) Act , 2005
TRIPS agreement signed along with WTO agreement in 1995 provides for making certain changes in domestic patent laws, for reaching a uniform system of legislations relating to patent throughout the world. In order to fulfill this obligation under TRIPS patent act was duly amended in 2005. This amendment introduced into Indian IP system certain new measures for protection of TK. The new amended Act in the area of specification of inventions which are not patentable made an addition that ‘an invention which is mere new use for a known substance’ and ‘ an invention which , in effect , is traditional knowledge or which is and aggregation or duplication or known properties of traditionally known substances’ will not be an invention
Another provision is inclusion of new provision for opposition of patent, on specific grounds under section 25(1) of the Act. This provides that after publication of patent application any person can in writing make an opposition to the controller of patents on the ground of lack of novelty or inventive step, or non disclosure or wrongful disclosure of source or geographical origin used in the invention and anticipation of invention by the knowledge, oral or otherwise available within any local or indigenous groups in the complete specification
All the above provisions are defensive in nature and can help to oppose any patent granted to an invention which is based on the knowledge available within the indigenous groups of this nation. But these provisions are also not capable of covering the entire area covered by TK, which necessitates the need for a sui generis system for protection of TK.
Future of Traditional Knowledge protection: Proposals by developing Nations and Jurists
There has been extensive discussion within the international community as to the nature of protection that is to be given for traditional knowledge. Solutions have been proposed in the form of defensive protection and positive protection. This section discuss about the various proposals which are intended for the protection of TK which are advanced from various world nations at different international fora. Most of these proposals are now in practice through various national legislations. An effective implementation of these proposals can result in sustainable use of knowledge of indigenous communities.
One of the problems related to TK is lack of systematic documentation of its process of creation. Defensive publication is a practice of disclosing details about TK to the public, and thereby preserving them as public property and preventing others from claiming rights over it. Documenting TK will convert it into prior art and the invention based on this can no longer be considered as novel, and thus patent cannot be granted.Besides this such a document on TK will be useful for research and will be an impetus to invention both in India and abroad, but it is to be noted that, this will be useful to indigenous communities only if there is a proper mechanism for benefit sharing.
Idea bank is a defensive strategy, which can be used to protect indigenous resources from bio piracy. Documentation of TK provides an easy reference for the foreign or national patent examiners to check for prior art in a patent application based on TK. An idea bank is a digital library which holds the proven or valid ideas of ancient people and also the conceptual ideas of the present for the future knowledge development. Traditional Knowledge Digital Library (TKDL) is an Indian example of idea bank
Disclosure of Origin
Disclosure of origin is one of the proposals put forward by developing nations in WTO for protection of biological resources and TK. A patent applicant should be asked to provide along with the application, details of country from which he borrowed information regarding his invention, and provide evidence to show that all legal requirements of the particular country for access and fair and equitable benefit sharing arising from commercial use of such resources has been fulfilled . Besides it should be shown that Prior Informed Consent had been obtained from the national authorities or the indigenous communities for taking and using their traditional resources.And if it’s found that wrongful or missing disclosure is made then the patent application should be rejected. Disclosure mandate is intended to facilitate the existing IP system to address the issue of protection of TK.
A requirement in all patent laws for the applicant to disclose the source of origin of the genetic resource or associated TK on which the application is based is argued to increase the transparency in patent proceeding and will further facilitate the enforcement of benefit sharing principles. Developing countries have codified a draft provision for a new article to be inserted in to the TRIPS as article 29bis, which summarizes all the proposals for DOO and provides for stronger enforcement provisions.DOO can be used as a defensive strategy against bio-piracy.
Development of a sui generis system
Current IP system has proved to be inefficient to deal with the issues relating to protection of TK, this was reason for a proposal of development of a sui generis system for protection of TK. Sui generis systems are alternate models created outside the prevailing intellectual property regime. Article 27.3 of the TRIPS agreement asks states to provide for a sui generis system for protection of plant varieties and traditional knowledge. Developing countries are looking at sui generis clause as a window, an opening, to enact legislations that goes beyond IPR for protecting rights of farmers, indigenous and local communities who apply creative intellectual efforts and develop useful technologies with bio diversity and their knowledge of the same.
A sui generis legislation in TK which recognizes the autonomous character of TK is able to ensure a more objective valuation of TK. A system that views TK as a composite resource having, both economic and cultural features has a better prospect of ensuring protection of TK. National measures of a sui generis system backed by international regulation can definitely help in preserving the knowledge of communities from misappropriation53.
Some countries have already enacted or are in the process of enacting a sui generis system of protection of TK. Philippines is one among those nations who has enacted a legislation giving indigenous communities right over their traditional knowledge54
The Guatemalan law also seeks to preserve and promote the wider use of its TK by placing expressions of national culture including medicinal and music under the protection of the state. India also by Biological diversity Act has made an attempt to make a separate system of law for protection of genetic resources and associated TK.
Even while raising demands for a sui generis system for TK protection, there have been concerns regarding the efficiency of such a system. As we have pointed out earlier in this paper diversity is the very essence of TK systems, so concerns has been expressed regarding the feasibility of a single system which covers the entire aspects of TK.
Equitable benefit sharing
Benefit sharing is actually a theme that runs through all facets of TK protection.CBD was the first international initiative to recognize the concept of access to genetic resources coupled with sharing of benefits. According to the principle of benefit sharing, the TK holders are entitled to receive an equitable share of benefits that arise from use of TK, which may be expressed in terms of compensatory payments or other non monetary benefits. The concept of benefit sharing is appropriate in situations where exclusive property rights are considered inappropriate. It is believed that the benefits accruing to communities enable them to continue their lifestyle and thereby can help in preservation of TK.
Developing nations have recognized the need for a benefit sharing system and has incorporated this in their national legislation. In India both the Protection of plant varieties and farmers rights Act and the Biological Diversity Act prescribes for an efficient benefit sharing mechanism. But it is a fact that this national mechanism finds it difficult to deal with Trans-boundary situation which further highlights the need for an international regulatory mechanism providing for access and benefit sharing.
Current state of negotiations
So far IGC has come out with various studies and have documented the views of states and indigenous communities w r t to protection of TK. IGC meetings have always resulted in divergence than convergence when it comes to the matter of protection of TK. The prima facie reason for this is the difference between the developed and developing nations relating to TK.. Working groups of IGC is currently working on a consolidated text for TK protection and on the proposal of mandatory disclosure requirement and defensive databases.Besides this IGC is asked by WIPO general assembly to submit a text of an international document to protect TK, TCE and GR. IGC has also prepared draft proposals and guidelines for protection of TK and TCE.
At TRIPS council, developing nations have already made proposals for amendment of TRIPS agreement and introduction of mandatory disclosure requirement. Various commentators are saying that the amendment of TRIPS is not going to happen in recent years as a much broader consensus is required for reaching such a stage. Besides this the mandate given by Doha ministerial declaration is not yet fulfilled.
Although there are setbacks developing nations continue to use TK as a bargaining issue. They are pressing for discussions at IGC for a misappropriation regime that can be implemented at the national level. Along with this there are various regional initiatives of developing nations currently engaging in discussions on cooperation and consultation regarding protection of TK
IP rights are given with a purpose to reward the innovators of new scientific inventions or any creative work and there by promoting development in the world. IP rights promote growth by leveraging ideas and knowledge into economic assets. As we have seen already traditional communities posses considerable knowledge which within itself retain vast amount of commercial and economic value. The current IP regime fails to provide any rewards to the community based knowledge which is available in the public domain
The era of globalisation has witnessed blatant misuse of TK and granting of patent for TK based products without giving importance to interests of indigenous communities. Bio piracy and other patenting of innovations based on TK have posed a challenge before the existing IP regime. The disparity in wealth between the knowledge holders and the beneficiaries of that knowledge highlighted the need for protection and prevention of misuse of TK. Issue relating to protection of TK is very wide, a single solution can hardly be expected to meet such a wide range of concerns and objectives. There are two distinct options for the TK possessors and practitioners, either TK should be protected in a positive way which prevents evasion of knowledge of indigenous communities or by allowing access to indigenous knowledge and making effective mechanism for benefit sharing and compensation.
Protection of TK indicates making TK the sole property of its practitioners and thereby denying grant of IP rights on TK based products and thus facilitating transmission of knowledge to future generations. But this kind of restrictive approach is not useful for the development of the society. TK within itself encompasses lots of commercial value, which when properly changed can be used for the development of humanity. But we know that traditional community lack technological development to facilitate the change of TK into commercial products. Protection of TK per se offers benefit to the community as a whole only if the said TK is developed to reach a point in which the said TK is capable of generating commercial value. In this context the second option is better for the interest of the society as a whole. It promotes the commercial potential of TK and permits patents or a quasi licence on development made on the knowledge available in public domain.
The possessors of TK hold a moral right to their knowledge. But while saying this we should not forget that developments of indigenous communities are a must requirement for the development of a country. TK if kept secret and not shared will continue to be a non economic entity. Sacrificing economic development of the society in the name of protection of moral rights of a particular community is not a justification. Thus main concern of protection of traditional knowledge should be regarding sustainable use of indigenous knowledge and benefit sharing.
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