CULTURAL HERITAGE AND INTELLECTUAL PROPERTY PROTECTION

Abstract

Cultural heritage preservation faces unprecedented challenges in an era of rapid globalization and technological advancement. The intersection of intellectual property (IP) rights and cultural heritage preservation is fraught with complexities, particularly in the context of India. This research article explores the intricate relationship between IP and cultural heritage preservation, focusing on India’s efforts to protect its rich cultural expressions through mechanisms such as geographical indications (GIs) and traditional knowledge documentation. GIs have emerged as a vital tool in safeguarding diverse cultural expressions, with India boasting over 400 registered GIs. Furthermore, the case study of the Kani tribe exemplifies the transformative impact of recognizing traditional knowledge and implementing IP protection mechanisms. Through the development and commercialization of the herbal formulation “Jeevani,” a partnership between the Jawaharlal Nehru Tropical Botanical Garden and Research Institute (JNTBGRI) and the Kani community has preserved indigenous wisdom while generating tangible economic and social benefits. However, challenges persist, particularly in securing international IP protection and combating infringement cases. Despite these challenges, the case of the Kani tribe underscores the potential of IP protection to empower traditional knowledge holders, foster sustainable development, and preserve cultural heritage for future generations.

Keywords

Cultural Heritage, Intellectual Property, Geographical Indication, Kani Tribe

Introduction

Cultural heritage stands as a testament to the collective memory, identity, and legacy of societies throughout history. It embodies the richness of human creativity, encompassing tangible artifacts, intangible traditions, and natural landscapes that have shaped the diverse tapestry of cultures worldwide. However, in an era marked by rapid globalization and technological advancement, the preservation of cultural heritage faces unprecedented challenges. Amidst this landscape of change, the intersection of intellectual property (IP) rights and cultural heritage preservation emerges as a critical focal point, fraught with complexities and implications for the future.

Intellectual property, a legal framework designed to protect the fruits of human intellect and creativity, plays a pivotal role in fostering innovation, economic growth, and cultural expression. Yet, when applied to cultural heritage, this framework encounters a myriad of ethical, legal, and practical dilemmas. Questions surrounding ownership, control, access, and commodification arise, raising profound concerns about the equitable treatment of heritage resources and the rights of indigenous communities and marginalized groups. In this research article, we embark on a journey to explore the intricate relationship between intellectual property and cultural heritage preservation strictly in context of India.

Due to the diverse range of traditional expressions, various forms of intellectual property (IP) rights are employed to safeguard them. The significance of patents, trademarks, copyright, geographical indications, and trade secrets varies depending on the nature of the subject being protected—be it music, a botanical formulation, or expertise in a specific craft.

Geographical Indications as means for protection in India

India has long been a bastion of tradition and expertise across various artistic and craft disciplines, spanning millennia. In recent years, the Indian government has redoubled its efforts to fortify its intellectual property (IP) framework, with particular emphasis on Geographical Indications (GIs), which have emerged as a focal point in both national legislative initiatives and international accords.

A noteworthy development in this regard is the thorough examination of traditional knowledge undertaken during last year’s parliamentary review of India’s IP regime. Parliament recognized the imperative to address the challenges stemming from the lack of documentation of traditional knowledge and the obstacles hindering its protection through conventional IP mechanisms. It proposed comprehensive measures to bolster initiatives like the Traditional Knowledge Digital Library (TKDL) and underscored the importance of leveraging GIs to effectively integrate traditional knowledge into the broader IP framework.

GIs, as a tool, aptly ensure the provenance of products by signaling a specific geographical origin imbued with distinctive qualities or reputation. It’s pertinent to note a divergence between the European and Indian GI systems – while the EU currently extends GI protection primarily to agricultural products and beverages, discussions are underway regarding the potential expansion to cover artisanal products. In contrast, India’s GI framework encompasses handicrafts, underscoring its commitment to safeguarding diverse cultural expressions.[1]

Presently, India boasts over 400 registered geographical indications, serving to honor the superior quality of local produce, such as the revered Morel mushroom, and the unparalleled craftsmanship of artisans, exemplified by the renowned Channapatna toys of Bangalore. This recognition not only enhances the prestige of Indian products in global trade but also underscores their significance in international agreements like the recent India-EU Trade and Investment Agreements.

Furthermore, industries pivotal to the Indian economy, such as fashion and textiles, stand to benefit significantly from robust intellectual property protection. GIs have played a pivotal role in safeguarding specific fibers and textiles traditionally woven across multiple regions of India, while trademark protection remains instrumental in delineating the origin of these products, whether from the producer or retailer.

In essence, the concerted efforts to fortify India’s IP framework, particularly through the recognition and protection of GIs, underscore the nation’s commitment to preserving its rich cultural heritage and fostering economic prosperity. This not only ensures the continued recognition of Indian products on the global stage but also sets a precedent for other nations to safeguard and celebrate their unique cultural expressions.

Other IP Rights as tools used to protect Indian cultural knowledge

Various traditions find expression through art forms such as music, painting, and literature, which often fall under the purview of copyright protection. However, the intersection of copyright and tradition reveals a nuanced dynamic, particularly concerning the temporal constraints inherent in copyright laws. India, as a signatory of the Berne Convention, adheres to a copyright term of 60 years post the author’s demise, after which the work enters the public domain, allowing for reproduction and commercialization without prior authorization.

It is important to note that certain works inspired by Indian traditional cultural elements, such as clothing patterns, may not qualify for copyright protection due to their lack of originality. Nevertheless, copyright protection may be extended to works that reinterpret these traditional expressions, adding a layer of creative novelty.

In addition to artistic traditions, other facets of tradition intersect with intellectual property rights, notably in fields like medicine. Here, the realm of patents often comes into play, albeit with unique challenges. Patents necessitate novelty, which can pose conflicts with traditional knowledge. For instance, traditional remedies used by indigenous communities for specific ailments may not meet the novelty criterion for patenting. Nonetheless, research into alternative applications of these traditional remedies has led to significant advancements in medicine, yielding several patented drugs.

India has actively combated “biopiracy,” wherein foreign entities exploit the country’s cultural heritage for commercial gain, particularly in the realm of patents. Initiatives such as establishing a database of protected traditional knowledge and enacting the Biodiversity Act of 2002 aim to prevent misappropriation of indigenous resources.

A notable instance illustrating India’s stance against biopiracy is the opposition to the Neem Patent filed by W.R. Grace and the US Department of Agriculture at the European Patent Office. The patent claimed a method for controlling plant fungi infections using a Neem-based oil formulation, a technique long-known and utilized in India. In response, the New Delhi Research Foundation for Science, Technology and Ecology challenged the patent, citing relevant prior art, leading to its revocation due to lack of novelty and inventive steps.

This case underscores India’s proactive approach in safeguarding its cultural heritage and traditional knowledge from exploitation, setting a precedent for protecting indigenous resources on a global scale. Through robust intellectual property frameworks and vigilant opposition to biopiracy, India endeavors to preserve its cultural legacy while fostering innovation and equitable access to traditional knowledge.

Case Study – Kani Tribes

In the heart of the Western Ghats in Kerala, India, the Kani tribe, an indigenous community, has long held profound traditional knowledge about the medicinal properties of various wild plants found in the region. This knowledge has played a crucial role in their survival, allowing them to navigate challenging terrains, locate food, and find shelter. One plant, in particular, caught the attention of scientists during an ethnobotanical expedition in 1987. The Kani tribe’s intimate understanding of the arogyapacha plant, with its revitalizing effects, not only helped them but also intrigued the visiting research team from the Jawaharlal Nehru Tropical Botanical Garden and Research Institute (JNTBGRI). Upon witnessing the Kani guides’ ability to withstand the terrain without tiring, the research team was introduced to the arogyapacha plant. They discovered that the fruit of this plant had exceptional properties, including anti-stress and immune-stimulating effects, increased stamina, and fatigue relief. With this invaluable find, Dr. Palpu Pushpangadan and his team initiated a comprehensive research project that spanned eight years.

Their research led to the identification of twelve active chemical compounds in arogyapacha that yielded these remarkable effects. The traditional method of consumption involved eating the fruit, but the scientists found that the most effective way to extract these compounds was by crushing the plant’s leaves. Subsequently, they combined these chemicals with three other plants and developed a scientifically verified and standardized herbal formulation named “Jeevani,” signifying “giver of life.” This product is available in granule form, mixed with hot water or milk. Following the development of Jeevani, JNTBGRI undertook extensive research and clinical trials. The trials involved administering Jeevani orally to a hundred human subjects, both healthy and unhealthy, with a focus on assessing their ability to withstand adverse conditions, work quality under stress, athletic performance, mental alertness, and overall productivity. The results were highly favorable, indicating that Jeevani could be more effective and safer than ginseng when used alone or in combination with other ingredients.

However, to make Jeevani a viable commercial product, Dr. Pushpangadan and his team recognized the need for intellectual property (IP) protection. Without it, there would be limited revenue generation, and the Kani people, who had shared their traditional knowledge, would not benefit. Thus, JNTBGRI pursued a patent application for the manufacturing process of Jeevani in India. However, JNTBGRI, as a research institute, lacked the resources to commercialize the product themselves, so they authorized Arya Vaidya Pharmacy Ltd. (AVP) to manufacture and distribute Jeevani. An initial licensing agreement was signed in 1995, with JNTBGRI receiving a licensing fee and a two percent royalty on Jeevani product sales.[2]

One of the key challenges JNTBGRI faced was securing permission for large-scale arogyapacha cultivation, as the land was owned by the Indian Forest Department. To address sustainability concerns, JNTBGRI proposed a cultivation program to the Forest Department and the Integrated Tribal Development Program (ITDP). The Kani people would be paid for the seeds necessary for plant cultivation and subsequently, the harvested leaves would be purchased. This approach proved successful, providing the Kani community with income and training opportunities in cultivation and harvesting. It also established a sustainable source of income for the Kani people and preserved the natural resources of the region.

The relationship between JNTBGRI and the Kani community is founded on a benefit-sharing agreement. A trust was formed to manage the distribution of benefits, with the two Kani individuals who shared their traditional knowledge playing key roles. This trust, known as the Kerala Kani Samudaya Kshema Trust, aimed to promote the welfare and development of the Kani people, document their traditional knowledge, and support the sustainable use and conservation of biological resources. The first payment from the benefit-sharing agreement was disbursed in 1999, offering financial support for community projects and initiatives, including a telephone booth and an insurance scheme for pregnant women and accidental deaths. The success of this benefit-sharing agreement has garnered international recognition. In 2002, JNTBGRI received the United Nations Equator Prize for its work in establishing this agreement, which has been praised by the United Nations Environment Program and the World Trade Organization as a global model for recognizing the traditional knowledge and intellectual property of indigenous communities. This agreement reflects a commitment to respecting traditional knowledge and fostering sustainable development.

Despite its remarkable success in India, Jeevani faced intellectual property challenges outside the country. Due to high costs, JNTBGRI was unable to secure international patent protection for Jeevani. This led to cases of infringement in the United States, where companies attempted to trademark and market products using the Jeevani name. The absence of international IP protection limited JNTBGRI’s ability to contest these cases effectively. Despite these IP challenges, Jeevani has been a commercial triumph for JNTBGRI and AVP, and it is now celebrated as the “ginseng of India.” The benefit-sharing agreement has provided a significant financial boost to the Kani community. The Kani people have received funds that have been utilized for community projects and initiatives. Additionally, the Business Management Committee (BMC) established in 2006 further strengthened the agreement, proposing an increase in licensing fees and royalties for the Kani community.

This remarkable journey demonstrates the profound impact of recognizing traditional knowledge and intellectual property rights on economic and social development. The partnership between JNTBGRI and the Kani people, supported by IP protection and benefit sharing, has enabled sustainable cultivation, preserved traditional knowledge, and provided tangible economic benefits to an indigenous community. It serves as a compelling example of how IP can be harnessed to promote equitable development for traditional knowledge holders and their communities.

Conclusion

In conclusion, the intricate relationship between cultural heritage and intellectual property (IP) protection underscores the critical need to address the challenges posed by globalization and technological advancement. As demonstrated through the exploration of India’s IP framework, particularly in the context of geographical indications (GIs) and traditional knowledge, robust measures are essential to safeguarding cultural expressions and promoting economic prosperity.

The case study of the Kani tribe exemplifies the transformative impact of recognizing traditional knowledge and implementing IP protection mechanisms. Through the development and commercialization of the herbal formulation “Jeevani,” the partnership between JNTBGRI and the Kani community has not only preserved indigenous wisdom but also generated tangible benefits, both economic and social. The benefit-sharing agreement established between the parties serves as a model for equitable development, emphasizing the importance of community involvement and sustainable practices.

However, challenges persist, particularly in securing international IP protection and combating infringement cases. The limitations faced by JNTBGRI in protecting Jeevani outside India highlight the complexities inherent in global IP frameworks and the need for enhanced collaboration and advocacy.

In essence, the case of the Kani tribe underscores the potential of IP protection to empower traditional knowledge holders, foster sustainable development, and preserve cultural heritage for future generations. By embracing inclusive and ethically responsible approaches to IP, nations can harness the power of innovation while honoring and respecting the diverse cultural legacies that enrich our world.

References

[1] Rajendra Kumar, The Protection of Geographical Indications in India & Europe: A Comparative Study, https://www.origin-gi.com/wp-content/uploads/2022/07/Comparative-GI-positions-in-Europe-India-by-Rajendra-Kumar_final.pdf (visited on March 15, 2024)

[2] RV Anuradha, Sharing with the Kanis: A case study from Kerala, India, https://www.cbd.int/financial/bensharing/india-kanis.pdf (Visited on March 17, 2024)

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