INTELLECTUAL PROPERTY RIGHTS AND TRADITIONAL KNOWLEDGE

This article is written by Yogitha Krishna of BBA.LLB of 5^th Year of Gitam School of Law, an intern under Legal Vidhiya

ABSTRACT

This article explores the complex intersection of Intellectual Property Rights (IPR) and Traditional Knowledge (TK), focusing on the challenges and opportunities presented by their coexistence. Traditional knowledge, often held collectively by indigenous and local communities, encompasses a wealth of insights into biodiversity, medicine, and sustainable practices. However, its integration into the IPR framework poses significant dilemmas, including issues of ownership, appropriation, and benefit-sharing. Through a comprehensive review of international legal frameworks and case studies, this article examines current efforts to balance the protection of traditional knowledge with the promotion of innovation and cultural heritage. Key topics include the role of patents, copyrights, and sui generis systems in safeguarding TK, as well as emerging trends in global governance and community empowerment. By analyzing these dynamics, the article seeks to provide insights into forging a more equitable and inclusive approach to managing intellectual property in a diverse and interconnected world.

Keywords

Intellectual Property Rights (IPR), Traditional Knowledge (TK), biodiversity, Indigenous communities, TRIPS, WIPO, Sui generis

INTRODUCTION

IPR and traditional knowledge are not words we frequently hear used together. Although traditional knowledge is something we all possess and often take for granted, we should recognize its significance. IPR stands for intellectual property rights. Recall those delectable family recipes that your grandmother said she inherited from her grandmother? Yes, all of them represent traditional wisdom—the kind of knowledge you have internalized via your oral heritage and will impart to future generations.

Traditional knowledge is knowledge that is owned collectively by a community and can take many different forms, including songs, stories, proverbs, folklore, beliefs, rituals, regional languages, laws, and so forth.[1]

In modern times, having labour, wealth, and land is just not enough for a nation to prosper. Innovation and creativity are the new forces propelling the global economy. The idea that its subject matter is the result of the mind or intellect is reflected in the term Intellectual Property (IP). The purpose of intellectual property rights (IPRs) is to protect and reward authors, without which others could freely exploit their creative output. The expectation in society is that artists would place their creations on the market so that they can be purchased and sold. However, despite the fact that society values inventiveness, it opposes the development of damaging market power.[2]

And for that reason, the rights that the state grants to the creator are constrained in both space and time.

TRADITIONAL KNOWLEDGE

Indigenous and local communities have been using traditional knowledge (TK) in accordance with local laws, norms, and traditions for generations. It has been passed down and changed through the generations. Traditional Knowledge has contributed to and continues to play a significant role in crucial fields like food security, agricultural development, and medical care. Nonetheless, Western cultures have generally failed to acknowledge the substantial worth of Traditional Knowledge or the responsibility entailed in its use, and have instead approved of, or hastened its extinction by destroying the way of life and cultural norms within the communities.[3]

Western science has recently developed a greater interest in traditional knowledge (TK) as they have realized that Traditional Knowledge, when combined with “modern” scientific and technological understanding, might potentially provide valuable solutions to contemporary issues. Though acknowledging Traditional Knowledge as a vital source of knowledge, its classification under Western intellectual property rules has largely been as “public domain” information, meaning anybody can use it for free. Furthermore, under IPRs, certain forms of traditional knowledge have occasionally been hijacked by academics and private businesses without giving credit to the original authors or holders of the knowledge.

OBJECTIVES OF THE PAPER

This paper aims to delve deeply into the multifaceted issues surrounding TK and IPR, offering a comprehensive analysis of:

• The legal and policy frameworks governing TK protection at national and international levels.
• Case studies illustrating instances of misappropriation and successful protection efforts.
• Ethical considerations in the use and commercialization of TK, including the principles of free, prior, and informed consent (FPIC) and equitable benefit-sharing.
• Collaborative strategies and best practices for integrating TK into sustainable development initiatives while respecting indigenous rights and cultural protocols.

UNDERSTANDING TRADITIONAL KNOWLEDGE IN IPR 

According to Convention on Biological Diversity Article 8(j), traditional knowledge encompasses the understanding, creations, and customs of indigenous and local cultures around the globe. Oral transmission of traditional knowledge from generation to generation occurs. This knowledge is derived from experience accumulated over ages and customized to the local environment and culture. Stories, music, folklore, proverbs, cultural values, beliefs, customs, community norms, the local language, and agricultural techniques, such as the development of plant species and animal breeds, are examples of how it tends to belong collectively. Because it has been taught, sung, danced, drawn, sculpted, sung, and performed for thousands of years, it is frequently referred to as an oral tradition.

Most traditional knowledge is applied in practical contexts, especially in areas like gardening, forestry, safety, fisheries, agriculture, and general environmental management.

The knowledge, abilities, customs, and know-how that are created, maintained, and transmitted from generation to generation within a community—often serving as a component of its cultural or spiritual identity—are referred to as traditional knowledge by the World Intellectual Property Organization (WIPO).

While an internationally recognized definition of Traditional Knowledge has not yet been established, the following can be said about it: in the narrow sense, Traditional Knowledge refers to knowledge as such, in particular, the knowledge arising from conventional intellectual activity, which involves know-how, habits, skills, and inventions; in the broad sense, Traditional Knowledge accepts the substance of information itself as well as common cultural expressions, including distinctive Traditional Knowledge-related signs and symbols. The fact that Traditional Knowledge is primarily oral and has an ancient origin is its most significant component. But knowledge is not considered traditional because it is ancient; rather, it is considered traditional because it has been produced, maintained, and shared within a traditional culture. It is also passed down through the generations, frequently via special, customary knowledge transmission methods. Therefore, what makes it traditional is the interaction between the community and knowledge. TK is dynamic, adaptive, context-specific, and culture-specific.

WHY SHOULD TRADITIONAL KNOWLEDGE BE PROTECTED

Traditional knowledge holds proof und significance for communities, forming the bedrock of their cultural identity and livelihoods. Protecting traditional knowledge in Indian patent laws not only safeguards it from exploitation but also ensures its preservation as a valuable repository of wisdom.[4]

Many traditional knowledge systems are transmitted orally, complicating efforts to trace their origins and making them vulnerable to misuse. This vulnerability exposes these knowledge systems to exploitation, especially in commercial contexts.

A crucial rationale for safeguarding traditional knowledge is to prevent its unauthorized commercialization. Biopiracy is a pressing issue for indigenous communities and local populations whose centuries-old practices, such as the use of natural ingredients for medicinal purposes in systems like Ayurveda and Unani, are being exploited by large industries without acknowledgment or fair compensation.

In essence, protecting traditional knowledge is essential not only to respect the cultural heritage and intellectual contributions of these communities but also to ensure that they can continue to benefit equitably from their own wisdom and practice

PATENTS AND TRADITIONAL KNOWLEDGE

Section 3(p) of the Indian Patent Act of 1970[5] prohibits the protection of traditional knowledge under Indian patent laws. An amalgamation or duplication of known properties of traditionally known components, or an innovation that is effectively traditional knowledge, is not an invention and is not subject to patent protection. For instance, the method of preparing an improved Chyawanprash described in the patent application comprises chopping, roasting, and combining dry fruits with the Chyawanprash; nevertheless, this procedure does not qualify as an invention under Section 3(p) of the Patents Act 1970 (as amended in 2005). Since this invention relies on traditional knowledge, it cannot be patented under the Act.

IP protection may be sought, nonetheless, provided there is a substantial alteration to the existing TK that permits the innovation to meet the requirements of Indian IP legislation.

Indian law provides adequate protections to preserve traditional knowledge. Conventional knowledge is public knowledge by definition, so any application for a patent pertaining to TK does not meet the definition of an invention under Section 2(1)(j) of the Patents Act, 1970, which states that an invention is “a new product or method requiring an innovative phase and capable of industrial use.”[6]

Furthermore, “a substance obtained through a mere admixture which results only in the aggregation of the properties of the components thereof or process for producing such substances” is not an innovation and is therefore not patentable, according to Section 3(e) of the Patents Act.

Patents granted may be revoked in opposition under clauses (d), (f), and (k) of section 25(2) of the Patents Act, 1970. Patent applications based on TK that violate the law may be denied under Section 15 or in pre-grant opposition under clauses (d), (f), and (k) of Section 25(1).

The innovation in dispute has its origins in the Patent Act of 1970, which contains provisions requiring TK to be disclosed.

The Act’s Section 10(4)(ii)(D) mandates that the source and geographical origin of any biological material employed in the invention must be disclosed in the specification.

The patent strategy may provide security for certain aspects of TK. A patent application may be used to secure novel and inventive solutions for technical problems identified in the prior art globally. For example, patents may protect the trademark because it deals with modern subjects. Procedures used in the production of goods separated from biological resources like microbes, plants, and animals can be protected by patents. The codified TM does not meet the novelty requirements to be covered under patents.

COPYRIGHTS AND TRADITIONAL KNOWLEDGE

Copyright may be utilized to protect the artistic works of TK holders—that is, artists who are members of migrant and indigenous populations—from exploitation and unlawful development. This can include written works such as myths, stories, and poetry; theoretical works; artistic works; textile works like clothing, tapestries, and carpets; musical works; three-dimensional works like ceramics, paintings, wood and stone carvings, and various objects; and textile works like fabrics, clothes, and textile compositions. The involvement of singers and dancers, as well as theater productions, puppet shows, and other similar activities, may be guaranteed through the use of public rights. Furthermore, the performances by the indigenous and local communities are acknowledged as common knowledge by the WIPO.

Performance is protected by copyright law through the artist’s adjacent rights or privileges. Therefore, in general, performing arts that are part of traditional, indigenous, and local cultures can be covered by copyright, more precisely performer rights.

The expression form—rather than the ideas themselves—is protected by copyright. Any action permitted by Section 14 of the 1957 Copyright Act may be taken by copyright holders. Copyright can be used to protect the creative works of TK holders from misuse and unauthorized copying, especially for artists from migrant and indigenous cultures. The link between creators, artists, and authors and their work is the subject of moral rights. These rights could be a crucial means of safeguarding the rights of Indigenous peoples to works created by Indigenous knowledge

Additionally, Section 31A of the 1957 Copyright Act addresses the requirement for a license in the case of unpublished Indian works. According to this clause, anybody can apply to the Copyright Board for a license to publish a job or a translation of it in any language if the work’s author is deceased, unknown, or cannot be located or if the copyright owner cannot be located. Before submitting an application, the candidate must publish his proposal in one English-language daily newspaper that is widely read nationwide. If the application is for the publication of a translation into another language, it must also be published in one of those daily newspapers so that if the original author of the work exists, he can claim his ownership.

TRADEMARKS AND TRADITIONAL KNOWLEDGE

The two guiding principles of trademarks are distinguishability and avoidance of confusion. To be distinctive, a mark must not be identical to any other word, phrase, symbol, or design associated with an identical good. Customers must buy these products in order to ensure certainty regarding the origin of a medicine. Marks distinguish products to prevent misleading consumers into thinking that they are something they are not or that they come from a specific source.[7]

Even biological and agricultural goods can be protected against indigenous goods under the Trademark Act 1999.

The use of trademarks and service marks allows all types of goods produced and provided by native and indigenous communities’ producers, practitioners, artisans, and traders, as well as the organizations that represent them or under which they are organized (cooperatives, guilds, etc.), to be distinguished from similar goods and services provided by other parties. It is possible to protect artisanal and cultural goods with collective markings. From traditional art and artwork to food, clothing, and tourism services, certification marks can differentiate a wide range of goods and services. To define their brand and ensure the distinctive quality of their products, indigenous organizations have the option to register their trademarks and use this sign in their marketing campaigns.

Therefore, while the trademark scheme can protect the reputation of conventional knowledge, the content of that knowledge will not be protected. Defensive protection against deceptive practices involving the passing off of counterfeit goods and services shall be guaranteed.

This kind of trademark use can prove product faithfulness and guard against reputational damage brought on by using conventional knowledge designation for products that are derivatives. Particularly in the case of pharmaceutical patents, it is strikingly analogous to the use of trademarks to maintain product faithfulness even after patents expire.

TRADITIONAL KNOWLEDGE AND INTERNATIONAL IPR CONVENTIONS[8]

Most countries’ intellectual property laws acknowledge the concept of traditional knowledge. To effectively enforce IPR rights, a global, coordinated, and cooperative approach is required. Thus, it is critical to examine how global conventions attempt to conserve traditional knowledge. Most major international conventions do not provide IPR protection for TK.

WIPO

The World Intellectual Property Organization (1967) was established to promote worldwide cooperation in the protection of intellectual property (IP) rights. It is one of the United Nations’ fifteen specialized agencies. It promotes global intellectual property rules and regulations and offers technical help to IP offices around the world.

Convention on Biodiversity

The 1992 Convention on Biodiversity strives to protect biological resources while also sharing the benefits of genetic variation. The Convention also notes that genetic information is frequently misused for commercial interests, which can be avoided by establishing a robust IPR system.

TRIPS Agreement

The 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) is one of the most comprehensive international agreements in history. This legally binding document establishes minimal requirements to which member states’ domestic intellectual property laws must adhere. According to its preamble, the principal goal is to encourage efficient enforcement of intellectual property rights.

The TRIPS agreement requires member governments to give patent protection for inventions that are new, entail an innovative step, and can be used in any industrial application. However, TK does not meet the criteria for being ‘new’ or having an ‘inventive step’. In other circumstances, it may not have any industrial applications.

Thus, we can conclude that, in terms of the international IPR framework, traditional knowledge and indigenous people’s contributions are not regarded deserving of IPR protection, whereas scientific breakthroughs are considered appropriate subjects for IPR safeguards.

LANDMARK JUDGMENTS SURROUNDING TRADITIONAL KNOWLEDGE IN IPR[9]

Patent for Turmeric’s Healing Properties[10]

Two Indian American scientists at the University of Mississippi Medical Center, Suman K. Das and Hari Har P. Cohly, filed for a patent on the therapeutic qualities of turmeric. While the plant’s therapeutic qualities have long been known in India, they were asserting that they had found them. The US Trade and Patents Office granted them patent rights in March 1995, in a ridiculous turn of events. Ultimately, the patent was withdrawn and the CSIR was forced to file for a re-examination.

A Patent for the Fungicide Use of Neem Oil

Neem oil has long been used by Indian farmers as a natural fungicide and insecticide. Nonetheless, W.R. Grace and the US Department of Agriculture submitted a patent application to the European Patent Office for a pesticide produced from neem oil. For it, a grace patent was issued.[11]
As per the United States Code, any modification made to a natural product is eligible for a grace patent. A grace patent cannot be revoked by foreign knowledge unless it is disclosed.

The Research Foundation for Science, Technology and Ecology (RFSTE) of New Delhi, working with the International Federation of Organic Agriculture Movements (IFOAM) and former green Member of the European Parliament (MEP) Magda Aelvoet, did not receive approval for their legal representation.

Indian agriculturalists and experts led by Dr. Shiva raised a lot of a fuss over this. The patent was withdrawn in response to the unceasing objections, and the appeal against the revocation was denied.

The Basmathi Rice Patent

The US Patent and Trade Office granted an American company, Rice Tec, a patent for fifteen types of aromatic Basmathi rice. India fought this in a three-year court case. In the end, the patent was cancelled.[12]

TRADITIONAL KNOWLEDGE DIGITAL LIBRARY

These instances were eye-opening, prompting the Government of India to establish the Traditional Knowledge Digital Library (TKDL) and integrate traditional knowledge in the International Patent Clarification System. India’s TKDL effort aims to digitize and document knowledge existing in the public domain in order to allow systematic information arrangement, dissemination, and retrieval.[13] While granting patents, authorities compare the invention to prior art in the public domain. Documenting knowledge will allow them to trace inventions in the public domain and determine whether they are patentable, preventing theft of traditional knowledge.

CONCLUSION

In conclusion, the intersection of traditional knowledge (TK) and intellectual property rights (IPR) presents complex challenges and opportunities at both national and international levels. Traditional knowledge, rooted in community heritage and oral traditions, encompasses a wealth of wisdom crucial for sustainable development in areas such as agriculture, medicine, and environmental management. However, despite its significance, TK faces threats of misappropriation and exploitation, particularly in contexts where legal frameworks inadequately protect indigenous rights and equitable benefit-sharing. Taking the required precautions to safeguard traditional knowledge is the only way to ensure its continued safety. The preservation of traditional knowledge for communities of indigenous people living in developing and underdeveloped nations is critical. Protecting and preserving traditional knowledge has become even more important as globalization and international cooperation and coordination become prevalent. Intellectual property rights provide hope for the preservation of traditional knowledge.

REFERENCES

1. Kalra, M. (2023) What is traditional knowledge and how to protect it?, IPTSE. Available at: https://iptse.com/what-is-traditional-knowledge-and-how-to-protect-it/ (Accessed: 08 July 2024).
2. Garg, R. (2024) Traditional knowledge in IPR, Ipleaders. Available at: https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/ (Accessed: 08 July 2024).
3. Srinivas, Krishna Ravi (no date) (PDF) traditional knowledge and intellectual property rights: A note on issues, some solutions and some suggestions, research gate. Available at: https://www.researchgate.net/publication/228123573_Traditional_Knowledge_and_Intellectual_Property_Rights_A_Note_on_Issues_Some_Solutions_and_Some_Suggestions (Accessed: 08 July 2024).
4. Indulia, B., Ridhi and Herrera, S. (2020a) Intellectual property rights and protection of traditional knowledge: A general Indian perspective , SCC Times. Available at: https://www.scconline.com/blog/post/2020/06/22/intellectual-property-rights-and-protection-of-traditional-knowledge-a-general-indian-perspective/ (Accessed: 08 July 2024).
5. Section 3(p), Patents Act, 1970
6. Garg, R. (2024) Traditional knowledge in IPR, Ipleaders. Available at: https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/ (Accessed: 08 July 2024).
7. Garg, R. (2024) Traditional knowledge in IPR, Ipleaders. Available at: https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/ (Accessed: 08 July 2024).
8. Mugabe, Dr John (no date) Intellectual property protection and traditional knowledge – WIPO, https://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_4.pdf. Available at: https://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_4.pdf (Accessed: 08 July 2024).
9. Simran Kaur Khalsa Patent Attorney LinkedIn, Khalsa, S.K. and Attorney, P. (2024) Protecting traditional knowledge and intellectual property, De Penning and De Penning. Available at: https://depenning.com/blog/ip-and-indigenous-communities-protecting-traditional-knowledge-and-cultural-heritage/ (Accessed: 08 July 2024).
10. Indulia, B., Ridhi and Herrera, S. (2020b) Intellectual property rights and protection of traditional knowledge: A general Indian perspective , SCC Times. Available at: https://www.scconline.com/blog/post/2020/06/22/intellectual-property-rights-and-protection-of-traditional-knowledge-a-general-indian-perspective/ (Accessed: 08 July 2024).

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[1] Kalra, M. (2023) What is traditional knowledge and how to protect it?, IPTSE. Available at: https://iptse.com/what-is traditional-knowledge-and-how-to-protect-it/ (Accessed: 08 July 2024).

[2] Garg, R. (2024) Traditional knowledge in IPR, Ipleaders. Available at: https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/ (Accessed: 08 July 2024).

[3] Srinivas, Krishna Ravi (no date) (PDF) traditional knowledge and intellectual property rights: A note on issues, some solutions and some suggestions, research gate. Available at: https://www.researchgate.net/publication/228123573_Traditional_Knowledge_and_Intellectual_Property_Rights_A_Note_on_Issues_Some_Solutions_and_Some_Suggestions (Accessed: 08 July 2024).

[4] Indulia, B., Ridhi and Herrera, S. (2020a) Intellectual property rights and protection of traditional knowledge: A general Indian perspective , SCC Times. Available at: https://www.scconline.com/blog/post/2020/06/22/intellectual-property-rights-and-protection-of-traditional-knowledge-a-general-indian-perspective/ (Accessed: 08 July 2024).

[5] Section 3(p), Patents Act, 1970

[6] Garg, R. (2024) Traditional knowledge in IPR, Ipleaders. Available at: https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/ (Accessed: 08 July 2024).

[7] Garg, R. (2024) Traditional knowledge in IPR, Ipleaders. Available at: https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/ (Accessed: 08 July 2024).

[8] Mugabe, Dr John (no date) Intellectual property protection and traditional knowledge – WIPO, https://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_4.pdf. Available at: https://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_4.pdf (Accessed: 08 July 2024).

[9] Simran Kaur Khalsa Patent Attorney LinkedIn, Khalsa, S.K. and Attorney, P. (2024) Protecting traditional knowledge and intellectual property, De Penning and De Penning. Available at: https://depenning.com/blog/ip-and-indigenous-communities-protecting-traditional-knowledge-and-cultural-heritage/ (Accessed: 08 July 2024).

[10] Indian Council for Scientific and Industrial Research v. University of Mississippi Medical Centre (1997)

[11] WR Grace & co v. India (1997)

[12] Rice tec v. India (1997)

[13] Indulia, B., Ridhi and Herrera, S. (2020b) Intellectual property rights and protection of traditional knowledge: A general Indian perspective, SCC Times. Available at: https://www.scconline.com/blog/post/2020/06/22/intellectual-property-rights-and-protection-of-traditional-knowledge-a-general-indian-perspective/ (Accessed: 08 July 2024).

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