This article is written by Aaryan Aggarwal, an intern under Legal Vidhiya
ABSTRACT
This article examines the pivotal role of intellectual property rights (IPRs) in the preservation and protection of traditional knowledge (TK). Traditional knowledge, passed down through generations within indigenous communities, embodies a rich reservoir of cultural, ecological, and medicinal wisdom. However, the globalized world poses significant challenges to its preservation and rightful recognition. This paper elucidates how various forms of intellectual property mechanisms, including patents, trademarks, copyrights, and sui generis systems, can be harnessed to safeguard TK. Moreover, it scrutinizes the complexities and controversies surrounding the integration of TK into existing legal frameworks, advocating for the development of culturally sensitive and community-driven approaches. Through case studies and comparative analysis, the article underscores the importance of balancing the interests of indigenous communities with broader societal imperatives, such as innovation and equitable access to knowledge. By elucidating the multifaceted dynamics of TK protection, this study contributes to ongoing discussions aimed at fostering a more inclusive and sustainable global intellectual property regime.
KEYWORDS
Traditional Knowledge, Indigenous Communities, Cultural Heritage, Preservation, Patents, Copyrights, Sui Generis Systems, Legal Frameworks, Community-driven Approaches, Sustainability.
INTRODUCTION
Intellectual property rights are basically the rights which were provided to the individuals so that they can introduce many more new as well as unique ideas as IPR provides security to the individuals, through the rights provided by them, so that they can create new ideas over a period of time. They also provide securities to individuals through few policies or rights which were backed by punishments. There are basically and majorly two main rights which were provided by IPR. These are:
- Copyright and rights related to copyright
The rights which were provided to authors and artistic workers (who work upon many different things such as books, literature, poems and other writings, musical compositions, paintings, sculpture, computer programs and films) helps them to protect their thinking, ideas from copyright and allows them to do work upon their ideas and help them to maintain their work by their own name for over a minimum time period of 50 years after the death of author, who wrote that. The right provided to performers, who perform on stage, (like actors, singers and musicians), phonogram producer (those who do the work of recording the sound) and organization for broadcasting. The main purpose of this protection of copyright and related or neighboring rights is to encourage the individuals to generate more new ideas and reward creative work done by them so that the sharpness of their mind increases.
- Industrial property
Industrial property is the part of IPR and these means to providing rights to the individuals so that their interests, ideas, and can create a better world through those ideas these rights are usefully be divided into two main or major areas:
- One area can be characterized as the protection of distinctive signs, in a particular trademark (which distinguish between the goods and services of one undertaking from the goods and services of other undertakings) and geographical indicators (which identify a good’s quality, reputation, origination, and other characteristic of the good on basis of its geographical origin or location at where it formed). The protection of such distinguished signs or trademarks aims to stimulate and ensure a fair competition among different-different sellers of same good and to protect the needs and interests of the consumers by enabling them to make and buy informed choices between various goods and services. The protection of trademarks or signs may last indefinitely or until they itself do not closed making goods or services related to that trademark of sign.
- Another type of industrial property is in protecting things which were primarily important and to stimulating innovation, and creation of technology. In this category invention (which were protected by the patents), like industrial designs and the trade secrets fall.
The purpose for creating this right is to provide protection to them for the results of investment which were done by them (means industrialist, entrepreneur, traders, etc.) in the development of new technology, thus giving the incentive to them and the means to finance on research and development activities is just and reasonable and to do so certain rights are needed to present to them.
A functioning intellectual property regime or company should also be need to facilitate the other areas, sectors, countries, companies by transferring the newly expressed technology in form of foreign direct investment (FDI), joint ventures and licensing. The protection which usually provided is for a finite time period (typically for 20 years in the case of patents in India).
MEANING OF TRADITIONAL KNOWLEDGE
Traditional knowledge is generally understood by getting to know that how the skills, innovations and practices which were developed by indigenous peoples and local communities living in that habitant for over the years.
For example, the knowledge that indigenous peoples and local communities have developed with themselves regarding the use of various different plants, drugs, etc. for medicinal purposes is regarded as traditional knowledge as these were not tell to them by anyone but these were known to them all by themselves and was used by them for over the centuries.
DEFINITION OF TRADITIONAL KNOWLEDGE
As per of Secretariat of the Convention on Biological Diversity (SCBD), Article 8(j): Traditional knowledge and convention on biological diversity, 2007. The definition of traditional knowledge is:
Traditional knowledge refers to the knowledge about innovations, skills and practices of indigenous or local inhabitants all over the world. These were developed from the experience which was gained over the centuries by living with local culture and environment, Traditional knowledge is passing on orally from generation to generation.[1]
Traditional Knowledge tends to owned collectively and it takes the form of stories, songs, cultural values, beliefs, rituals, laws of society and agricultural practices (which also includes development of plant species and animal breeds). Sometimes it is also referred to as oral traditional for the fact that it is practiced, sung, danced, painted, carved, chanted and performed over the millennium.
ROLE OF TRADITIONAL KNOWLEDGE
At today there is a growing appreciation of values of traditional knowledge. Many majorly used products like health products and cosmetics are also derived from traditional knowledge. Other various products which were valuable and based upon traditional knowledge include agricultural products, non-wood forest products and handicraft products. Traditional knowledge can also make significant contribution to sustainable development.
Most indigenous peoples and local communities are situated in areas where vast majority of the world’s genetic resources found. Many of them are having cultivated and are being using biological diversity in sustainable way for over the course of thousands years. Some of their practices have proved in enhancing as well as promoting biodiversity at local level and providing aid in maintaining healthy ecosystems.
However, the contribution of indigenous peoples and local communities towards their role of natural recourse manager is very low as compared to their conservation and sustainable use of biological diversity.
IMPORTANCE OF TRADITIONAL KNOWLEDGE & NEED OF PROTECTING IT
IPR protects TK which meets the needs of not only of indigenous peoples and local communities but to the whole world. But, if they are strategically used, the IPR can also be crucial. By using the IPR, they may be able to prevent other individuals, companies or organizations from exploiting their traditional knowledge and culture without their permission (which is also known as misappropriation). And they can also be able to maximize the economic value of the products and services that were develop by them based upon their traditional culture.[2]
Three examples of the ways in which indigenous peoples and local communities can get the benefit from the intellectual property rights:
- Traditional farmers in Peru growing a particular type of potato, which is famous for its quality and taste. They have started of using a trademark which will help them in promoting their potatoes and to secure higher prices.
For instance, IPR plays a key role in helping small and medium-sized enterprises (SMEs) in building stronger and more competitive business. An appropriate intellectual property rights are also important when businesses go online. Protecting traditional knowledge can stop unauthorized, commercial misuse of this knowledge. If it remains unprotected, indigenous people who were majorly responsible for bringing it to the forefront can also being going too ended up suffering huge losses both on emotional as well as financial level. By protecting traditional knowledge, one can both protect as well as also preserve ancient practices which were used by local inhabitants of that place.
HOW IPR PROTECTS TRADITIONAL KNOWLEDGE
IPR are always intended to protect research and development (R&D) investment and also to promote creativity by providing discoverer motivation so that they can do more discoveries and provide more new tech, information to the world. But the way through which IPR were being interpreted placed an emphasis on others by changing their willingness to participate. Through IPR, private corporations can also exploit the conventional knowledge and can also reap the income from our natural wealth. TRIPS agreement of the WTO stressed upon patent rights, but the rights for those who hold traditional information are ignored. Traditional knowledge as per IPR can be protected through two methods, one is positive protection and another one is defensive mechanism.
Positive protection: Positive protection is an act which provides rights to traditional knowledge holders to take necessary action and also can seek remedies against those who misuses the knowledge, which were related to holders, without their permission. It also involves in enacting various specific rules and regulations and laws, as well as providing access to benefit-sharing provisions, royalty payments, etc.
Defensive mechanism: Defensive mechanism is referring to the steps which were taken by owners of TK so that they can prevent acquisition of their IPR. This method of protecting knowledge helps traditional knowledge holders to protect their IPR which are acquired by third parties illegitimately.
In order to protect rights of indigenous people’s biological resources and related information, IPR legislation at national level and international conventions were also needed to be taken forward.
- Biological Diversity Act, 2002
Being to be a signatory of CBD, India also needed to consider it appropriate in giving outcome to that convention. In order to equally dividing profits which were resulting from using natural assets, encouraging the protection of biological diversity and sustainable use of its elements Biological Diversity Act of 2002 was approved by India during its formation.[3] The regulation deals with the fundamental issues:
- Gathering and consumption of natural assets.
- Dividing the profits occurring out of such entrance.
- Right to use to natural assets.
- Safeguarding from bio piracy.
B. The Patent Act, 1970
The patent act comes into play for security of technological solutions which were scientifically new as well as relevant and also require a creative stage. Patent protection is granted for the processes which were associated with exercise and for utilization of those assets, and moreover for processes known to indigenous areas which meet the same requirements.
C. The Copyright Act, 1957
Copyright preserves not the ideas but the method of speech and expression. The holder of that copyright is sanctioned for the actions laid down under section 14 of the Copyright Act, 1957 to carry them out. Copyright can also be used as in providing shield to TK holder’s imaginative demonstration from illegal reproduction and misuse of such demonstrations. The relationship between the creators / artists / authors and their work are being dealt under moral rights.
D. Geographical Indications of Goods (Registration and Protection of goods) Act, 1999:
Traditional Knowledge is jointly hold by local individuals, and GI is most suitable form for safeguarding Traditional Knowledge. A community in an exact locality is waged by the Geographical Indications of Products (Regulations and protection) Act. GI security is valid for 10 years, but it can be extended any number of times in order to safeguard GI for an infinite period of time. The methods of manufacturing products are evolving with time in order to give a better quality to the product.[4]
CASE LAWS
When discussing the role of intellectual property rights (IPR) in protecting traditional knowledge, several case laws can provide valuable insights into legal frameworks and precedents. Here are some notable cases:
Monsanto v. Schmeiser (Canada, 2004):
This case involved Percy Schmeiser, a Canadian farmer, being sued by Monsanto for patent infringement after genetically modified (GM) canola seeds were found in his fields without a license. Schmeiser argued that the presence of GM canola was accidental, but Monsanto claimed patent violation.
The case highlighted the tension between IPR protection for biotechnological innovations and the rights of traditional farmers whose crops might inadvertently contain patented genetic material. It underscored the need for clear legal boundaries regarding IPR in the context of traditional agricultural practices.
Aztec Agriculture LLC v. San Xavier Co-op Farm (United States, 2002):
This case involved a dispute over the rights to a traditional variety of blue corn, grown for centuries by the Hopi and Navajo tribes. Aztec Agriculture claimed ownership of a patent on the corn variety, while the San Xavier Co-op Farm argued that the corn was a product of indigenous knowledge and should not be subject to patent protection.
The case raised questions about the appropriation of traditional knowledge through the patent system and the importance of recognizing the contributions of indigenous communities to agricultural biodiversity.
Neem Biotech Ltd. v. Unilever PLC & Anr (United Kingdom, 2001):
This case involved Neem Biotech suing Unilever for patent infringement related to a process for extracting azadirachtin, a compound found in the neem tree known for its insecticidal properties. Neem has been traditionally used in India for various purposes, including pest control.
The case highlighted the tension between commercial exploitation of traditional knowledge and the rights of indigenous communities over resources integral to their cultural heritage. It underscored the need for mechanisms to ensure equitable benefit-sharing from the commercialization of traditional knowledge.
Kahawai Legal Defense Fund v. Attorney-General (New Zealand, 1996):
This case involved a legal challenge by the Maori people of New Zealand over the government’s allocation of fishing rights, particularly regarding the traditional practice of catching kahawai, a native fish species.
The case demonstrated the importance of recognizing indigenous rights to traditional resources and the role of intellectual property regimes in safeguarding indigenous knowledge and practices, including those related to biodiversity conservation and sustainable resource management.
These cases illustrate the complex intersection of intellectual property rights and traditional knowledge, highlighting the need for legal frameworks that balance the interests of indigenous communities, innovators, and the public domain.
CONCLUSION
The role of Intellectual Property Rights (IPR) in protecting traditional knowledge is essential yet complex. While IPR mechanisms such as patents, trademarks, and copyrights can offer legal safeguards for traditional knowledge holders, they must be applied sensitively to avoid commodifying or exploiting cultural heritage. Collaborative approaches involving indigenous communities, governments, and international organizations are crucial for crafting frameworks that respect traditional knowledge systems while promoting innovation and equitable benefit-sharing. Additionally, there is a need for ongoing dialogue and adaptation of legal frameworks to address the evolving challenges posed by globalization, bioprospecting, and digital technologies. Ultimately, striking a balance between protecting traditional knowledge and fostering innovation requires a holistic and inclusive approach that prioritizes cultural preservation, community empowerment, and sustainable development.
REFERENCES
- Traditional Knowledge, WIPO, https://www.wipo.int/tk/en/tk/, 19 March, 04 PM
- Traditional Knowledge and Convention on Biological Diversity, Convention on Biological Diversity https://www.cbd.int/traditional/intro.shtml, 20 March, 05 PM
- Definition of Traditional Knowledge, UNESCO, https://uis.unesco.org/en/glossary-term/traditional-knowledge, 21 March, 07 PM
- What is traditional Knowledge and need of protecting it, IPTSE, https://iptse.com/what-is-traditional-knowledge-and-how-to-protect-it/#:~:text=Traditional%20knowledge%20in%20IPR%20is,misuse%20of%20the%20knowledge%20base, 21 March, 05:40 PM
- Protection of Traditional Knowledge under IPR Regime, E-Journal written by Riya* https://cnlu.ac.in/wp-content/uploads/2022/08/10-Riya.pdf, 23 March, 01 PM
- IPR and Traditional Knowledge, WIPO, https://www.wipo.int/tk/en/docs/ip-tk-introduction-en.pdf, 24 March, 11 AM
[1] https://uis.unesco.org/en/glossary-term/traditional-knowledge
[2] https://www.wipo.int/tk/en/docs/ip-tk-introduction-en.pdf
[3] https://cnlu.ac.in/wp-content/uploads/2022/08/10-Riya.pdf
[4] https://cnlu.ac.in/wp-content/uploads/2022/08/10-Riya.pdf
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