Traditional knowledge and intellectual property issues

The article explores the relationship between Traditional Knowledge (TK) and their expressions with Intellectual Property (IP) and how TK can be fitted into the regime of IP for protection from misappropriation or bio-piracy by outsiders.

Traditional knowledge and traditional cultural expressions

The diversity of India is such that it would not be wrong to say that we are a vibrant salad bowl, an analogy to our diversity produced by the thousands of unique communities that live in this soil and their equally unique traditional cultural expressions; that may comprise of their music, dance, art, ceremonies, handicrafts, beliefs etc. TCEs are expressions of the identity of the communities concerned and reflect their heritage that have been passed on for generations and preserved since ages. They consist of core values that form an integral part of the identity of indigenous and local communities. For instance, the Magh Bihu festival of harvest in Assam is unique to the Assamese community, or the Onam celebrations down South, Lohri in North India, etc. These expressions are to be found in the food we eat to the clothes we wear, the dance we perform, the songs we sing or even the art we engage in, that may include unique styles of embroidering or carpeting or our folklore.

Relation between traditional knowledge and traditional cultural expressions and intellectual property

Intellectual Property or IP can be defined as the rights that are vested upon individuals for the creations of their mind that involve intellect and skill which are of course intangible in nature and can include a literary work like poem, novel over which copyright subsists, or the trademark (a mark used by an enterprise in respect of their goods or services that distinguishes the identity of one undertaking in the market from the other), patent rights for inventions that are novel (have not been envisioned before), are useful and capable of being used in industries, trade secrets like the formula of Kentucky Fried Chicken or the Coca Cola recipe.

This cultural heritage can be considered as "living" as they have been nurtured by generations and are being constantly modified by artisans and is thus a blend of collective identity and individual creativity. For instance, a folk song can be recreated with sufficiently new elements in order to render it "original" for copyright to subsist in that. It is to be noted that for these expressions to be protected, it is not required that they should be reduced to a tangible form. They can however be tangible too, like works of pottery, paintings, sculptures, weaving, woodwork, carpets, forms of architecture, etc or can be mixture of both. For instance, a rug may be the tangible form of some form of artistry known to a particular community and may also have a folklore hidden in it in the symbols used to represent the same.
Now, TCEs are considered to be a sub-set of traditional knowledge (TK), which falls under the domain of IPR. TK, on the other hand is wider and includes the whole base of knowledge that these communities have which are generally oral.

Misappropriation (Biopiracy)

Unlike other forms of IP, TK and TCE belong to a community and should any IPR be given over such TK or TCEs, a very unique form of protection had to be envisaged; the reason for the protection being the act of misappropriation by outsiders. The local/indigenous communities have their own TK that are even though in the public domain but since they originate from these specific communities and are a part of their identity therefore should any entity benefit from their utilization, it should be the community that knows or have knowledge about the same. The rationale is that since they have been carrying out such practices for ages, if any benefit arises by exploiting them commercially, the benefits must be rightfully shared with them. The cases of Neem and Turmeric highlight this aspect when outsiders came to India, acquired information about the healing properties of turmeric and medicinal properties of neem and developed products in their countries and even got patents for them. It was when The Indian Council for Scientific and Industrial Research (CSIR) objected to the grant of the patent on turmeric on the basis of prior art (i.e. the knowledge for the invention was already in existence) and provided documented evidences of the same to the United States Patent and Trademark Office (USPTO) and to the European Patent Office in case of neem and they thereafter revoked the patent.

Since, they could not be protected under the traditional regimes of IP; a sui generis method is the solution to protect them under IP. First of all, they are a part of IP and unlike IP like patents or trademarks or copyright, do not really belong to a specific individual or have any distinct owner but belongs to the community.

The World Intellectual Property Organization (WIPO) is an agency of the United Nations that promotes innovation and creativity by ensuring a balanced and effective IP system in the whole world. In 2008, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) gave importance to this issue of TK and TCEs and their misappropriation. The relevant stakeholders in this issue are the indigenous and local communities, non-governmental organizations (NGOs), representatives of the government, academics, researchers and private sector representatives were among the more than 3000 persons consulted on these missions undertaken by WIPO to examine issues of TK, TCEs and their relation with IP.

The traditional knowledge digital library (TKDL)

In response to this, the documentation of traditional knowledge gained prominence. The Indian Government introduced the Traditional Knowledge Digital Library (TKDL) in the year 2001 which is basically a repository of the TK mainly with respect to medicinal plants and their unconventional uses and was an outcome of the collaboration between CSIR and Ministry of AYUSH to curb the menace of biopiracy.
TKDL has played a significant role in providing a defensive form of protection. The Convention on Biodiversity (CBD) is of relevance in this juncture because the CBD has the following objectives the conservation of biological diversity, the sustainable use of its components; and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate. The third objective is of deep relevance here. To ensure access and benefit sharing, these entities who utilize the TK of indigenous communities, must do so after obtaining their prior "informed consent" and should the former accrue any benefit, they must share them with these communities on a fair and equitable basis.


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