Traditional Knowledge and IPR
This Article is written by Miss Divyakshi Jain, Semester X, B.B.A. LL.B. (IPR Hons.) at National Law University Jodhpur. In this article, she has explained that why Traditional Knowledge should be protected under IPR.
The international regime for the protection of intellectual property was drafted during Western industrialization and thus developed in line with the needs and perceptions of technologically advanced economies. However, in recent times, the importance of traditional knowledge which is the inheritance passed down through generations for their benefit has been recognized as one of the aspects that needs protection as well. This traditional knowledge also requires protection from exploitation in the hands of individuals and corporations.
There has been an ongoing debate that the current IP tools such as patents, plant variety protection, trademarks, copyrights, geographical indications, and biological diversity protection are sufficient to provide adequate protection to the traditional knowledge. However, as discussed above, IP rights were designed around technological practices driven by Western Industrialization, which is thus not equipped to protect such traditional knowledge.
TK is often held collectively and cannot be ascribed to an individual owner which makes its protection even more untenable. There is no adequate documentation of such TK and is generally passed down through generations orally. This has caused TK to be ignored, undervalued, and marginalized. In fact, one of the fears that these communities face is that if such TK is fixated, it would be expropriated and be out of their hands. There exists a need to evaluate traditional knowledge and to provide it the adequate status required for its protection. Thus, in this paper, we would discuss the intersection and protection of traditional knowledge by particular IP instruments and how there are still gaps remaining that need to be addressed, and the best manner for which is through a sui generis legislation.
Overlap with the Different forms of IPR
There has been found that TK can be protected through different IPRs. However, none of them have been seen as the best alternative for the kind of protection that TK requires.
Traditional Knowledge and Geographical Indications
Several TCEs are able to be protected through GI. However, there are many lacunae in the protection available under GI as it can only be used for the protection of a product belonging to a particular region. It does not cover any processes which might form part of traditional knowledge, for example, crop rotation also forms a part of the traditional knowledge held by farmers. Furthermore, it is not necessary that a particular indigenous community would be limited to a particular geographical region, thus protection of knowledge through the point of origin also becomes difficult.
Traditional Knowledge and Trademarks
Trademarks offer limited protection as there is no guarantee of monetary compensation for the knowledge holding communities. TCEs are also a subject of trademark protection. Further, the role a trademark performs is as a source identifier which would not help much other than mark some of the indigenous products as such which has actually been done in Canada and Australia. But it does not cure the underlying issues.
Traditional Knowledge and Patents
Patent laws in most jurisdictions prescribe that naturally occurring substances (in the USA) or traditional knowledge (in India) are not patentable. Traditional Knowledge Digital Library is one of the initiatives taken by the Indian Government in order to prevent the patenting of traditional knowledge. It serves as a directory that can be cross-referenced when an invention involving such knowledge comes up for patent inspection. This was seen as necessary after the Turmeric and Neem fiasco (wherein the active ingredient in these resources was extracted and granted a patent in the USA).
However, there are many jurisdictions that do not have any such repository, and even in India, it is not necessary that all traditional knowledge held within the Indian territory could be feasibly collected. So, if some foreign person wants to patent any such traditional knowledge, there is a high chance that they will be granted the patent. Furthermore, most traditional knowledge is passed down orally and thus there is no proper record or documentation against which a patent can be examined. It would also be possible that one does not become aware of such a grant as it has been granted in a foreign jurisdiction. Also, there is a requirement to mention the source of a biological resource used in an invention. But what if only the active ingredients were extracted, a foreign jurisdiction would not realize the implication of the same as has already been seen in the case of Turmeric and Neem patents.
Biological Diversity Act, 2002 also requires permission from the National Biodiversity Authority when any biological resource found within Indian forests is to be used as an ingredient for an invention that is being patented or used in research. They, in turn, try to ensure that some of the accruing economic benefits are realized and presented to the indigenous communities living in the abovementioned forests. However, this only applies to resources and not processes
Traditional Knowledge and Copyright
Copyright only provides limited protection to creative works produced by indigenous communities which allows them to preserve and promote expressions of their culture. For example, totem poles sold by Canadian communities. These also allow them to receive some economic gratification for the traditionally produced goods of these communities.
For many communities, Traditional Cultural Expressions (TCEs), traditional knowledge, and associated genetic resources form part of a single integrated heritage. Yet, because TCEs raise some particular legal and policy questions in intellectual property, they receive a distinct focus in many national and regional IP laws and in WIPO’s work.
TCEs can sometimes be protected by existing systems, such as copyright and related rights. For example, contemporary adaptations of folklore are copyrightable, while performances of traditional songs and music may come under the WIPO Performances and Phonograms Treaty and Beijing Treaty on Audiovisual Performances. The protection of TCE is related to the promotion of creativity, enhanced cultural diversity, and the preservation of cultural heritage.
Reasons for need of a sui generis legislation for the protection of Traditional Knowledge
After determining that, none of the above IPRs not even if they are compounded are able to completely protect traditional knowledge and the rights of the affected indigenous communities. Thus, the need for sui generis legislation becomes even more apparent for the simple purpose of protection and respect of the culture of the communities. Furthermore, there are economic considerations to be taken into account as well. The legislation would point out the boundaries within which transactions between communities and other parties regarding traditional knowledge will take place which is not present at the moment. Also, legislation could also assure that the knowledge is handled with the appropriate amount of respect and consideration and that there is no overexploitation.
Thus, from the above discussion, it is clear that traditional knowledge is protected under IPR only. However, the extent of protection is in question, Most people feel that a sui generis legislation is a way to go to provide adequate IPR protection to traditional knowledge. It is up to the various jurisdictions to determine the best mode of protection for such important knowledge.
 Biological Diversity Act, 2002.