India: Protection Of Traditional Knowledge As Trade Secrets

I. TRADITIONAL KNOWLEDGE

Traditional knowledge (TK) may be described as knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. As such there is no definition of TK, it is integral to the identity of most local communities and is an ever evolving body of knowledge. 2

The attempts by a US Company to get Indian traditional products such as the active element of Turmeric and the anti fungal properties of Neem patented raised much hue and cry. All of these instances and many more raised eye brows of the common people because what was being exploited was the Traditional Knowledge (TK) of particular communities. Moreover, such acts also posed to be great economic threats as well to these people.

Basically TK can be provided two types of protection:

  • Defensive protection- this aims to stop people who are not a part of the community from acquiring intellectual property rights over traditional knowledge. One of the excellent examples of defensive protections is India's Traditional Knowledge Digital Library which is formed after collaboration between Council of Scientific and Industrial Research (CSIR) and Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (Dept. of AYUSH), Ministry of Health & Family Welfare.
  • Positive protection- this is the granting of rights that empower communities to use and benefit from their TK.

Recently, attempts have been made to exploit TK for industrial and commercial benefits often leading to misappropriation of knowledge. Problems are not always commercial in nature and often involve ethical, cultural, historical, spiritual and moral considerations. For example, inappropriate use of sacred cultural artifacts, processes, or designs may be offensive to the community. Since as of now TK is not recognized as a separate IPR therefore one has to resort to other forms of intellectual property to protect it. It is hereby contended that trade secret is one of the most desired forms of IPR to protect TK.

II. TRADE SECRET

Trade secret as defined in the Black's Law Dictionary means:

"A formula, process, device or other business information that is kept confidential to maintain an advantage over competitors; information including a formula, pattern, compilation, program, device, method, technique or process- that (1) derives independent economic value, actual or potential, from not being generally know or readily ascertainable by other who can obtain economic from its disclosure or use, and (2) is subject of reasonable efforts, under the circumstances, to maintain its secrecy." 3

Article 39.2 of the Agreement on Trade Related Intellectual Property Rights which talks about the IP protection of Trade Secret, reads as follows: "Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information:

a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

b) has commercial value because it is secret; and

c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret."

III. TRADITIONAL KNOWLEDGE AS TRADE SECRET

Combining the conditions enumerated in the TRIPS and what is being followed as a general trade secret law it can be said that protection under this form of IPR is provided when the following conditions are satisfied:

  • Information has actual or potential economic value;
  • Reasonable steps have been undertaken to protect it; and
  • The defendant obtained the secret by violating an express/implied duty, or resorted to other "improper means."

Here, drawing a reference to the already cited requirements of a trade secret it is contended that generally TK qualifies all the requirements mentioned above. TK has great economic value and can be used to develop products and processes which are profitable. Because of this economic worth TK is generally considered as an economic asset.

As for the requirement of secrecy in the TK context, the courts look to a group's local customary law and demeanor as evidence of efforts to constrain the diffusion of TK with respect to outsiders. Also for this purpose the entire community is considered to be a single unit.4

Trade secrets can be specifically helpful in protection of secret or sacred TK. Customary laws of communities often require that certain knowledge be disclosed only to certain recipients. Courts have awarded remedies for breach of confidence when such customary laws were violated.5 A group of North American indigenous communities, the Tulalip Tribes, have an international application under the Patent Cooperation Treaty (PCT) on the use of traditional Chinese medicine (TCM) to reduce the level of fat in blood, which claims an invention that combines teaching of TCM with modern medicine to developed Story base, a digital collection of their TK. A part of TK is exposed for patent review whereas the rest is kept undisclosed.

Publication of sacred-secret materials has been successfully prevented in Foster v. Mountford,6 members of the Pitjantjatjara Council of Australia obtained an interlocutory injunction, on the basis of breach of confidence, to restrain the publication of a book entitled "Nomads of the Australian Desert." The inhabitants argued that the book contained information that was revealed in confidence to anthropologist Dr Mountford, thirty-five years ago. Here the court held that there was an implied duty to maintain secrecy.

The law of confidentiality and trade secrets has been successfully used to protect non-disclosed TK, including secret and sacred TK. Courts may award remedies for breach of confidence when customary laws of secrecy are violated. Quite a few communities have come up with the idea of protecting their TK as trade secret; an example may be Ecuador where various indigenous and local groups have participated in an experimental project to treat traditional knowledge as trade secret, in conjunction with the NGO Ecociencia.

Even if a person reveals a secret to another under an obligation on that person not to reveal it, that does not amounts to a breach of secrecy. It is not lost even if it is known to the entire community but those outside it do not have much knowledge about it.

In case TK is protected under trade secrets there is no requirement of specific right holder and the community is deemed to have collective personality.7 TK is often conceptualized as a form of collective intellectual property.

If the above conditions are satisfied and the knowledge is then acquired either by means of bio-prospecting or other illegal or deceptive means this knowledge can be protected under trade secrets.

Trade secret is recognized as one of the best forms of IPR to protect TK. It protects the owner against disclosure or unauthorized use of knowledge. It is certainly better than other IPR protections because under trade secrets there is no general requirement of disclosing the information in the public domain after a certain period of time. Also even in case the trade secret has been sold to the other party under a licensing agreement, the general law that applies is that the licensee cannot exceed the purpose for which the knowledge has been transferred to him. If he does, it would be violation of the licensors right under the trade secret. Also, in case of trade secret the information is protected for perpetuity, there is no requirement of criteria like novelty, non- obviousness etc. However absence of any specific trade secret legislation in India can be a serious detriment to this type of protection. But nevertheless there are cases whereby the Indian courts have imported common law principles for protection of secret knowledge.8

IV. CONCLUSION

Propagators of TK protection have been advocating for official recognition of TK within the international IPR regime, however they have failed so far. In light of this some other way has to be found to protect TK, a lot of people have resorted to human rights for protection. The authors here, likes to put forward the point that the existing IPR regime can be used to protect TK and among the existing IPRs Trade Secret is the most accepted form.

It is therefore paramount that national legislation shall be expanded to include specific measures that would enable indigenous and local people to protect traditional knowledge and innovations by way of trade secrets. Such measures may include explicit articulation of traditional knowledge as subject matter for protection through trade secrets.

Footnote

1. 3rd Year Student of GNLU.

2. "Traditional Knowledge," World Intellectual Property Organization, accessed November 12, 2013, http:// www.wipo.int/tk/en/tk/.

3. 9th edition Black's Law Dictionary Bryan A. Garner, editor, (West Group, 2009).

4. Deepa Vardharajan, "A Trade Secret Approach to Protecting Traditional Knowledge," Yale Law Journal 36 (2011): 402, accessed November 12, 2013, http:// papers.ssrn.com/sol3/papers.cfm?abstract_ id=1892359.

5. Foster v. Mountford, (1976) 29 FLR 233, Tilousi v. Arizona State University, Case No CV2004-0115 (Ariz Sup Ct, 2004); Havasupai Tribe v Arizona State University, Case No. CV2004-0146 (Ariz Sup Ct, 2004); Bulun Bulun v. Nejlam Investments and Ors., Unreported, Federal Court of Australia, Darwin (NTG 3 of 1989).

6. Foster, Supra n. 4.

7. Shri Sundaram Varma, "Traditional Knowledge: A Holder's Practical Perspective," ( paper presented at the WIPO Round Table on Intellectual Property and Traditional Knowledge, Geneva, November 1-2, 1999).

8. Zee Telefilms Ltd. v Sundial Communications Pvt. Ltd., 2003 (5) BomCR 404.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Khurana and Khurana
Singh & Associates
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Khurana and Khurana
Singh & Associates
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions