The importance of traditional knowledge of the indigenous communities is now known to the World. With this realised importance comes the need to protect this knowledge and to prevent its misappropriation. But the question is how?
In the past few years, ample amount of discussions and debates on the subject of protecting traditional knowledge as intellectual property, have been occurring at the WTO, Conference of Parties at the Convention on Biodiversity, etc. A few national governments in these discussions have embraced the view that traditional knowledge needs to be secured legitimately, and they have condemned the formal IPR framework in its available structure for not just neglecting to give satisfactory protection to traditional knowledge additionally for legitimizing its misappropriation.
In India, after the neem patent controversy1, the need to protect the traditional knowledge of India has gained importance. India has taken an initiative through TKDL, a collaborative project of Council of Scientific and Industrial Research (CSIR) and Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH), which helps the examiners of Patent Offices to search for any information regarding substance or practice while granting patents and they can dismiss the grant of patent, if the substance or practice is already there in the TKDL list as Indian traditional knowledge. Critics have stated that this documentation could itself lead to misappropriation of India's traditional knowledge.
With the rise in need to protect Traditional Knowledge and to prevent its misappropriation the main question that has to be answered is: Can IP protect Traditional Knowledge? However, the main criticism of protecting traditional knowledge with IPR is that IPR leads to the commodification of knowledge; it treats knowledge as a commodity with economic value, which is far way different from the perspective of Indigenous People, who treat their knowledge as pious and sacred.
Analysing IP Protection for Traditional Knowledge
While analysing IP protection for Traditional Knowledge, it is important to determine as to under which category of IPR this traditional knowledge can be protected.
Protecting traditional knowledge under Indian Copyright Law
Indian Copyright Law, as such do not provide for protection of expression of folklore or protection of traditional knowledge of indigenous people, however an inference can be drawn from Section 31A2 of the Indian Copyright law, which protects the unpublished Indian work. The Question that arises is if granted, whether copyright law would be sufficient for the protection of traditional knowledge?
Some of the major drawbacks in protecting traditional knowledge with copyright are as follows:
- Authorship: Under the Indian Copyright Law, protection is given to the author or owner of the work. Traditional Knowledge is community owned knowledge and is generally developed and evolved through generations to generation. In such case tracing the author of the traditional knowledge is not only difficult but almost impossible.
- Protection for Limited Time: Indian copyright protection is time confined as in it is granted for a particular term of 60 years. Traditional Knowledge is imperative and it should have perpetual protection rather than limited protection.
- Fixed form: To protect any work with Copyright under the Indian Copyright Law it is required that the work must be present in a tangible form. Fixed form of traditional knowledge is hard to find. In most of the cases, traditional knowledge is passed over generations in a community in form of stories. These stories are rarely available in fixed form.
As per Indian Copyright law traditional knowledge fails to adhere the requirements that are precedent to copyright protection. Hence, the protection can easily be denied to traditional knowledge for not fulfilling the basic requirements for copyright protection.
Protecting traditional knowledge as Patents under the Indian Patents Law
- In India, patents are given to an individual for his invention. Traditional Knowledge is community owned knowledge and not by an individual. Moreover, critics are of the view that traditional knowledge is naturally owned knowledge and not an invention, therefore no patent protection can be granted to it.
- Patents are granted to invention that is invented by a single act of invention whereas traditional knowledge is evolved and developed over generations.
- Indian patents are cost bound and their registration and maintenance cost a lot, which is an impossible take on the part of indigenous people as they lack financial assets.
- Moreover, it is quite difficult on the part of indigenous people to engage themselves in the legality and technicality of patents.
This is quite clear from the above contentions that patent protection will not work for traditional knowledge.
Protecting Traditional Knowledge as Trade Secrets
Protecting traditional knowledge as trade secrets is quite possible for the indigenous people as it does not require any cost. All they need is a conscious effort on their part to keep their knowledge as secret. Generally, traditional knowledge is intact with the community members only and therefore, can be protected as trade secret.
From the above discussion it is clearly evident that India has quite rich and flourishing traditional knowledge and this knowledge can be used in various ways in different sectors like pharmaceuticals, agriculture etc., but somehow Indian Intellectual Property laws fail to provide effective protection to it. To check the misappropriation of this rich knowledge, some alternative measures like sui generis system and benefit-sharing schemes can be taken up. The concept of benefit-sharing must be encouraged when any research on Indian traditional knowledge is done so as to benefit the indigenous people as well. However, through various declarations by the indigenous groups, it is seen that they do not demand IP protection instead they just ask for few rights to control and manage their knowledge and surrounding.3
1 US patent No 4946681 and US patent No 5124349 were granted by the US Patent Office to W.R. Grace for extraction and storage processes of Neem, which is traditionally used in India since ages for its medicinal properties. US Patent Office counts only published work on inventions as prior art. However, there was a lot of hue and cry against these grants and US Patent Office Policies. India claimed that US is stealing their knowledge.
2 Indian Copyright Act, Section 31-A. Compulsory licence in unpublished Indian works- (1) Where in the case of an Indian work referred to in sub clause (iii) of clause (I) of Section 2, the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to the Copyright Board for a licence to publish such work or a translation thereof in any language.
3 Available at: https://www.culturalsurvival.org/news/brazils-indigenous-peoples-demand-demarcation-their-territories, last accessed on 1st October 2014, 15:10pm.
- "THE NEEM TREE- A CASE HISTORY OF BIOPIRACY" By Vandana Shiva, Available at: http://www.twnside.org.sg/title/pir-ch.htm last accessed on 1st October 2014 at 15:30pm.
- Protecting India's Traditional Knowledge, available at: http://www.wipo.int/wipo_magazine/en/2011/03/article_0002.html, last accessed on 1st October 2014, 1:00pm.
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