India: Traditional Knowledge And Intellectual Property

Last Updated: 15 November 2006
Article by Manisha Singh

Traditional knowledge generally is mental account and record of local biological resources, animal breeds and local plant, crop and tree species. It also includes practices as seed treatment and storage methods and tools used for planting and harvesting, which play a fundamental role in a people's livelihood, maintaining their health, and protecting and replenishing the environment. Traditional knowledge is based upon experience and adaptation to a local culture and environment, developed over time, and continue to develop due to experimentation in the integration of new plant or tree species into existing farming systems or a traditional healer's tests of new plant medicines. Thus Traditional Knowledge is dynamic in nature. Traditional knowledge is collective in nature and is often considered the property of the entire community, and not belonging to any single individual within the community. This knowledge is used to sustain the community and to maintain the genetic resources necessary for the continued survival of the community.

The knowledge of and uses of specific plants for medicinal purposes (often referred to as "traditional medicine") is an important component of TK. Traditional medicines are a major source of materials and information for the development of new drugs in a rapidly growing herbal remedies market. As interest in traditional medicine is increasing, indigenous knowledge of the cultivation and application of genetic resources is becoming exploited at an alarming rate without incurring any benefit to the community which possesses it. Here comes the role of intellectual property protection. Intellectual property rights (IPRs) are the legal protections given to persons over their creative endeavors and usually give the creator an exclusive right over the use of his/her creation or discovery for a certain period of time. But Intellectual property is based on notions of individual property ownership and in many indigenous community outlook, any such property rights, if they are recognized at all, should be extended to the entire community. This concept can be often alien to many local and indigenous communities. Many such incompatibilities between TK and IPRs appear when ownership of TK is inappropriately claimed or TK is used by individuals or corporations that belong to local communities in genetic resources rich and often developing countries. The term "biopiracy" is often used to describe the misappropriation of knowledge and/or biological materials from traditional communities.

In fact, intellectual property rights can actually benefit traditional knowledge holders by promoting both their material and moral interests. The key to realizing these benefits is in understanding how the intellectual property rights system works and the place that traditional knowledge can have in the system.

In order to protect or preserve traditional knowledge, it is important to be able to locate and identify this knowledge. Although TK is mostly transmitted by word of mouth, some other forms of record keeping may exist. An element of traditional knowledge for which intellectual property protections could potentially apply is called a knowledge claim. A traditional knowledge claim contains three essential components: a genetic resource, a preparation or process, and an end result or product derived from a preparation or process. The genetic resource is typically a plant. The process encompasses the various ways of using the plant for an end result. Processes may include methods of growing, harvesting, extracting, preparing, or applying the plant. The end result is the benefit from using the biological resource and the process. After identifying a traditional knowledge claim, the next step is to determine who the knowledge holders and stakeholders are for that claim.

TK can either originate within a community or enter a community from the outside. If the knowledge is not originally from within the community in question, then it may not be subject to any intellectual property rights, and may already be part of the public domain. If the knowledge is from within the community, then the next step is to determine who holds the knowledge. The knowledge holders are the people who hold and/or use the knowledge, and stakeholders are the people in the community with a direct interest the knowledge. When making a decision in relation to a specific knowledge claim, one must consult all of the stakeholders of that claim, which is often the entire community, before making a final decision about how any intellectual property rights should be applied.

The next step is to determine any potential IPR options. It will depend on identification of key cultural characteristics and community goals for a specific claim. This will help accentuate potential options, eliminate poor options, and identify potential conflicts between cultural aspects associated with the claim. To determine community goals, categories such as financial gains or other economic benefits from TK, sharing TK for public good, avoidance of intellectual property claims on community knowledge or resources by outsiders and preservation of the traditional knowledge can be embarked on.

The next step is to work with other members of the community in order to evaluate the possible benefits or consequences of an IPR option. This process includes identification of how the IPR will be used keeping in sight of the cultural aspects and community goals identified while selecting the option. The long-term implication of the selection of the IPR option is also important. For some IPR options, it may be necessary to form an official organization that is legally recognized in the country of origin to which all members of the community will be members or designate a committee that deals specifically with TK and IPR decisions for the community. This can be especially useful when filing a patent application. This organization will be deemed the "assignee" to the invention. Everyone designated as part of the origin of the knowledge in the community is then an owner of the patent and not an individual.

Addressing IPRs for TK can be a very large task for a community. It is important to always seek the guidance of intellectual property professionals that can provide specific advice for the community and traditional knowledge. Also, local, national, or international organizations (either governmental or non-governmental) may be able to provide technical or legal support to pursue the IPR option.

© Lex Orbis 2006

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.

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