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:
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
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.
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.
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