Traditional knowledge and its protection: An overview
In a broad sense, traditional knowledge or indigenous knowledge can be defined as the knowledge or systems that belong to regional, local or indigenous communities. Several local communities foster knowledge systems considered traditional knowledge, which may facilitate their intellectual and cultural vitality. According to WIPO, traditional knowledge systems enrich a local community to a great extent since it is developed as an intellectual response to the necessities of life. Hence, it is imperative to protect such knowledge systems. Most often than not, traditional knowledge systems are passed from one generation to another in order to preserve the identity of a local community. Traditional knowledge systems may include songs, stories, dances, rituals, laws, medicines, architecture, skills and art. Over the years, several unauthorized entities have attempted to commercially exploit traditional knowledge without duly accrediting the local community's role in creating and developing the same. Consequently, such indigenous communities may face severe losses, especially commercially. Time and again, international efforts such as the Agreement on Trade-Related Aspects of Intellectual Property Rights and The Convention on Biological Diversity have been made to promote the conservation of traditional knowledge systems. Efforts made to conserve traditional knowledge in India include the Traditional Knowledge Digital Library, a repository of medicine-related traditional knowledge systems and an IPR policy specifically created for Kerala, which proposed the introduction of knowledge commons that was created to protect traditional knowledge.
Forms of protection for traditional knowledge systems
The inventions that are created by local communities are a product of the human intellect. Hence, such communities may also greatly benefit from the outputs of traditional knowledge by protecting it with the help of IP systems. Positive protection of traditional knowledge aims to prevent the unauthorized or commercial use of traditional knowledge by parties that do not belong to the indigenous community. Positive protection of traditional knowledge also focuses on the complete exploitation of traditional knowledge systems to benefit the local community itself. Furthermore, several efforts made by the WIPO and other international organizations focus on recognizing the value of a traditional knowledge system and actively promoting it to create awareness on the actual needs of local communities. Furthermore, positive protection of traditional knowledge aims to prevent the misappropriation of traditional knowledge systems for commercial purposes or other inequitable uses.
Use of existing IP systems to protect traditional knowledge
IP systems that are currently in place can be used to protect traditional knowledge. For instance, unfair competition and trade practice laws can prevent unauthorized entities from creating products that root from traditional knowledge with misleading claims. Such laws may also prevent unauthorized parties from falsely asserting their association with local communities to derive profits from it. Secondly, patent systems in place can be used to protect and provide monetary benefits to local communities with traditional knowledge. Obtaining monetary advantages from patenting traditional knowledge can financially support a local community while furthering research and development pertaining to a product of traditional knowledge. For instance, in 2001, China granted over 3300 patents for innovations relating to traditional Chinese medicine, a product of traditional knowledge systems preserved by local communities in China. Lastly, trademark and trade dress enforcement, as well as geographical indications, may help protect traditional knowledge systems. This will prevent other parties from creating and selling products with trademarks that are exclusive to a particular local community.
Apart from trademarks, patents and competition laws, existing IP can also be adapted with the help of sui generis measures to protect traditional knowledge systems. Several countries have amended and established laws to support the protection of traditional knowledge systems. For instance, New Zealand has amended their trademark law to exclude trademarks that may offend local communities. This was specifically created to protect Maori symbols and to prevent their unauthorized use. To preserve and support the protection of traditional Chinese medicines, the Chinese State Intellectual Property Office has established a team of patent examiners solely to examine traditional Chinese medicine-related patents.
Traditional knowledge systems can be protected defensively to restrict third parties from exercising IP rights over a particular traditional knowledge. Defensive protection can be broadly divided into two aspects: legal aspects and practical aspects. Legal aspects examine the defining criterions pertaining to prior art that apply to traditional knowledge systems. For instance, this may also include orally disseminated knowledge (since most traditional knowledge systems are shared orally among the members of a local community). The practical aspects examine how traditional knowledge systems are made available to patent examiners and other search authorities. It also scrutinizes how information on traditional knowledge systems can be made readily accessible. Thus, defensive protection combines legal and practical aspects to ensure that traditional knowledge is protected with the help of IP systems.
International efforts to protect traditional knowledge systems
The Convention on Biological Diversity
The Convention on Biological Diversity was first signed at the United Nations Conference on Environment and Development. The convention proposed to develop measures for ensuring the protection of traditional knowledge. The convention also touched upon other aspects, such as the measures that need to be taken to use traditional knowledge and the sustainable use of biodiversity. Article 8 of the convention deals with the protection of traditional knowledge systems. It states as follows:
(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices...
Subsequently, in 1996, at the Convention on Biological Diversity meeting, emphasis was laid upon measures that needs to be taken by the signatory countries to protect traditional knowledge.
The Agreement on Trade-Related Aspects of Intellectual Property Rights
Article 27.3(b) of the TRIPS Agreement facilitates the protection of biodiversity and traditional knowledge. However, prior to 2001, the scope of protection facilitated by the TRIPS Agreement was relatively narrow. Post the Doha Declaration of 2001, upon a review of article 27, it was suggested that the TRIPS Council should look into establishing a relationship between the TRIPS Agreement and the UN Convention on Biological Diversity in order to protect traditional knowledge and folklore.
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