INTRODUCTION
India is one of the countries that can boast of both diversity in terms of culture and ecology and the composites of accumulation of the knowledge and ingenuity passed over centuries and built by the indigenous people. There is something so valuable which is Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) such as medicinal systems such as Ayurveda and Siddha, folklore, music, textiles, crafts and agricultural practices. Contrary to the popular perception of them being remnants of the past, these elements are living and dynamic systems, which define the identification of community, spirituality, means of livelihood and intergenerational survival. But legal systems with which measures exist to give protection to creativity and knowledge, especially Intellectual Property Rights (IPR) are ill-adapted, to identify and protect these types of collective and cultural heritage.
The Western-inspired IPR regime as one of the conventional IPR models produces a philosophical and practical disjoint between keener TK, and TCEs. In spite of the pro-active measures taken by India, such as the Traditional Knowledge Digital Library (TKDL) and the Geographical Indications (GIs), there still exists a major missing link. The present system is incomplete and therefore much of India is quite susceptible to bio piracy, misappropriation and loss of culture.
THE NATURE OF TRADITIONAL KNOWLEDGE AND CULTURAL EXPRESSIONS
Traditional Knowledge (TK) is much more of way of practice than a way of conveyance and has to be called the actual, moving repository of knowledge handed down orally or imitatively through a booming of generation as a traditional venue. A broad definition by the World Intellectual Property Organization (WIPO) defines TK as know-how, innovations and other practices that emanate in the lifestyle and emergence of communities with indigenous and local communities. It embraces Cures, agriculture practice, food production as well as conservation of the environment.
Equally, Traditional Cultural Expressions (TCEs) or the expressions of folklore refer to the tangible and intangible manifestation of culture like music, dances, rituals, storytelling, symbols, craftsmanship, and architectural styles. The traditions are transferred through generations to form an identity and a spiritual existence of a community, thus, they are critical components of its culture.
Unlike property and other IP-protected works, TK and TCEs can be said to be owned, orally transmitted, spiritual and shifting. In contrast to patents or copyrights, collectively owned time-limitations and needing physical fixation, TK and TCEs are by definition collective and are aimed at being permanent. They change over time and acquire new forms without losing the classic essence. This renders them hard to secure because the strict IP laws require novelty, authorship, and originality.
LIMITATIONS WITHIN THE EXISTING IP FRAMEWORK
India has come up with a number of measures to contain abuse of its traditional knowledge. Nevertheless, such measures are mainly as defensive in nature and provide limited rights and profit-sharing acknowledgment of communities.
Traditional Knowledge Digital Library
One of the greatest projects that India set up in this sphere is TKDL. It is a collaborative initiative of the Council of Scientific and Industrial Research (CSIR), and the Ministry of AYUSH which translates and classifies the traditional medicinal knowledge in ancient Indian texts into forms which can be understood by international patent examiners. The TKDL having more than 450000 formulations has been able to bar several hundred wrongful patent applications overseas.
Although the TKDL has proven thus far to be an effective countermeasure to biopiracy, it does not grant any beneficial rights on the communities custodial to this knowledge. It does not however enable benefit-sharing or empowerment of the indigenous people in regulating the use of their knowledge.
Bio Diversity Act, 2002
This Act has been designed to control access to traditional knowledge and biological resources of India. It requires them to seek prior informed consent and a fair distribution of benefits with society's knowledge or resources they access. Its implementation is enforced by the National Biodiversity Authority (NBA).
The Act has been an impressive effort with good intentions but its actual functioning is not enhanced by red tapes, complicated authorities regarding compliance, or the prevalent ignorance of local people who follow it. Consequently, the law frequently fails to attain what it promises and that is, to undertake the empowerment of indigenous peoples.
Protection of Plant Varieties and Farmer's Rights Act, 2001
This is a legislation which gives rights to both plant breeders and farmers. It enables farmers to save and trade their seeds and also, it entitles both to sharing benefits in the event that modern plant varieties constituted based on the traditional inputs. It is also one of the very few laws in the whole world to recognize the role of farmers towards biodiversity.
The power of corporate owned seeds and the low levels of information sharing on the legal rights of the farmers however negate the effectiveness of the Act. A large number of rural societies do not even know their individual rights granted by the Constitution of India.
Patents, Trademarks, GIs and Copyrights
The exceptions under Section 3(p) Indian Patents Act are that traditional knowledge in majority of instances is not patentable since they do not contain novelty and the inventive step. Most oral and community expressions will not be covered by the copyright law which necessitates fixation and individual authorship. Trademarks are narrow in relation to that and they do not protect the content of TK or TCEs.
There has been partial success in preserving products whose identity is linked to a certain region-products like Darjeeling tea, Pashmina and Mysore silk, under Geographical Indications (GIs). Nevertheless, they are hard and costly to register, do not secure the underlying methods or cultural meaning.
EXAMPLES OF MISAPPROPRIATION AND CULTURAL EXPLOITATION
Many incidences of misuse and theft of the traditional knowledge of India have played out here, which in most cases lead to economic losses and cultural damage.
Among the most notable cases included the U.S. patent of the wound-healing property of turmeric. The information was in Indian public domain years and yet a foreign organization could patent it until India put a stop anytime. In the same way neem was patented as far as it possesses pesticide qualities though it has been traditionally used over generations in Indian villages.
The patent that the U.S-based Corporation filed against Basmati rice made the rice suffer the high cost of litigation. This controversy made more people aware of the situation and eventually increased the defensive instruments of India, such as TKDL.
Other than bio piracy, cultural appropriation has become a major issue. Western fashion designers have stolen and recreated the ancient Indian products without giving credits or approvals. Spiritual traditions, the cult of music and dances are commercialized in cinematography and advertising, whipping them of their original meaning. Internal cultural appropriation, by which the elite communities inside India cleanse and make popular art forms developed by people on the peripheries, has also been condemned. This is what can be simply termed as "Sanskritization", which destroys identity and acknowledgement of creators.
THE MISSING LINK AND NEED FOR A SUI GENERIS LEGISLATION
The root cause here is that conventional knowledge systems of India are incompatible with the existing IP regime. Whereas the traditional laws regarding intellectual property are constructed on the basis of individual authorship, fixated originality, and temporal rights, TK and TCEs are communal in nature, orally transferable and supposed to last throughout the generations.
Such incompatibility cannot simply be a question of a legal technicality but rather a cultural and philosophical divide. Traditional knowledge systems are not merely a form of economic assets, but they represent spiritual practices, identity and communal obligations too. The current IP regimes exploit them and run the risk of turning sacred traditions into commodities and thereby disempowering those communities in which it originated.
The fragmented legal safeguards that India has on different Acts and administrative structures do not provide an effective system that strengthens the traditional societies. To bridge this gap of the Indian missing link, India must have sui generis IP system which is custom-fit to the specific requirements of TK and TCEs.
INTERNATIONAL PERSPECTIVE AND THE WIPO TREATY
The world has come to realization that the traditional IP systems cannot be used to protect traditional knowledge adequately. The United Nations Declaration of the Rights of the Indigenous Peoples (UNDRIP) passed in 2007 specifically acknowledges the right of the indigenous communities to safeguard, own and evolve their cultural heritage and intellectual property.
The proposed adopted worldwide means has been in development in the WIPO Intergovernmental Committee (IGC) already more than 20 years. More recently the WIPO Treaty on Intellectual Property, Genetic Resources and Traditional Knowledge of 2024 represents a radical turnaround. It lays the requirement of disclosure of origin in patent applications and demands effective and reasonable sharing of benefits, and is an indication of increasing global agreement.
These trends make the moral and legal underpinnings stronger to empower India to adopt a holistic community-based protective structure.
INDIA'S LEGISLATIVE PROGRESS: THE DRAFT TRADITIONAL KNOWLEDGE BILLS
Sui generis protection is a step that India is already taking with suggested laws. The 2016 Traditional Knowledge Bill proposed the establishment of a National Authority and such traditional knowledge trusts was to be organized and run by local groups. The Protection of Traditional Knowledge Bill, 2022 proposed by Dr. Shashi Tharoor has gained important ground recently.
This bill presents a new concept of the so-called know-ledge societies which are community-forming legal entities to control and enforce their TK. The bill dismisses the necessity of registration and rather appreciates the practice of community ownership which does not demand the adjustments in traditional IP formats.
It also recognizes instances when Traditional Knowledge is common between states, which will facilitate collective ownership and collective governance. Vitally, it also gives mandate to prior informed consent, fair benefits sharing and protection without commercial registration, and is best suited to the new frameworks in WIPO.
RECOMMENDATIONS FOR A HOLISTIC LEGAL FRAMEWORK
In a bid to conserve the traditional knowledge coupled with the cultural expression of India, the following recommendations are essential in assisting us in this endeavor:
Expedite Sui Generis Legislation
Pass a single, stand-alone law declaring communal rights, spiritual value and cultural continuity as elements of law rather than exceptions to it.
Expand the scope of Traditional Knowledge Legislations
Cover the whole range of medicinal preparations to textile, oral tradition, music, dances or agricultural practices.
Community led documentation
Support local communities to record and create their cultural appropriate knowledge base and retain control and authenticity.
Mandatory PIC and benefit sharing
Insist that before any use of traditional knowledge is accepted, there should be a prior informed consent and people should get their fair portion of the commercial benefits.
Address Internal Cultural Appropriation
Institute measures that will make sure that the less privileged producers of forms of art are identified and paid, even at the national level.
Build Awareness and Legal Capacity
Carry out education campaigns to make indigenous communities know about their rights and seek legal services to enforce any trespass.
Enhance Digital Enforcement
Control and check digital space regarding unauthorized use of TK and TCEs. Put in place fast-track tribunals to deal with those infractions.
CONCLUSION
The traditional knowledge, cultural expressions of India are not just intellectual assets but fibers of identity, spirituality and resilience in time and through hundreds of generations. Yet without a culturally informed and community-based jurisprudence even such treasures are left vulnerable to plundering and cultural oblivion.
Although defensive strategies such as TKDL and subject-based laws have been useful, they cannot be used as an alternative to a coherent strategy based on rights. The suggested sui generis law is a positive initiative, as it is based on the global best practices and bases protection on the actual experiences of indigenous peoples.
With such a strong sui generis system, India can defend its intangible cultural heritage, give voice to its own people, and lead by example in safekeeping of culture and cultural justice. This is never about law, but of saving the soul of a civilization to generations of the future.
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