October 28, 2021

Traditional Knowledge and Intellectual Property Right

Introduction

Intellectual property as a knowledge tree has got numerous branches and mutually benefited from other branches. Philosophy of Protection of intellectual property was intended during the industrialization era in the West and grew therefore in accordance with the apparent necessities of cutting edge robotization of society.  The primary aim of intellectual property law is to promote the existence of huge variety of innovations. The time calls for protection of traditional knowledge from being misused commercially, shielding the native individuals from such misfortune and furthermore assist them with protecting such antiquated knowledge

There has been a great deal of discussion to secure conventional information under IP system yet that in itself faces a ton of difficulties, for example,

 a) Under which IP which customary information can be ensured?

b) Since each IP assurance is accommodated a restricted timeframe then how might traditional knowledge have perpetuity?

 Security of traditional knowledge is established because of the primary issue of Bio-piracy which happen when there is commercial use of such information without legitimate approval of the native individuals related to the information.  India should take the lead to create a comprehension among individuals who are till date totally uninformed or have exceptionally restricted information on Intellectual Property Rights just as the term ‘customary information’.

Traditional knowledge fundamentally covers knowledge accumulated through generations by traditions. An ideal example for Indian traditional knowledge would be ‘neem.’ One can find the medicinal property of neem and its usage in many ancient Indian manuscripts. In addition, natural science plays a significant part in the development of drugs for curing diseases.

Traditional knowledge is now notorious as it is in high demand in western country’s scientific and medical industries. In other words, traditional knowledge now has enormous economic significance.

Traditional Knowledge and Patent

Traditional knowledge from a patent perspective would be any documented or undocumented information prevailing among indigenous people. Documented TK considered to be prior art cannot be patented as accessible to the public, so there is no restriction behind its commercial use. Indian laws concerning intellectual property upholds that any invention that, in effect, is traditional knowledge cannot be patented as it is will not be considered as an invention according to section 3(p) under the Patent Act. For preventing any instances of tk patenting, the CSIR has taken the initiative towards documenting Indian Traditional knowledge in the form of a digital library called ‘Traditional Knowledge digital library’ (TKDL). Copies of TKDL are available to every patent office for them to consider.

Regarding undocumented TKs, the Indian patent office has recently come up with a circular wherein all the applications related to TK have been provided online for challenging any discrepancies regarding the same by reporting it to the patent office.

There are few instances where patents were denied because it is a TK, i.e., turmeric case, neem case. Even now, when medical science has developed, so many people still find a way back to old ways of healing wounds and increasing immunity by using turmeric. Turmeric is a tropical herb found in east India widely used throughout India. It is used as a blood purifier, a standard medicine in treating cold, and anti-parasitic for many skin infections.

In 1995 university of Mississippi medical centre was awarded a patent on turmeric for containing wound healing property. An exclusive right has been granted to commercialize the same. Later, the Indian Council for Scientific and Industrial Research (CSIR) has objected to the patent granted and provided USPTO with documented evidence of the prior art. It was a herculean task to find factual evidence on the use of turmeric powder through oral and topical, even though turmeric use can be traced back to ancient times in India. References as many as of its use were found in different languages. Therefore, the USPTO had no way but to revoke the patent upholding that the use of turmeric was an old art of healing wounds; hence, the tk that belonged to India was safeguard from being patented.

Like turmeric, there was an application for a patent on the neem filed by W.R. Grace and the department of agriculture in the European patent office. India filed a legal opposition against it by the new Delhi-based research foundation for science, technology, and ecology (RFSTE) in cooperation with IFOAM and Manda aelvoet, former (MEP). A tree legendary to India is used as an astringent in so many fields. The opposition had submitted evidence of ancient Indian ayurvedic texts that had to describe the hydrophobic extracts of neem seeds were known and used for centuries in India, both in curing dermatological diseases in human and plants.

The EPO had acknowledged the lack of novelty, and inventive step, thus revoked the patent. However, there are many instances where US patents were taken out, which were neem-based emulsions and solutions.

TK promotes community interest; on the other hand, the patent promotes private monopoly, an overlapping concept. Thus, a need for the mean path that strikes a balance between both is necessary. This balance has been brought in India by enacting the Biodiversity Act, 2002, which introduces the concept of benefit-sharing concerning the commercialization of products obtains from resources that are well protected by benefit clammers. A percentage of the revenue was shared with TK holders in both jeewani and hoodia cases where the balanced model was adopted.

Traditional Knowledge for University Research: A moment of conflict

For quite some time, the cultural knowledge of Indigenous communities has been necessary to university research in social sciences, like ethnographers and anthropologists. As of late, there has been expanded interest in traditional knowledge1by analysts from normal sciences and biotechnology (e.g., Phyto chemists, microbiologists, pharmacologists). By and large, social science is more subjective and context-oriented, e.g., understanding the social frameworks of which traditional knowledge is a section), and social researchers will, in general, have more considerable recognition to moral issues in research that includes people since working with individuals is regularly the idea of their examination. By analysis, scientists from the characteristic sciences and biotechnology will, in general, be keen on quantitative methodologies and the more specialized or applied parts of social knowledge and, as a rule, have less to do with individuals who are the knowledge holders. What is more, offered the various chances for mechanical examination partnerships nowadays, regular researchers are generally more mindful of the intellectual property ownership of their exploration items. In any case, research including traditional knowledge, exceptionally that with saw commercial value, is requesting an unmistakable comprehension of both the moral and legitimate issues and how research morals and intellectual property ownership strategies interrelate. Given the undeniably political elements of exploration, including traditional knowledge, understanding here is fundamental for university organizations and university researchers, regardless of their discipline.

Protection of Traditional knowledge: Copyright

Copyright guarantees the type of articulation and not simply the thoughts. The copyright holder is authorized to do any of the demonstrations specified under section 14 of the Copyright Act, 1957. Copyright can ensure the artistic signs of the TK holders, particularly artists who have a place with native and local communities, against the unauthorized proliferation and misuse of those appearances. Moral rights address the reciprocity between the creators/artists/authors and their work. These rights could provide a compelling approach for securing the rights of native people groups in works that get from native knowledge.

Traditional Knowledge: Human Rights Protection

Two defensive standards have been utilized to ensure traditional knowledge utilizing intellectual property apparatuses. The principal defensive worldview looks to keep others from utilizing or getting intellectual property rights over traditional knowledge. For instance, a few communities have made traditional knowledge sets to con firm their traditional knowledge as earlier craftsmanship to forestall apparent maltreatments like biopiracy. Albeit traditional knowledge information bases may pre-empt some from getting rights over traditional knowledge, data sets uncover such traditional knowledge to people in general. This turns into an issue since numerous communities prefer to keep such traditional knowledge inside their local area. These communities have their own traditional or standard laws that direct the utilization of traditional knowledge that may contrast generously from their general framework or the global arrangement of intellectual property rights. Exposure may disregard these traditions.

The second defensive worldview (frequently called positive assurance) looks to get lawful defensive rights over traditional knowledge. This is accomplished by either utilizing the current laws or utilizing authoritative intends to institute new sui generis laws. Some have contended that a few nations like the United States may deal with established issues allowing ceaseless rights to these communities. They likewise raise utilitarian worries with allowing legitimate rights to traditional knowledge. For example, a few types of traditional knowledge (like remedies for illness) might be utilized to help other people, and if special rights were in all actuality, some might go maintained. Different concerns manage the fair sharing of advantages and assets.

Indigenous and nearby communities have contended that they, for the most part, do not utilize such impetuses to develop. Their utilization of knowledge is profoundly and culturally guided. Misappropriation and abuse of this knowledge may disregard common laws at the centre of their group and cultural personality. These convictions are, as of now, secured by a few established arrangements and legal laws and are progressively perceived as an individual human right inside the United Nations.

Additionally, indigenous and nearby communities have contended that public cases in their knowledge without their agreement on the sum to misappropriation of their character and heritage, disregarding their fundamental, unavoidable, and aggregate human rights.

Protection of Traditional Knowledge: Trademarks

By Trademark Act 1999, indigenous items, even agricultural and organic items, can be ensured. A wide range of goods manufacturers and services offered by manufacturers, experts, artisans, and dealers in local and indigenous communities, or by the elements that address them or in which they are deduced (cooperatives, societies, and so on), can be distinguished from similar sorts of goods and services given by others using trademarks and administration marks. The trademarks are an essential element in the commercial advancement of goods and services both inside the country and abroad. Through mindfulness programs, indigenous communities can be created mindful that they can utilize Trademark to extract monetary profits from their TK and shield it from uncalled for commercial misuse by outcasts. Aggregate marks can likewise be utilized to ensure handicrafts and cultural goods. Confirmation marks can be utilized to distinguish a vast ghost of goods and services, going from traditional craftsmanship and work of art to food items, garments, and vacationer services.

Confirmation and aggregate marks might be utilized to secure TM. If an organization is established to certify that specific restorative items conform to established principles, this organization may utilize Certification marks to ensure TM. This is valuable for the situation where botanicals (i.e., Fiber, juice, oil, mash, tissue, or different segments got from plants) are extracted, prepared, or cleansed by characterized principles before delivery to unfamiliar business sectors. Purchasers in those unfamiliar business sectors would be slanted to buy items certified to guarantee the therapeutic items containing botanicals they buy satisfy reliably high guidelines of value or intensity. Furthermore, the cultural icons, signs, and symbols of indigenous communities can be secured through the Trademark, and enlistment of an imprint gives them necessary lawful assurance.

Protection of Traditional Knowledge: Geographical Indications 

The merchandise made in the area of a country or a district or region in that region. A given quality, notoriety, or another trait of such products is owing to its Geographical Origin. GI: Darjeeling Tea Kanchipuram Silk, Alphanso Mango, Nagpur Orange, Kolhapuri Chappal, Bikaneri Bhujia, Agra Petha, Goa Feni, and so on TK is held aggregately by the indigenous communities, and GI is the most appropriate type of insurance for TK. The Geographical Indications of Goods (Regulations and assurance) Act remunerates a local area in a particular area. GI insurance is legitimate for a very long time yet can be re-established ordinarily so that GI can be ensured for a boundless time frame. The strategies for creating merchandise are changing with time to give better quality to the item. The generosity and notoriety of the merchandise are acquired over numerous years or hundreds of years. GIs reward this standing of the given item and are not restricted to a particular creation strategy for a given item yet additionally permitting development. The indigenous communities have developed their traditional techniques over hundreds of years to confer explicit attributes to items. GIs offer acknowledgment to their endeavours and disallow others from free-riding on that standing. However, long standard and cultural attributes of the given item in the suitable spot of development are kept up, the GI is ensured as the rights under GI are local area rights, so these cannot be moved unreservedly starting with one proprietor onto the next.

GIs might be utilized to secure traditional therapeutic items – mostly where qualities of such items containing botanicals are due to the geographic beginning of the items. GIs perceive and reward makers for their age-long cultural commitment to the job, sidelong learning, preservation, and social systems administration by enhancing their items. By perceiving the cultural commitments and innovativeness of TK holders, GIs may add to the safeguarding and development of the culture.

Case study

Aranmula Kannadi: Aranmula – a country area in Pathanamthitta District of the State of Kerala in India and is renowned for a distinct type of metal mirror called ‘Aranmula kannadi’. The outstanding quality of the mirror delivered up of tin and copper makes it distinctive from the usual mirror. Only a few traditional families are involved in the composition of this metal mirror. The mirror is produced by using a specific combination of tin and copper, and this specific combination is retained secret by the members of the family. Keeping the TK linked with the manufacture of the unusual mirror as the closely safeguarded secret is accountable for the prominence of the product and the control of the business exclusively within specific family groups for a long time. ‘Aranmula Kannadi’ is listed as a GI under the Society’ Parthasarathy Handicraft Centre’ Act. The struggles of generators to keep the traditional procedure as strictly safeguarded secret and protect goods under the GI Act provide sufficient protection to TK.

Protection of TK through Industrial Designs

Industrial design is one type of intellectual property where the plan framework centres around the tasteful component of an article got from its visual appearance. The plan and state of furniture, garments, containers, articles of wood, cowhide ceramics, and so forth set up by indigenous individuals or relationship for the benefit of indigenous individuals in a traditional fashion can be ensured as modern plans. Traditional craft things like hand-woven articles like rugs, cotton bed blankets can likewise be enrolled for assurance as an Industrial plan. Countless types of traditional plans are established inherently in the rich cultural heritage of India. For example, hand-block prints known as “baandhnis” of Rajasthan are the renowned traditional plans of India. A modern plan is one type of intellectual property where the plan framework centres around the tasteful component of an article got from its visual appearance. The plan and state of furniture, garments, containers, articles of wood, cowhide ceramics, and so forth set up by indigenous individuals or relationship for the sake of indigenous individuals in a traditional fashion can be secured as mechanical plans. Traditional craft things like hand-woven articles like rugs, cotton bed blankets can likewise be enlisted for insurance as an Industrial plan. Countless types of traditional plans are established naturally in the rich cultural heritage of India for example ‘baandhnis’ of Rajasthan, the famous traditional plans of India.

Conclusion

As a country, India is rich in traditional knowledge, which needs protection from commercialization and misuses supplementary benefiting from the same. Documenting and publicizing TK is the key to protect it from misappropriation, and India is the pioneer in this field. However, in addition to the TKDL system, there is still room for amendments. The dependency of the Indian legal system upon existing IP laws for protecting TKs has always been in the talks because of its locking horns with the latter. Therefore, new reforms and regulations concerning the preservation of TK and active promotion of IP laws to make indigenous people more cognizant of their rights ensured by law are of pressing priority.

Author-  Bias Majumder & Deepanwita Biswas

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