Traditional Knowledge- The Need for A Sui Generis Legislation

India is widely known for its diversity, culture and traditions dating back to the Indus Valley Civilisation. In India, the cultural heritage of natives holds an important place. After all, we are the nation where Yoga and Ayurveda originated from.

Traditional Knowledge comprises of practices, information or knowledge that are often indigenous to a tribe or community and have passed over generations bearing their roots to ancient times and hence, are generally in oral form.

The commercial use of Traditional Knowledge based resources opens a new avenue of products, services and creations bearing extremely high medicinal, environmental, recreational and artistic value. To name a few, sacred groves are created in forests by Garo and Khasi tribes of North-Eastern India for conserving forest resources. Similarly, the Onges of the Little Andaman Island and the Cholanaickan tribals of Kerala have devised various social techniques and procedures for conservation of environment and sustainable exploitation of resources.[1] Apart from rich biological resources, India is also home to various forms of crafts, dance and music forms.[2]

The unauthorised use of traditional knowledge by companies or individuals is referred to as biopiracy which is one of the major threats to traditional knowledge.[3] Generally, in case of biopiracy, not only the traditional knowledge is exploited but also related natural resources belonging to the country where such knowledge came from. A major chunk of drugs monopolizing the pharmaceutical industry today, utilize compounds derived from biological resources which are proven to have medical utilities for such local or indigenous communities.[4]

Another major concern with respect to utilising traditional knowledge is inaccessibility due to such knowledge being oral in nature coupled with the issue of language barriers. Moreover, majority of books dealing with traditional medical practices and medicines are available in languages that are known to only a minority of the population which in turn prevents their usage in an efficient and optimum manner and usually, ends up rendering them of no use due to their inaccessible nature. Hence, translation of such texts is imperative for the betterment of the society and the usage of such resources in the best possible manner.

Tragedy of the commons is another peril towards the protection and preservation of traditional knowledge. Traditional knowledge is viewed as a common resource, and thus, its protection is our common duty which is also very conveniently ignored by individual conscience.[5] Therefore, the need to protect becomes a duty for ‘others’ to perform.[6]

However, various aspects in relation to Traditional Knowledge are not afforded legal protection and growing commercial use of Traditional Knowledge has left it exposed to over-exploitation, unauthorised use and misappropriation which can result in grave harm to the communities from where it has originated.

In one such examples of unauthorised use of Traditional Knowledge, a patent was sought from the US Department of Agriculture in the European Patent Office over a method of preventing fungi in plants by using Neem oil extracted from Neem. Subsequently various representations were made in the European Patent Office by some Indian and International organisations. They furnished various ancient documents of Ayurveda that described the way neem is used for protecting plants from fungal infections and treating dermatological disorders in humans and accordingly the European Patent Office revoked the patent.[7]

A plant called Arogyapaacha is used by the Kani tribe in their traditional medicines. Within this tribe, only the tribal healers have the rights to transfer and practice certain traditional medicinal knowledge. This knowledge was disclosed to some Indian Scientists by members of the tribe who later developed a medicine called Jeevani from the same and filed for patent over the same for having stress relieving, anti-fatiguing and immune-boosting properties. This drug was later licensed to an Indian Ayurvedic Pharma company and a trust fund was formed for distributing the benefits derived from the commercialisation of Arogyapaacha. The trust fund is used for sustainable harvesting of the plant and but has also posed several problems which raise questions over the commercialisation of traditional knowledge.[8]

As a consequence of these threats, a drive for the protection of traditional knowledge in India began in 1990s which later led to the creation of a digital library for traditional knowledge. This endeavour was ignited when two Indians at the Medical Centre at University of Mississippi were granted a patent for the wound healing properties of turmeric. They were given the exclusive right to sell and distribute turmeric powder. The Indian Council for Scientific and Industrial Research challenged this before the United States Patent & Trademark Office on the ground that turmeric is part and parcel of India’s traditional knowledge and provided numerous documents in various languages as evidence to prove the same. As a result of this, the US Patent & Trademark Office revoked the patent over turmeric.

To prevent these kinds of mishaps from happening in the future, a Traditional Knowledge Digital Library was set up in India in 2001 by CSIR and Ministry of AYUSH.[9] However, this step has its own flaws as it results in public disclosure of traditional knowledge which leads to further investigation into the same by the public ending in exploitation of resources related to such traditional knowledge.

Traditional knowledge can be protected by way of Positive Protection that is by way of enactment and enforcement of legislations, directives and rules & by way of Defensive Mechanism for preventing individuals and corporation from acquiring Intellectual Property Rights over traditional knowledge.[10] India has no particular legislation for the protection of traditional knowledge but some remedies on very limited grounds have been provided in some Intellectual Property legislations.

Although utilisation of traditional knowledge in a legally protected and sustainable way may ensure betterment in the area of medicines, environment and human life, the current Intellectual Property regime cannot protect traditional knowledge because of several reasons:-

i. Intellectual Property regime seeks to privatize ownership and create a monopoly-like situation where on the other hand, traditional knowledge is based on the concept of collective ownership.

ii. The protection afforded by Intellectual Property rights is bound by time whereas traditional knowledge is protected perpetually, being passed from generation to generation.

iii. Intellectual Property Law has a restrictive definition of invention for which satisfaction of requirements such as novelty, inventive step and industrial application is necessary where on the other hand, traditional innovation is incremental, informal and gradually occurs over a long period of use and time.

Section 25 and Section 64 of The Patents Act, 1970 provides for revocation of a patent application filed on the basis of a Traditional Knowledge. Similarly, Section 31A of the Copyright Act, 1957 provides for protection of unpublished Indian work, however, such protection is only for a limited period and only provides a limited scope of protection.

It can thus be concluded that the remedy provided under the existing Intellectual Property legislations are inadequate and ineffective for ensuring proper protection of Traditional Knowledge. Therefore, a sui generis legislation is an imperative requirement for providing proper legal protection to Traditional Knowledge and devising an effective mechanism for its efficient and wider use.[11]

References

[1] Sahai Suman, “Indigenous Knowledge in India and its Protection in India”, in CHRISTOPHE BELLMANN, GRAHAM DUTFIELD and RICARDO MELENDEZ-ORTIZ, TRADING IN KNOWLEDGE: DEVELOPMENT PERSPECTIVES ON TRIPS, 166, (Scan Publications Limited 2003).
[2] National Sample Survey Organization(2004: 54) Survey of Unorganized Manufacturing, 45’h and 51″ Rounds, 1989-1990 and 1994-5, New Delhi, India.
[3] Graham Dutfield, Protecting Traditional Knowledge: Pathways to the future, INTERNATIONAL CENTRE FOR TRADE AND SUSTAINABLE DEVELOPMENT, http://www.ictsd.org/downloads/2008/12/protecting-traditional-knowledge_pathways-to-the-future.pdf.
[4] Manuel Ruiz, The International Debate on Traditional Knowledge as Prior Art in the Patent System: Issues and Options for Developing Countries, CENTRE FOR INTERNATIONAL ENVIRONMENT LAW (2002), http://www.ciel.org/Publications/PriorArt_ManuelRuiz_Oct02.pdf
[5] Abha Nadkarni & Shardha Rajam, Capitalising the benefits of traditional knowledge digital library (TKDL) in favour of indigenous communities, NUJS Law Review, 1 (2016).
[6] Edson Beas Rodrigues Jr., Property Rights, biocultural resources and two tragedies: Some lesson from Brazil , GENETIC RESOURCES AND TRADITIONAL KNOWLEDGE: CASE STUDIES AND CONFLICTING INTERESTS, 132 (2012).
[7] Hetvi Trivedi, Protecting Traditional Knowledge – Indian story till date, THE SCCONLINE BLOG, (Feb. 3, 2020, 2:28 PM), https://blog.scconline.com/post/2018/04/23/protecting-traditional-knowledge-the-india-story-till-date/
[8] , Protection of Traditional Knowledge in India, SHODHGANGA, 53, 1 (), https://shodhganga.inflibnet.ac.in/bitstream/10603/14508/9/09_chapter%203.pdf
[9] WORLD INTELLECUAL PROPERTY ORGANIZATION, https://www.wipo.int/wipo_magazine/en/2011/03/article_0002.html (last visited Feb. 3, 2020).
[10] Vatsala Singh, IPR vis-à-vis Traditional Knowledge, KHURANA AND KHURANA ADVOCATES AND IP ATTORNEY, (Feb. 3, 2020, 2:50 PM), https://www.khuranaandkhurana.com/2018/10/05/ipr-vis-a-vis-traditional-knowledge/.
[11] Speech Of Hon’ble Mr. Justice Vijender Jain, Chief Justice, Punjab And Haryana High Court, Chandigarh In A Seminar Of Asia Pacific Jurist Association (Apja) On “Safeguarding The Traditional Knowledge In India” On 28.04.2008 In Delhi.

Author Details: Kunal Bhardwaj and Rachit Taparia (3rd-year students at Gujarat National Law University, Gandhinagar