Authored By - Pallavi Lakhera
“When an elder dies, a library burns”–
Amadou Hampate Ba
A community's spiritual and cultural identity is shaped in part through the transmission of its traditional knowledge (TK), which consists of the skills, concepts, and information that are passed down from generation to generation.2 Moreover, TK may be described to as "a living body of knowledge that is being conveyed across the generations," since it includes all advances and developments produced in response to the requirements of society. Traditional Knowledge is informal in nature, despite its long history and the fact that it is often passed down through generations through word of mouth. Therefore, the standard system of intellectual property protection does not apply to such information.
Neem, which has been referenced in Indian writings dating back 2,000 years, is a great example of TK since it is thought to have a wide range of uses and applications, such as insect repellant, cosmetics, medications, etc.
A community's cultural or spiritual identity frequently includes the information, expertise, skills, and traditions that have been produced, maintained, and passed down down the generations within that group.3 TK-inspired innovations may qualify for many forms of legal protection, such as those afforded trade secrets, private information, and patents and trademarks. Nonetheless, current intellectual property arrangements do not safeguard traditional knowledge as such, which is information that has ancient roots and is typically
1 Barry Popik, “The Big Apple: ‘When an Old Man Dies, a Library Burns to the Ground’ (Proverb)” (The Big Apple: “When an old man dies, a library burns to the ground” (proverb))
_the_ground_proverb> accessed October 10, 2022.
2 “Traditional Knowledge” (Traditional Knowledge) www.wipo.int/tk/en/tk/> accessed October 10, 2022.
transmitted orally. The conventional IP system does not provide adequate safeguard to traditional knowledge. Countries such as Hong Kong, Cambodia, Vietnam etc. have separate legislation for the protection of traditional knowledge.4 In India, there is an urgent need to have separate legislation on traditional knowledge as the conventional Intellectual property system is not adequate in safeguarding traditional knowledge. In India, the traditional knowledge is governed by geographical indications, patents, copyright etc.
The Convention on Biological Diversity in 1992 acknowledged the intellectual property value of traditional knowledge. With the implementation of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights, this issue has taken on greater urgency (TRIPs). After the Convention (1989) of the International Labor Organization (ILO) and the Declaration on the Rights of Indigenous Peoples (2007), it became clear that a sui generis legislation was needed to preserve indigenous peoples' knowledge. WIPO members agreed in 2009 to develop an international legal instrument (or instruments) to provide effective protection for traditional knowledge, genetic resources, and traditional cultural expressions (folklore). This was in response to the establishment of an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) in 2000. This instrument might take the shape of a formal treaty binding on nations who ratify it or only a suggestion to WIPO members. The Government of India established the Traditional Knowledge Digital Library (TKDL) in 2001 to house 1200 formulations from several Indian medical systems including Ayurveda, Unani, and Siddha, as well as 1500 Yoga postures (asanas), all of which have been translated into five different languages.
Nevertheless, still, no proper legislation has been formulated by the Indian Government for the protection and sustainment of traditional knowledge.
4 Survey of laws on Traditional Knowledge in South East Asia, report submitted to WIPO on October 2003.
www.wipo.int/tk/en/tk/> accessed October 10, 2022.
EXISTING IPR LAWS
Traditional knowledge comes under the purview of IPR but requires separate laws to govern it. Till date, traditional knowledge is governed by IPR laws such as Geographical Identification Act, Copyright Act, Patents Act etc. However, with time it has been evident that the existing laws have failed to protect and sustain the Traditional knowledge under IPR. Many countries have started to ponder about it and are in the process of formulating laws specifically for Traditional Knowledge.
Section 2(j) of the Patents Act defines a patentable invention as an invention as a new product or process involving an inventive step and capable of industrial application. It is clear that there is a requirement for an invention or process involving an inventive step and traditional knowledge as we know is a knowledge related to something transferred from generation to generation, and hence the scope for a new and inventive step declines.
The Indian Patent Act 1970 does not have any specific section for the infringement of patents. However, Section 48 of the Act gives exclusive rights upon the patentee to exclude the third party from making, importing, using, offering to sale or selling the patented invention. Patents are given for ten years, and after the expiration of the time period, the patent would have to be renewed. Traditional Knowledge passes from generation to generation, and hence it would be highly inconvenient to renew the patent after every ten years.
First of all, patenting Traditional Knowledge is not appropriate and secondly if at all it is patented then there is an absence of proper infringement law, and hence it would not be adequate to protect the traditional knowledge.
More interestingly one can use a community’s traditional knowledge and formulate an invention and claim for patent, and in this case, he would be provided with a patent. As we know, Traditional Knowledge is nothing but a community heritage which is passed on from generation to generation by mainly word of mouth. If the knowledge escapes the community and is used by an entity in the production of a new product, then there is no way in which infringement could be sought.
Among the Kani people, "Jeevani" is a staple of traditional medicine due to its restorative, immunoenhancing, antistress, and anti-fatigue properties derived from the arogyapaacha plant. Traditional medical knowledge among the Kani people is passed down and practised only by tribal healers known as Plathis. Three members of the Kani tribe shared their information with Indian scientists, who used it to produce the medicine Jevaani and submit two patent applications. We could witness that by using the information from a particular community one can quickly develop a product and could have it patented and in this way risks the protection of Traditional Knowledge. This would devoid the community from using their knowledge any further as it would have been patented by some entity and continuing the use of that knowledge would result in sanctions. There are communities which are solely dependent on their Traditional Knowledge for survival, and if it is taken away from them, then it would affect their livelihood.
So in this way, the procedure of patenting does not provide adequate safeguards to Traditional Knowledge.
Most local communities' traditional knowledge (TK) is essential to the development and maintenance of their social and physical environments. The native plants, fungi, animals, and other endemic biological components are the source of this information. Many agricultural and forest products that are marketed globally and have significant economic worth were first discovered, developed, and preserved by traditional civilizations and communities. Accordingly, TK is crucial to the development of international trade. Many plant species can give vital leads for the discovery of novel pharmaceuticals, and the pharmaceutical industry has demonstrated an interest in creating traditional remedies. The native Malagasy plant Catharanthus roseous (Apocynaceae) was the source for the invention of the cancer medications vincristine and vinblastine. TK-inspired innovations may qualify for many forms of legal protection, such as those afforded trade secrets, private information, and patents and trademarks. On the other hand, traditional knowledge is not safeguarded by current intellectual property (IP) laws because of its antiquity and the prevalence of oral transmission. Intellectual Property (IP) rights have been claimed over biological resources and/or traditional knowledge (TK) by modifications of known properties.5
However, there are a few concerns that need to be addressed in order to ensure the survival of traditional forms of knowledge and cultural expression.6 Concerningly, the lives of hundreds of millions of people in traditional communities around the world have recently been put in jeopardy due to the intense interest in indigenous plant use shown by researchers from universities and large industries in order to take out the patents in order to profit financially.7 Although we will be utilising the current patent law system to protect these pioneering chemicals and preserve private rights, we will also be mindful of the interests of conventional knowledge holders who provide a "source" for these patents. Furthermore, the prospect of patent derived goods from traditional treatments provides a major motivation for pharmaceutical businesses, as it produces probable advantages that develop over time and, thus, ultimately, for sharing such information will contribute to the welfare of mankind.8
When attempts have been made to patent information on indigenous plants in some areas where the people have been utilising them for centuries, they have drawn widespread criticism on the grounds that this information is not novel and hence does not merit patent protection. Experiments conducted on the neem tree have resulted in patents being granted. Because to the European Patent Office's (EPO) decision to invalidate a patent on the use of antifungal compounds produced from the neem tree, awareness of biopiracy has increased across the world.9
The use of traditional knowledge for commercial or industrial purposes might prejudice its rightful guardians and increase the risk of theft.
5 Banerjee M. Biopiracy in India: Seed diversity and the scramble for knowledge. Phytomedicine [Internet]. 2019;53(July):296-301. Available from: DOI:10.1016/j.phymed.2018.10.017
6 Van Overwalle; Protecting and sharing biodiversity and traditional knowledge: Holder and user tools, Ecological Economics 53 (2005) 585-607.
7 Tedlock B. Indigenous heritage and Biopiracy in the age of intellectual property rights. Explor J Sci Heal. 2006;2(3):256-259.
8 Xiaoting S. New Problems of Intellectual Property during Innovation of Traditional Chinese Medicine. World Sci Technol [Internet]. 2011;13(3):466-9. Available from: DOI:10.1016/S1876-3553(12)60014-3
9 Hellerer U, Jarayaman KS. Greens persuade Europe to revoke patent on neem tree. Nature. 2000;405(6784):266-267
In light of these threats, it is important to find strategies to preserve and cultivate TK for sustainable growth that respects the rights of those who own traditional knowledge. Communities' TK-based ideas and practises should be protected, shared, and promoted, especially in low-income nations. Health care, food security, culture, religion, identity, climate, trade, and development are all bolstered by their abundance of TK and biodiversity.10
According to the Summary for Policymakers of the 2019 IPBES Global Assessment on Biodiversity and Ecosystem Services:
“Recognizing the knowledge, innovations, practices, institutions and values of Tribal peoples and local communities, and ensuring their inclusion and participation in environmental governance, often enhances their quality of life and the conservation, restoration and sustainable use of nature, which is relevant to broader society. Governance, including customary institutions and management systems and co-management regimes that involve Tribal peoples and local communities, can be an effective way to safeguard nature and its contributions to people by incorporating locally attuned management systems and Tribal and local knowledge. The positive contributions of Tribal peoples and local communities to sustainability can be facilitated through national recognition of land tenure, access and resource rights in accordance with national legislation, the application of free, prior and informed consent, and improved collaboration, fair and equitable sharing of benefits arising from the use, and co-management arrangements with local communities.”11
10 WIPO. Traditional Knowledge and Intellectual Property – Background Brief available from: https://www.wipo.int/pressroom/en/briefs/tk_ip.html
11 Forest Peoples Programme, International Indigenous Forum on Biodivversity, Indigenous Women’s Biodiversity Network, Centres of Distintion on Indigenous and Local Knowledge, Secretariat of the Convention on Biological Diversity. Local Biodiversity Outlooks 2: The contributions of Indigenous Peoples and local communities to the implementation of the Strategic Plan for Biodiversity 2011-2020 [Internet]. 2020. Available from: www.localbiodiversityoutlooks.net
‘Biopiracy’ is “an emergent term used to name illegal or improper appropriation of traditional knowledge and biological materials the fight against biopiracy, the preservation of biodiversity and the need for sustainable practices hence constitute one of the major challenges for the twenty-first century.”12 India's "natural" areas are best characterised by the richness of their biodiversity, which may be both admired and exploited. Biopiracy develops from bioprospecting. According to Vandana Shiva's definition, biopiracy occurs when people use intellectual property rights regimes and patents based on indigenous and traditional knowledge to assert ownership over biological diversity and the goods derived from it.13
Without proper permission and benefit sharing with other nations, Tribal or local groups, patents are issued for (often fictitious) technologies that use harvested biological resources and/or traditional knowledge.14
Other forms of intellectual property control rely on the extraction of biological resources and/or traditional knowledge from populations outside of the originating country (often in a developing country) without necessary consent and benefit-sharing.15
12 Banerjee M. Biopiracy in India: Seed diversity and the scramble for knowledge. Phytomedicine [Internet]. 2019;53(July):296-301. Available from: DOI:10.1016/j.phymed.2018.10.017
13 Shiva V. Recovering biodiversity. Soc Change. 2001;31(1-2):21-37
14 Robinson DF. Biopiracy and the innovations of Indigenous peoples and local communities. Indig Peoples’ Innov Intellect Prop Pathways to Dev. 2012; 77-93
Bioprospecting, which refers to the process of finding and using biological materials for conservation and product development, emerged as a topic of conversation in the late 1980s and early 1990s.16 Bioprospecting is a completely scientific and commercial practise that involves "the search for biodiversity, for important genetic and biochemical information discovered in wild animals, plants, or microbiological organisms" with the goal of developing new products.17 Bioprospecting refers to the search for untapped biological resources with societal or commercial potential. Numerous sectors engage in this activity, with the pharmaceutical sector garnering the most attention. However, many sectors of the agricultural, industrial, technological, architectural, and construction sectors also engage in this activity.18 Natural product discovery for the production of novel crops and treatments is typically grounded in traditional knowledge, and here is where the bioprospecting idea comes in.19 Critics of pharmaceutical bioprospecting point to the practise of "biopiracy," in which multinational pharmaceutical firms utilise indigenous peoples' healing practises without compensation or recognition of the source as a Tribal intellectual property.20
As a result of the growing realisation that new pharmaceuticals will be urgently required in the near future, whether to cure currently incurable diseases afflicting a growing global population or to replace increasingly inefficient treatments, bioprospecting has gained increased attention in recent years. The practise of bioprospecting can have an effect on any sector that relies
(entirely or in part) on the collection, analysis, and/or use of genetic data in order to create marketable goods.21
17 Priya R, Kurian CM. Regulating Access and Protecting Traditional health Knowledge through intellectual property rights? Issues from a holistic health systems perspective. Sci Technol Soc. 2018;23(3):504-529
18 Beattie AJ, Hay M, Magnusson B, de Nys R, Smeathers J, Vincent JFV. Ecology and bioprospecting. Austral Ecol. 2011;36(3):341-356
19 Robinson DF. Biopiracy and the innovations of Indigenous peoples and local communities. Indig Peoples’ Innov Intellect Prop Pathways to Dev. 2012; 77-93
20 Beattie AJ, Hay M, Magnusson B, de Nys R, Smeathers J, Vincent JFV. Ecology and bioprospecting. Austral Ecol. 2011;36(3):341-356
21Resource Manual for Bioprospecting. available from. http://ipbio.org/pdfs/papers/ResourceManual_Oct14_2004.pdf
The Kani model of access and benefit sharing is one bioprospecting success story that has been used to advocate for the equitable distribution of the proceeds from the practise (ABS). The Kani people of the southern Western Ghat area of Kerala State in India employ Trichopus zeylanicus, also known as "Arogyapacha," to combat weariness and stress. According to the Tropical Botanic Garden and Research Institute, the medication Jeevani was developed based on information supplied by this indigenous group (TBGRI). TBGRI has promised the tribal community that it will split the licencing price and royalty it receives from the pharmaceutical company equally. This approach of shared benefits is unique. The commercialization of the Kani people has been challenged, however, because it is unclear whether or not the tribal group was consulted and whether or not the financial gains were distributed fairly. This approach of benefit distribution has been challenged for failing to provide the expected outcomes.22
Furthermore, in a bioprospecting cooperation, multinational firms are typically in a more advantageous position than supplier nations and their Tribal people. It is also widely held that the corporate goodwill of the corporation involved will be the deciding factor in whether or not the company offers any form of acknowledgement or compensation to the harmed Tribal population.
India is wealthy for its communities possessing specific Traditional Knowledge. Due to Lack of safeguards, Knowledge is losing its essence, and the communities are losing their rights. Traditional Knowledge is commercialized as we have seen in the above example of “Jeevani”. Due to commercialization, the knowledge is coming into the public domain and is no more a knowledge restricted to a particular community. The essence of Traditional Knowledge is lost there itself. Due to the lack of projects and methods to sustain the Knowledge, the future generations are not taking an interest in carrying the legacy forward. Due to lack of financial support, they are moving away from their essential practice. Earning a living is a necessity.
22 The Hindu. A benefit-sharing model that did not yield desired results. 2012. available from. https://www.thehindu.com/news/national/A-benefit-sharing-model-that-did-not-yield-desired- results/article12561312.ece
The Koniyak tribe in Nagaland, famously known as the head hunters knew to make permanent tattoos from the horn of cattle. For centuries it has been a practice of their community, but over time, this practice has lost its essence. They also made various artefacts with the horns and bones of animals. Now, they produce limited artefacts due to lack of a market to sell their products. They also produced products made out of bamboo such as baskets, caps etc. However, now only selected people are left who possess this skill. This is due to the lack of support from the government. The government has taken no initiative in protecting their practice as traditional knowledge. Lack of sustainment has resulted in the extinction of much of such traditional knowledge of various communities.
The medicinal values of turmeric are known to us from pre-historical ages, and its record could be found in various Vedas, commentaries, historical documents etc. However, in 1995, two expatriate was granted a patent by US authority for finding out the value of turmeric. This was a result of poor and lack of protection methods to Traditional Knowledge. To avoid these consequences and loss of traditional knowledge and to make them less prone to patenting by the third party, the Traditional Knowledge Data Library (TKDL) was set up in the year 2000. The concerned community is required to file a registration regarding its Traditional Knowledge, and then after verification, it would be recorded in the library. It functions under the TRIPS. If in future, anyone tries to file for a patent on a knowledge registered in TKDL, then he could be restricted. However, there is again no specific formulated process or law for safeguarding the rights. In case of any infringement, there is no proper law to govern the cause. The development of new technology and reformed use of traditional knowledge has been a significant threat to the communities possessing this knowledge. Various companies have The Koniyak tribe in Nagaland, famously known as the head hunters knew to make permanent tattoos from the horn of cattle.initiated commercial exploitation. The backward tribes which hold knowledge are not developed and are miserable. They tend to give away their ideas to corporate giants for a small sum of money, and the company uses the information for its benefit. The companies often deceive the tribal men or fraudulently acquire their knowledge. Due to lack of record of Traditional Knowledge, patents have been granted to false patentees, which has deprived the original community of the right.
Over the past decade or two, there has been a sea change in the intellectual property legal framework. There is a great deal of untapped potential for developing, disseminating, and using traditional knowledge in India, a centre of TK and a country of unique endowment. The term "bioprospecting" refers to the process of investigating the possible profits from using natural therapeutics. Therefore, addressing biopiracy on a worldwide basis is crucial. With the current international institutions and country level legislations in place, we can only hope that Biopiracy will be significantly diminished. All inventions based on traditional knowledge should be fostered for the benefit of humanity within the frameworks of intellectual property rights, and this is the responsibility of governments, non-governmental organisations, corporations, and communities.
Those who will benefit the most from progress should always set the tempo. The rights of all individuals must be safeguarded amidst the ever-increasing complexity of the modern world. Every member of a society must contribute to its development without stepping on anyone else's cultural or racial toes if that civilization is to thrive. In light of the fact that some indigenous communities in the country are disappearing because their members are unable to adapt to the new challenges they face as a result of globalisation and shifting environmental conditions, it is imperative that every possible measure be taken to safeguard the rights of indigenous people. This is especially true for the Andaman and Nicobar Islanders of India, whose numbers are steadily decreasing. The rising notion of Corporate Social Responsibility in this age of globalisation and the free market may become an effective instrument to safeguard, maintain, and advance TK. Business enterprises may volunteer financial and in-kind contributions to help in this area. In monetary form, awards can be given to the elders of the tribe who are the keepers of TK, and in-kind rewards can be given to the young of the tribe by way of financial assistance for the organisation of training workshops and the provision of particular job-oriented incentives. For the benefit of tribal people and their culture, the preservation of traditional knowledge, and to serve the goal of mankind, efforts are needed from all corners of society, notably the policy makers, NGOs, Civil Society Organizations, community members, and all environment lovers.
National policies that protect and safeguard life-sustaining resources in the joint benefit of nature and human society will be guided by a real respect for variety, biodiversity, and
dialogue. By formulating policies and programmes in this way, I believe we may usher in a period of "bioglobalism" that is supportive of free and just social democracies. As a result, it is crucial to record indigenous people's expertise and the part that biodiversity plays in safeguarding their rights. In this regard, the Indian government is exercising the utmost care. In closing, it is important to highlight the 17 February 2015 letter from Dr. Hrusikesh Panda, Secretary, Government of India, Ministry of Tribal Affairs, to the relevant agencies in all States and Union Territories. While many of the indigenous people's healing methods are likely described in Ayurveda, they may not be used very often. For indigenous peoples who have managed to avoid illness while living in isolated places, it is especially possible that they have access to treatments and methods that have not been recorded. The Indian Council of Medical Research (ICMR), the Botanical Survey of India (BSI), the Anthropological Survey of India (ASI), and a few Ayurvedic Institutions have all contributed to this field. However, not only as highly beneficial medical procedures, but also for the purpose of biodiversity and the preservation of our rich legacy, it is imperative that we record these methods.
In 1992, the value and importance of traditional knowledge were realized after the Tribal people came upfront in demand for rights for their Traditional Knowledge. Later WIPO recognized it and in accordance with its terms and conditions, the TKDL was established in India in 2001. However, the creation of a data repository was not sufficient as the issues are yet unsolved. The creation of the repository ensures that the TK of a particular community is registered with the government but does not provide any set parameters to determine that it cannot be infringed and most essentially does not talk about any relief if in case any TK is infringed.
There are certain steps which the government must undertake to ensure that the TK of a community is protected and sustained and does not die with time:
made through TK under its program of ‘Make In India’ and may create a global market for such products. The Honorable Prime Minister has raised the slogan of ‘Vocal for Local’ and under this slogan, the government may promote the production of the products through TK.