The Uncharted Path to Protecting Traditional Knowledge in India

Introduction

Vidya Dadati Vinayam, Vinaya Dadati Paatrataam I

Paatratva Dhanamaapnoti, Dhanaat Dharmam Tatah Sukham II

"True knowledge gives discipline, from discipline arises worthiness, with worthiness one gets wealth, from wealth one does acts of kindness, and from that comes joy."

This decades-old Sanskrit proverb reflects the power of knowledge and the necessity for protection of traditional knowledge, an evolving branch of intellectual property rights (IPR). TK (Traditional Knowledge) was defined by the Secretariat of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) in July 2003:

“Tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields[i].

International and Indian Legal Framework

Global Perspective

The Convention on Biological Diversity (CBD) was the first to acknowledge the importance of TK in 1992[ii] but it did not mandate its protection. The WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) (2000) provided better protection mechanisms concentrating on Traditional Knowledge, Traditional Cultural Expressions, and Genetic Resources while the Nagoya Protocol (2010) introduced benefit-sharing principles internationally. Few countries like Peru, Brazil, New Zealand, and Spain have adopted sui generis laws to protect their traditional knowledge and biodiversity. Peru is one of the countries to protect the collective knowledge of its indigenous people through a specific law, Law 27, 811/2002[iii]. Brazil is home to around 1.6 million indigenous people and has adopted Provisional Measure 2.186 16/2001 and National Policy on Traditional Knowledge to emphasize the protection of TK.[iv]

Indian Perspective

India, with approximately 104 million indigenous people is flourishing in agricultural biodiversity, traditional and indigenous knowledge. Certain protective provisions have been incorporated in the Biodiversity Act, 2002, in recognition of the need to ensure that the owners of TK should be allowed to reap the advantages of using such knowledge and it is also dealt indirectly by the Patents Act, 1970.

Establishment of Traditional Knowledge Digital Library (TKDL)

India is the first country to create a 34 million pages database surpassing the language barrier by systematically organising the Indian system of medicines into 5 International languages namely English, Japanese, French, German, and Spanish.[v] The notion to create a TKDL emerged during India's attempts to revoke the patents issued by the United States Patent and Trademark Office (USPTO) on the wound healing properties of turmeric and by the European Patent Office (EPO) on the antifungal qualities of neem. The turmeric case and neem case highlighted the importance of systematically documenting traditional knowledge to provide evidence against biopiracy and wrongful patent claims.[vi] India's TKDL, a joint venture between the Council of Scientific and Industrial Research (CSIR) and the Department of AYUSH, is a national initiative to ensure that patent offices across the world do not grant patents for applications based on India's treasure of TK[vii].

Challenges regarding Protection of Traditional Knowledge

• Method: There is no uniformity on the method of protection of TK. Some people comprehend it in the context of IPR, where it means to prevent its unauthorized use. Whereas some might perceive it as a tool to preserve cultural heritage.
• Identification difficulty: In most cases, traditional knowledge is held collectively and passed down orally from generation to generation, making it quite difficult to establish its existence.
• Absence of legal recognition: TK is frequently neither recognised nor protected by the current IP laws, leaving indigenous people vulnerable to unfair exploitation.
• Harmonising cultural values and economic development: It can be burdensome to decide who has the right to regulate and profit from the use of TK because there is a conflict between preserving it as a cultural heritage and using it for commercialisation.
• Insufficient benefit-sharing systems: It is difficult to guarantee that indigenous groups will obtain fair and equal benefits from the utilisation of their TK due to the lack of efficient benefit-sharing systems.
• Ownership: As a general rule intellectual properties are privatized by individuals or even businesses or associations, while TK is owned collectively. It will be quite an impossible feat to grant protection title to larger communities.
• Indefinite subject matter: The subject matter of TK includes but is not limited to medicines, plant varieties, biodiversity, craftmanship, agricultural practices, and dance forms. The protection granting authority will always have to decide it on case-to-case basis without having any reference at all or too many references at a time.
• Biopiracy: Biopiracy is the illegal acquiring of unrestricted access to biological resources and their commercial exploitation, as well as the acquisition of exclusive monopoly rights over biological resources or indigenous knowledge that belong to a group of people, a place, or a nation. Misappropriation of TK and biopiracy of genetic resources is always a threat to many countries and indigenous communities.
• Loopholes in the Traditional Bill, 2022: The Protection of Traditional Knowledge Bill, 2022 (Traditional Knowledge Bill), presented in the Lok Sabha on April 1 by Shashi Tharoor, stipulates that traditional knowledge (TK) is beyond the realm of a patent or intellectual property regime[viii]. However, it fails to clearly specify ownership, structured benefit-sharing mechanisms, strong enforcement, community participation, and appellate authority, leaving it vulnerable to disputes and exploitation. Weak penalties and lack of extraterritorial jurisdiction further limit the effectiveness of this bill.

Proposed Solutions

• Legislative reforms: The bill must establish well-defined ownership guidelines, develop a transparent model for benefit-sharing, make stricter penalties, and extraterritorial reach. It must inculcate provisions that strengthen communities’ representation, set up a dispute resolution mechanism, and a specific Traditional Knowledge Tribunal.
• Technological Ministrations: Blockchain-technology can be used to maintain TK databases and registries to ensure transparent ownership. Moreover, AI-driven patent surveillance can be leveraged to trace unauthorized exploitation of TK globally.
• Multi-disciplinary Collaborations: Partnerships between indigenous communities and Private entities could be encouraged through legal means to inculcate TK into industries while ensuring fair compensation.
• Enhance transparency: Mandating free, prior, and informed consent from the indigenous communities and making stricter disclosure requirements in patent applications and benefit-sharing agreements.

The power of traditional knowledge to address modern-day problems of humanity is considerable. The compelling need for safeguarding traditional knowledge (TK) from abuse or misappropriation generates complex policy issues as well as practical difficulties. The value of using this information for its worth must be balanced with security, promotion, and sharing of benefits. With the establishment of the TKDL, India has advanced and proved to the world that protective measures can be put forward to curtail the exploitation of traditional knowledge with the help of policy adaptations. However, it needs to integrate these efforts with technological, economical, and legal mechanisms for the complete protection of TK. India can grasp the opportunity to set a global touchstone by adopting a technology-oriented legal policy and framework and encourage participation of indigenous communities. A multifaceted strategy will be the crucial factor in preserving TK for future generations.

Keywords

Traditional Knowledge (TK), Indigenous communities’ rights, Protection of TK, Traditional Knowledge Digital Library (TKDL), Biodiversity and Biopiracy

References

https://www.wipo.int/tk/en/tk/

http://seed.agron.ntu.edu.tw/publication/TK-Finland2004.pdf

https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2019/04/Traditional-Knowledge-backgrounder-FINAL.pdf

https://cnlu.ac.in/wp-content/uploads/2022/08/10-Riya.pdf