This article is written by Ananya Dutta, 2nd Year, Institute of Law, Nirma University, Ahmedabad.
Being armed with historical knowledge is a critical requirement in today’s world. This information, which appears to be inherent in human nature, has been gained via centuries of -experience, applications, and skill developed and executed by indigenous peoples of diverse societies and is now often referred to as Traditional Knowledge (TK).
TK is typically unwritten and passed down for generations via word of mouth. It forms a part of a particular region’s cultural, social or spiritual identity which resonates with the urgent need to protect the same from being commercially exploited with no prior permission.
TK can be attributed to in a diverse range of contexts like-agricultural, scientific, technical, ecological and medicinal knowledge as well as any biodiversity-related knowledge. With TK the real trouble lies in the fact that most of the people belonging to indigenous communities, residing in different parts of India do not feel empowered enough to protect their TK or derive any benefits from their own legacy when it is commercially exploited. This problem is termed as biopiracy.
For the sake of equal benefit sharing, it is of utmost importance that any exploitation must be coupled with preservation, protection and promotion of TK. It is this issue the author attempts to discuss below.
Developing countries like India have all the more reasons to ensure maximum preservation and protection of rich knowledge of TK and biodiversity among the local communities. This is so because TK plays a significant role in areas of health care, food protection, climate and trade leading to an overall development which is precariously threatened when this valuable asset is commercially exploited without a proper authority of the local communities and indigenous people related to the same.
In India, 65% of the population in the rural areas uses Ayurveda and medicinal plants to help meet their primary health care needs. This is just one of the many ways TK is of immense relevance in India. It was after the Neem Patent Controversy that the need to protect the TK of India gained impetus. India has adopted a Defensive mechanism meaning, steps taken to prevent the acquisition of intellectual property rights over traditional knowledge. One such step being establishing a Traditional Knowledge Digital Library (TKDL) in 2001, to assist the examiners of Patent Offices to search for information regarding any substance or practice while granting patents, so they can dismiss such application, if it is discovered to be already present in India as TK. It solves the issues of providing the information on TK existing in the country, in foreign languages and format understandable by the patent examiners at International Patent Offices, since most of the TK existing in India comes in ancient classical or other literature.
However, it comes with its own set of challenges in terms of the fact that, it lacks record of oral TK and that such documentation itself could lead to the misappropriation of India’s TK as public disclosure of entire TK can lead to unwanted investigations to find more of such TK. Hence, there is a need for alternate means to protect TK, which have been brought forward but lack in effective implementation and there is a pressing need to examine their loopholes and to fix them.
Current Legal Analysis on TK
The most sought after means in India, to protect TK has been through Intellectual Property Laws (hereinafter IP Laws). Given the absence of a substantive act or law to protect TK, India has to rely heavily on IP to protect its TK. IP acts contain certain provisions with respect to traditional knowledge some of them being- The Patents Act, 1970, Section 25 which talks about the opposition of patent and Section 65 which, in cases related to atomic energy, deals with the revocation or amendment of complete specification on directions from the Government of India. Likewise, The Copyright Act of 1957, has no specific provision for protecting the traditional cultural, literary or artistic work or folklore but Section 31A seeks to protect unpublished Indian work. None of these Acts directly extend their branches to protect TK in India.
The above-mentioned remedies fall short of protecting TK in India due to various reasons. For instance, although The Indian Copyright Act protects the work of the author but the real issue lies in the fact that sometimes there is no single author in TK. TK is passed from generation to generation and tracing its original author becomes difficult; if not impossible.
Secondly, the protection offered by the Indian Copyright Act, 1957 (Section 23) lasts only for a period of 60 years. This is not enough for TK which plays a significant role in creating a self-reliant society and fostering sustainable development, among other things and deserves perpetual protection.
Another problem lies in the fact that the TK is not fixed and is often in a verbal form which skips the ambit of the Indian Copyright Act, 1957. The Indian Patent Act also brings forth the truth that India, in practical aspects, is not ready to incorporate the concept of TK in the existing IP regime, since it refuses to accept the communal rights over TK, which could be a possible solution to the ownership issue.
TK can be said to be the newest member in the IP family and linking this traditional system of knowledge with a new and reformed IP regime is of utmost relevance. Due care needs to be exercised in addressing the above-mentioned issues so that the immense potential of TK in fostering sustainable development is not compromised.
A Way Forward- Sui Generis
Given the aforementioned flaws in the present IP regime, there is a growing necessity for the deployment of a Sui Generis system of law to safeguard TK across the world. Sui Generis literally means “of its own sort.” It is a reformed IP system in which national-level processes and legislative provisions may be tailored to the needs of the community in question.
A Sui-generis system creates legal rights that acknowledge any traditional knowledge related to genetic resources, for example, and encourage access and benefit sharing. In the creative form not presently defined in intellectual property law, the government can opt to extend protections to genetic resources and TK to a community. In solving some issues in the IP system, a licensee is obliged to share, for a period of time, the advantages of TK by opening vast pathways in different fields, such as the recognition of the rights of community over property and granting a monopoly for an indeterminate duration.
India has also taken this route by passing Sui-generis laws such as, ‘The Biological Diversity Act, 2002’ and ‘The Protection of Plant Varieties and Farmers Rights Act, 2001’ with their common Policy objectives being conservation., sustainable use of its components and just and equitable sharing of the benefits arising out of these resources.
TK Protection Global Recommendations
In order to ensure an enhanced and all-round protection of TK in India we must look into the global scenario regarding the same. Their best mechanisms can be diligently used to enhance ours to achieve the same.
- Australian Scenario-
An Australian Court presented a rare exhibition of sensitivity of the court in attempting to recognize the rights of the indigenous communities within the fold of the prevailing regime in the case of Foster v. Montford, the Supreme Court of the Northern Territory of Australia banned a book (Nomads of the Desert) on the grounds that it consisted of materials relating to the aboriginal group’s sacred knowledge revealed to the author by tribal leaders before thirty five years had passed. Even in the absence of a confidentiality agreement, the court chose to actively protect the culture of the clan, and held that the publication amounted to a breach of confidence.
Thailand passed two bills. One by the Ministry of Agriculture and Cooperatives, and the other by the Ministry of Commerce with the object of protecting the exclusive rights of new plant varieties. Both the Bills were opposed by the farmers’ lobby, as there was no provision for benefit sharing. The Government, as a response, appointed a Committee, which included farmers for drafting the Plant Variety Protection Bill. They combined the two bills into one; following the sui generis option of Article 27.3 of TRIPS and ultimately allowing the possibility of including farmers’ privilege in it.
- Philippines –
The Philippines was the first nation to legislate (Indigenous Peoples’ Rights Act, 1997) to “protect and promote the rights of indigenous cultural committees/indigenous people.” The Act recognizes “community property” (something that India lacks) and mandates that the state shall set up necessary mechanisms to protect the culture and identity of the indigenous people.
Africa came up with The African Charter on Human and Peoples’ Rights (African Charter or Charter) which is a human rights-based approach to protect the TK through which the African Charter provides for rights that seek to protect and promote the rights of the holders such traditional knowledge. This approach has been widely neglected by other countries so far, but India should explore more into this.
Even though most countries till this date do not have adequate mechanisms to protect TK, there is still scope for India to take notes from the different prevailing methods of protecting TK and build a more robust mechanism for itself.