PROTECTION OF TRADITIONAL KNOWLEDGE

WHAT IS TRADITIONAL KNOWLEDGE?

Knowledge base which is developed by indigenous, local or native community has been preserved and passed on to generations, so much so, that it becomes the identity of such community. Traditional knowledge can be found in variety of concepts such as calculation of time, food article, plant properties, spice uses, yoga practices etc. The most essential factor of Traditional Knowledge is that it has ancient roots and it is often oral.

TK in a general sense embraces the content of knowledge itself as well as traditional cultural expressions, including distinctive signs and symbols associated with TK.

TK in the narrow sense refers to knowledge as such, in particular the knowledge resulting from intellectual activity in a traditional context, and includes know-how, practices, skills, and innovations.

TRADITIONAL KNOWLEDGE AND INTELLECTUAL PROPERTY

uInnovations based on TK may benefit from patent, trademark, and geographical indication protection, or be protected as a trade secret or confidential information. However, traditional knowledge as such – knowledge that has ancient roots and is often oral – is not protected by conventional intellectual property (IP) systems.

While the policy issues concerning TK are broad and diverse, the IP issues break down into two key themes: Defensive and positive protection.

Defensive protection refers to a set of strategies to ensure that third parties do not gain illegitimate or unfounded IP rights over TK.

Positive protection prevents unauthorized use, commercialization and active exploitation of TK by the originating community itself.

PROTECTION OF TRADITIONAL KNOWLEDGE

The most difficult aspect of traditional knowledge is in its protection. There has been a lot of debate to protect traditional knowledge under IP regime but that in itself faces a lot of challenges such as; a) under which IP under which traditional knowledge can be protected, b) since every IP protection is provided for a limited period of time then how will traditional knowledge have a continuous protection.

Protection of traditional knowledge is rooted in the problem of Bio-piracy. Bio-piracy occurs when there is commercial utilization of traditional knowledge without proper authorization of the indigenous or local people associated with such knowledge. Eg: Turmeric, Neem, Basmati Rice are some of the products have patents in other countries.

ADEQUACY OF IP PROTECTION TO TRADITIONAL KNOWLEDGE IN INDIA

Unlike other categories of intellectual property rights, India has no substantive act or law to protect traditional knowledge but other IP acts contain provisions with respect to traditional knowledge such as the Patents Act, 1970, Section 25 and Section 64, gives one of the grounds for revocation of a patent application on the basis of traditional knowledge.

Under the Copyright Act, 1957, there is no specific mention of protecting traditional cultural, literary or artistic work or folklore but Section 31A provides for protection of unpublished Indian work, nonetheless Copyright protection in for a limited time period and also demands certain criteria to be fulfilled, therefore under this IP as well protection of traditional knowledge doesn’t have much scope.

Past few years it has been seen that India has actively participated in TK conventions and has made efforts to protect its TK at international level. Access to Indian TK is available at USPTO and EPO and CSIR is day by day improving the efficiency of TK database.

TRADITIONAL KNOWLEDGE DIGITAL LIBRARY (TKDL)

India’s TKDL, a collaborative project between the Council of Scientific and Industrial Research (CSIR), and the Department of AYUSH, is a home-grown effort to ensure patent offices around the world do not grant patents for applications founded on India’s wealth of age-old TK.

The TKDL (established in 2001) has an integrated global biopiracy watch system that allows monitoring of patent applications related to Indian medicinal systems. It enables effective detection of attempts to misappropriate this knowledge by third parties filing applications with patent offices around the world. It means that immediate corrective action can be taken, and at zero direct cost, to prevent biopiracy. India is the only country to date to have put such a system in place.

CALL FOR SUI GENERIS PROTECTION AND ITS AWARENESS

There has been an increasing demand of Sui Generis system of Protection for traditional knowledge since IP protection has its own benefits and loopholes. Sui Generis is a Latin word meaning ‘of its own kind’. Sui generis instrument shall provide legal framework of protection of TK, enforcement of right of indigenous communities, prevent misuse and control of TK, provisions of ABS (access and benefit sharing) system etc.

In addition to TKDL system,  India can work towards a more active approach, foremost to create awareness and understanding among people who are till date completely unaware or have very limited knowledge on Intellectual Property Rights as well as the term ‘traditional knowledge’.