India is a place where traditional knowledge is present in abundance and it is the need of the hour to protect the rights of local people who shed their blood and sweat to make and protect it. Big companies and multinational companies are trying continuously to exploit the local people to earn huge profits. The rights guaranteed by the IP system are not much in use. The companies and private individual have only their right under the IP system. Collective rights are absent in the community. Traditional Knowledge is created by the indigenous people living in a particular society. These consist of medicines, art, songs, folklore, recipes, etc. There is a threat of misappropriation of this traditional knowledge by the term called biopiracy. In layman’s language, it is called theft. These protections become important because having our own TK shows how a country is rich in its culture and medical purposes.

Keywords – Traditional Knowledge (TK), Indigenous people, IPR, Biopiracy, Patent

Introduction

Intellectual Property right (IPR) is the legal provision given to an innovator for his inventions and which makes his invention unique from other inventions. It generally gives the exclusive right over the use of his/her creation for a specific period. This protection includes – Patents, copyrights, trademarks, and trade secrets.

Traditional Knowledge is the term derived from the indigenous people and possessed by these people, in one or more than one society, in one or more than one form, including anything but not limited to certain things like medicine, folk remedies, songs, poems, story, art, music, etc. This knowledge is collective and people hold equal rights over the knowledge as their birthright. This knowledge is written or orally communicated from generation to generation. Traditional knowledge is the knowledge that people living in the community make with the help of their experience and adaptation to the local culture, which has developed over time and still developing with time. This knowledge is used to hold the community and its culture and to maintain genetic resources necessary for the continued survival of the community. Traditional knowledge constitutes the wisdom, knowledge, and teachings of the community. It may be passed written or orally to the generations. This also includes practices and technology such as seed treatment, storage methods, and tools for planting and harvesting. Traditional knowledge has a belief system that encompasses the fundamental role of keeping people’s health safe, their livelihood, and saving and replenishing the environment. According to article 8(j) of the CBD convention[1], each contracting party subject to its national legislation is required to respect, preserve, and maintain knowledge, innovations, and practices of indigenous and local communities tangible or visible lifestyles relevant to conservation and sustainable use of Biological resources and promote the wider application of such knowledge, innovations, and practices with the approval and involvement of their holders and also encourage the equitable sharing of benefits arising from the utilization of such knowledge, innovations, and practices.[2]

Indigenous intellectual property pertains to the information regarding the practices, beliefs, and philosophy that are unique and different to each indigenous group. Hypothetically when traditional or indigenous knowledge is snatched from the group or community then the whole community loses its control over how that knowledge is used. In the majority of the cases, the knowledge is unique and different to each other community. Indigenous people have the right to protect their traditional knowledge from exploitation or inappropriate use. “Intellectual Property” is a generic term that probably came into regular use during the twentieth century. This generic term is used to refer to a group of legal regimes, each of which, to different degrees, confers rights of ownership in a particular subject matter.[3] The subject matter of early intellectual property is the Invention, literary works, artistic works, design, and trademarks. Intellectual property is ever-expanding despite of its early historical links to the idea of monopoly and privilege.

From the perspective of India’s scenario; it has plenty of traditional knowledge of the properties and uses of biological assets because of its distinctive biodiversity and natural bounty.[4] Indigenous knowledge is an important fuel in conquering sustainable growth. It is always been full of resources that can be easily misappropriated. The domain of traditional knowledge is quite enormous in itself, it includes the information related to different groups, such as knowledge of plants and animal and their properties; minerals and soils and their properties; organic and inorganic combinations, folklore expression in the form of the poem, story, art, and music. All the traditional knowledge that was created by our ancestors is enhanced and preserved from posterity to posterity. The demand for the defense of traditional knowledge has gained momentum over time. This is because of the introduction of the traditional IPR system or through a modern sui generis system.

Research Methodology

This paper is of descriptive and the research is based on secondary sources for the deep analysis of the IPR and Traditional Knowledge. Secondary sources of information like online newspapers, journals, websites, pdf, and blogs for the research.

Review of Literature

This part covers journals, articles, websites/blogs, and newspapers.

Ishita Chatterjee in her journal –Intellectual Property Right and Tradition Knowledge – Indian Perspective has briefly explained the meaning of Traditional knowledge. She also discussed the methods to protect the TK and the limitation of the IP system in granting patents.

Saumya Verma in her journal – SAFEGUARDING TRADITIONAL KNOWLEDGE WITHIN THE EXISTING INTELLECTUAL PROPERTY RIGHTS FRAMEWORK: AN OVERVIEW stated the legal provision for biopiracy. Its journal also explained the definition of intellectual property rights and concluded the article in a very suggestive and crisp manner.

The Neem Foundation website provided the real use of neem and its scientific name. It also descriptively explained the neem patent case.

CRITERIA TO QUALIFY THE TRADITIONAL KNOWLEDGE

Traditional knowledge is defined as the knowledge that has been gathered by our ancestors and is carried from posterity to posterity. It also takes into account the expansion of knowledge with the development of society from time to time. This development serves as an extension to the current knowledge and it shapes the current perspective of the people. This can be noted from the above context that traditional knowledge consists of the following points-

Development of the new feature to existing knowledge for fulfilling the need.
Transmission of knowledge from posterity to posterity with the help of custom.
The transmission of knowledge should be restricted to a particular group or community.

For instance, Neem which we are aware of its advantages has been used since 2000 years ago and now also it is useful in various parts of our day-to-day life like in medicine or veterinary, toiletries, and cosmetics. It is also used in insecticides and pesticides.

Possible Reasons for the Protection of Traditional Knowledge in India

Around one-third of countries in the world are incapable of protecting the Traditional Knowledge. Few of countries became aware of their TK because of the advancement of the scientific temperament in the West. The majority of the traditional knowledge in the world is undocumented and, in some aspects, India falls into that list. This was meant as an aid for the oral living tradition. In any case, the early documents were not created to withstand the scrutiny of modern-day patent attorneys. Nations are open to plead their cases in the domestic court of another nation under the law laid down by their latter nations.

Another concern for India is that due to growing globalization the threat of the appropriation of the element of the collective TK of societies into proprietary knowledge for the commercial profit for the few. We need a scrutiny focus on the TK of the communities. To motivate communities, it is necessary to scout, support, spawn, and scale the development of green grass innovation within the territory. Apart from this India is one of the countries where traditional knowledge resides in a huge amount about the plant resources.

One more cause for the protection of indigenous knowledge is for the consideration of equity. In several instruments of the protection of traditional knowledge, the basic idea lies upon equity contemplation. Traditional knowledge has an enormous amount of value which is not sufficiently remunerated and acknowledged. So, it becomes an important task to protect the interests of the undeserved and unequal ties. Earlier the farmers preserve the inherited assets from the plant and use them. These farmers generally make use of the inherited assent of the plant or trade these through a barter system for the dispersion and the growing of these assets within several territories. The main discussion of these is that; big companies do not share their profits with the local farmers and earn a bulk amount of the profit from the hard work of others and this creates the demotivation within the local farmers to create or preserve the traditional knowledge.

Another aspect of the protection of traditional knowledge is the preservation of traditional lifestyle. The people see security mechanisms as the tool for the preservation of the traditional lifestyle. The meaning of security is very different from the meaning that we generally apply under IPR. The important element of the right to self – identification for the continual survival of the local and traditional culture. According to some reports, the tragedy affecting the world’s cultural lifestyle is much larger than the biodiversity tragedy.

The issue of biopiracy is not the stuff for ignorance. Biopiracy simply means the misappropriation of Traditional knowledge. As a way of harmonizing the TRIPPS agreement[5] with the CBD, the government of India has advised that the clause to be inserted into the agreement establishing the patents inconsistent with Article 15 of the CBD[6] should not be issued. Improvising the patent information at the patent office will lead to the reduction of the granting of the patents unduly which covers the TK.

The promotion of traditional knowledge is very commendable in itself. Protecting TK from the misappropriation, or offering reimbursement to TK holders can be helpful to excite the wider use of such information. The fundamental reason for the protection of TK is to maintain sustainable growth. Legal security can be the reason for the exploitation of products and services based on traditional knowledge. This knowledge can be vital for the growth and innovation within the local communities. This is necessary for the local culture to be rebuilt.

Issues with the Protection of the Indigenous Knowledge

Biopiracy is the term means that the misappropriation of traditional knowledge by a third party for their benefit. In the present scenario, the developed countries are taking the undue advantage of the traditional knowledge in the developing countries for their benefit. The term ‘biopiracy’ denotes the wrongful application of traditional knowledge or the patent of biological products. In layman’s words, it is called the theft. According to the most recent edition of the Draft Treaty which was sent to the Committee at its 39th Session on 22 March 2019, and amended between 17 and 21 June 2019, Biopiracy means “Access or usage; Without free, prior and informed consent or consent and participation and, where relevant, without mutually acceptable terms, in violation of customary law and existing procedures regulating the entry or use of such traditional knowledge or abuse.”[7]

Secondly, the laws that address the Biopiracy are inadequate. There is no specific provision to protect the traditional knowledge in the TRIPPS agreement which leads to exploitation by the big companies. There is the absence of a concept in which prior consent is to be taken before using the TK. In the age of Intellectual Property Rights, only private rights are secured and no one talks about the protection of the collective rights of the community. When the Patent is granted to a specific TK, then its price hikes make it impossible for the local people to take advantage of the TK.

Threats posed by Bio Piracy

There is a need to protect the TK by legally recognizing the rights of TK holders which are indigenous people and local tribes. This is because they are protecting genetic resources and biological diversity by adopting sustainable methods. In order the innovate the measures to protect the TK we need to understand the challenges posed by biopiracy. Biopiracy involves the unauthorized acquisition of know-how, skills, and innovations from local or indigenous communities, encompassing their sustainable methods for safeguarding biological diversity. Large multinational companies extend their patent to this know–how which are not been documented anywhere and thus it leads to the violation of IPR. The person who got the patent unethically and getting benefits out of it is called unethically obtaining a patent.

Some case studies of Bio Piracy

The Neem Patent Case

The neem tree (Azadirachta indica) originates from the Indian subcontinent and now grows in the dry regions of more than 50 tropical countries around the world. The neem tree has multiple uses. It is mentioned in Indian texts written over 2000 years ago and has been used for centuries by local communities in agriculture as an insect and pest repellent, in human and veterinary medicine, toiletries, and cosmetics. It is also venerated in the culture, religions, and literature of the region.[8] This case was filed by the W.R. and the Department of Agriculture, USA in the European Patent Office. This patent was given to the Neem Oil Foundation which is responsible for the protection of fungi on plants. In opposition, the case was filed by the Indian New Delhi-based Research Foundation for Science and Ecology and Technology in collaboration with the International Federation of Organic Agriculture Movements and Magda Aelovet, the former green member of the European Parliament. [9] It is obvious to note that the benefit of the neem tree is pertinent in Indian medical history. It has been used in the Indian subcontinent from time immemorial as a disinfectant and astringent. Its bark, leaf, flower, and seed have been used in India for the treatment of leprosy, diabetes, skin disorders, ulcers, etc. Accordingly, India showed the ancient script about neem has medicinal benefits and having powerful antiseptic properties, and disease-preventing qualities. The European patent office noticed the lack of novelty and constructive steps in the US stance thus revoking the US claim to obtain the patent for the benefits of the neem tree.

The Turmeric Case

In 1995, the University of Mississippi Medical Centre obtained the patent for turmeric for its wound-healing properties. It was contended that the wound-healing properties of turmeric were developed by American researchers. In opposition India through CSSIR filed the plea to re-examination of the patent. It was contended that the benefits of turmeric are mentioned in the Sanskrit textbooks and papers published in the Journal of Indian Medical Association in 1953. India argued that the uses of turmeric and its benefits have been known to India for long ages and it has multipurpose healing properties. It can be used during a fever or cold. It has cosmetic benefits. There were 32 references to support the Indian claim and as a result, the USPTO revoked the patent granted to the University of Mississippi.

The Basmati Rice Case

Rice Tec patented the Basmati Rice variety for the following three things; growing rice plants with certain characteristics identical to Basmati, method of Selecting rice based on the Starch index test devised by it, and grain produced by such rice patent.[10] This patent was challenged in India based on that it was the staple crop in India. It was also contended that the granting of the patent was not a novelty and no productive steps were taken to grant the patent. India filed the case regarding the re-examination of the patent granted to Rice Tec. Finally, after the 3 years of legal battle, USPTO accepted the petition for the re–examination of the patent granted to the RiceTec company.

Limitation of IP

There are two main concerns regarding the protection and commercialization of Traditional Knowledge in India using Intellectual Property Rights. The current IP system only protects individual innovations and IPRs but does not include the protection of the collective rights of the community at large or in those areas where collective rights are recognized under the IP system, the people are not aware of their rights. As a result, both India and International TK are not protected under the IP system. However, the IP system has been protecting TK using geographical indication in areas of wines and spirits exceedingly well.[11]

International and National Framework for Protecting Traditional Knowledge

1. International Framework for the protection of traditional knowledge

World Intellectual Property Organisation (WIPO)[12] – WIPO started working for the protection of traditional knowledge in 1978. This has developed the sui generis model with the USESCO aiming for the protection of Folklore.It has also built the fact founding mechanism for 28 countries in Intellectual Property and Traditional Knowledge. It has embodied the genetic resource contract in numerous documents which can be depicted as it has extended the protection of TK by documented TK.
The United Nations Conference on Trade and Development (UNCTAD) (1964)[13]

(UNCTAD) contain the provision of exchange of the national policy measure for protecting traditional knowledge on trade. It has promoted the usage of traditional knowledge for the sake of sustainable growth.

Convention on Biological Diversity[14] – Article 8(j) of the CBD affirms that indigenous/local tribes have the right to be protected for their inventions same as big private companies or multinational companies get the IPR for their innovation. The government must protect the rights of local people for their innovation by implementing stringent laws that are dedicatedly designed for the protection of traditional knowledge. This also includes that prior permission should be taken from the local/indigenous people of their innovation before using it.

2. National Regime for the protection of the Traditional knowledge

The Biological Diversity Act (2002)[15]– This act addresses access to biological resources and associated indigenous knowledge by third parties that include foreign individuals, multinational companies, etc. Prior approval is required from the National Biodiversity Authority for carrying out the research work with biological resources or associated traditional knowledge. By the line of rules No. 20 and 21 of the Subject Act; sharing of the benefits is mandatory and is granted after commercialization of the traditional knowledge.
The Protection of Plant Varieties and Farmer’s Rights (PPVFR) – It originated from the UPOV model developed in 1991. This laid down the sui generis method for the protection of TK of farmers who developed new plant varieties. As per the PPVFR Act 2001 and PPVFR rules 2003, plant breeder’s rights and farmer’s rights are secured for the new plant variety developed by them registering the new varieties.
The Patent Amendment Act 2005

In 2005 India incorporated the patent act in consonance with WTO TRIPS where India has the power to reject the patent. This act states that the person before the expiration of one year from the publication of the patent may write opposition to the patent controller on specific grounds.

Ways to Combat Biopiracy

It is not easy to say that one solution can be helpful to combat the issues like biopiracy. The legal provisions that are provided are only preventive. The hike in the number of cases related to biopiracy resulted in the need for laying down new forms of stringent laws for the protection of traditional knowledge. The stringent laws should pertain to the huge penalties that are imposed for breaking the rights of indigenous people. The National Biodiversity Board needs to collaborate more with state authorities concerning patent rules and regulations for the sake of the protection of the rights of traditional knowledge. There is a need to maintain the register in which all cases related to biopiracy are maintained. This is very important because most of the biopiracy goes unnoticed. In this era, where TRIPPS has strengthened IP rights, thus protecting the rights of TK holders. This would be possible by not only enacting the international conventions but also from a national effort by imbibing international guidelines from their laws.

Suggestions to Ensure Effective Protection of Traditional Knowledge

National and International frameworks should be developed and should be used in the current IP system this is to ensure lawful rights to use hereditary resources and conventional proficiency.
Preserving and enhancing the elasticity within the international framework and fostering reconciliation is crucial for developing and implementing positive and protective safeguard measures to protect TK.
Huge and successful involvement in the discussions related to TK of Indigenous people.
There should be recognition of location-specific products developed by the local people under the Geographical Indication Act and Trademark Act.

Conclusion

After considering the various aspects of Traditional Knowledge, TK is indeed very crucial for the country’s backbone. It is also a rich resource from which a country harnesses huge prosperity. It becomes very important to maintain the balance between the rights of indigenous people and the benefits arising from the commercializations of TK. In the scenario of India, the vast growing need of the people and limited investment in the area of indigenous knowledge made it a dormant gold mine. Without ignoring that India has loads of traditional knowledge and there are several laws dealing with biopiracy it is the need of the hour for making more stringent laws so that no one dares to think about stealing the concept of TK. IP should not be limited to a private individual and multinational but also should be there collectively to a larger community. There has to be the protection of folklore, art, and music from being copyrighted.

This research has been carried out by a scholar – Sumit Chaudhary from Chanakya National Law University, Patna.

[1] Convention of Biological Diversity, https://www.cbd.int/traditional/ (14^th Dec, 2023)

[2] Saumya Verma, SAFEGUARDING TRADITIONAL KNOWLEDGE WITHIN THE EXISTING INTELLECTUAL PROPERTY RIGHTS FRAMEWORK: AN OVERVIEW, 5 IJLLR, 3773, 3776 (2023)

[3] Michael C. Ogwezzy, PROTECTION OF INDIGENOUS OR TRADITIONAL KNOWLEDGE UNDER INTELLECTUAL PROPERTY LAWS: AN EXAMINATION OF THE EFFICACY OF COPYRIGHT LAW, TRADE SECRET AND SUI GENERIS RIGHTS, 12 ICLR 7, 8 (2016)

[4] Riya, PROTECTION OF TRADITIONAL KNOWLEDGE UNDER INTELLECTUAL PROPERTY RIGHTS REGIME, 1 E-JAIRIPA 149, 151 (2020)

[5] World Trade Organization, https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm (14th Dec, 2023)

[6] Convention on Biological Diversity, https://www.cbd.int/convention/articles/?a=cbd-15 (14^th Dec, 2023)

[7] Saumya Verma, SAFEGUARDING TRADITIONAL KNOWLEDGE WITHIN THE EXISTING INTELLECTUAL PROPERTY RIGHTS FRAMEWORK: AN OVERVIEW, 5 IJLLR, 3773, 3777 (2023)

[8] Neem Foundation, https://neemfoundation.org/ (14^th Dec, 2023)

[9] Times of India, https://timesofindia.indiatimes.com/ (14^th Dec, 2023)

[10] IP Leader, https://blog.ipleaders.in/basmati-rice-patent-battle-indigenous-knowledge-patented-profit/ (14^th Dec, 2023)

[11] Manupatra, Microsoft Word – IPR and Traditional Knowledge.doc (manupatra.com) (15^th Dec, 2023)

[12] WIPO, https://www.wipo.int/portal/en/index.html (15th Dec, 2023)

[13] UNCTAD, https://unctad.org/about (15th Dec, 2023)

[14] Convention on Biological Diversity, https://www.cbd.int/traditional/ (15^th Dec, 2023)

[15] India Code, https://www.indiacode.nic.in/handle/123456789/2046?sam_handle=123456789/1362 (15th Dec, 2023)