ABSTRACT
The growing importance of indigenous communities’ traditional knowledge (TK), both in terms of economic value and role in biodiversity conservation, has led to multinational corporations and research organisations using this knowledge for commercial purposes without adequate compensation. Numerous cases of biopiracy have brought this issue to light, leading calls for the protection of TK against such abuse. As a result, several biodiversity-rich countries have devised and implemented a variety of preservation measures. This paper examines various worldwide biopiracy instances to highlight the need of protecting TK. It investigates several techniques to creating a protective framework and contends that depending exclusively on traditional intellectual property rights (IPRs) is insufficient. Instead, it suggests a multifaceted strategy that includes a variety of legal, non-legal, and voluntary measures. This approach extends beyond IPRs and incorporates sui generis systems that can be effortlessly incorporated into national legal frameworks while also satisfying indigenous groups’ special needs.
KEYWORDS: Traditional knowledge, Indigenous people, Biopiracy, IPR
INTRODUCTION
Discussions about the importance of indigenous groups’ traditional knowledge (TK) have gained prominence in recent years. These debates have centred on its importance in both the economy and the preservation of biodiversity, as well as the need to protect it from commercial exploitation. These concerns have become hotly debated in international organisations such as the Convention on Biological Diversity, the World Trade Organisation, and the World Intellectual Property Organisation. The rising recognition of the significant economic potential contained in this knowledge has prompted various multinational firms from developed countries to capitalise on developing countries’ genetic resources, traditional knowledge, and technology. As a result, developing countries feel resentful of the phenomena known as “biopiracy”, in which their natural resources are plundered without proper remuneration.
Concerns have arisen in developing nations, who are guardians of a significant percentage of the world’s biological variety, as the number of patents protecting items produced from genetic resources continues to climb. These issues go beyond the simple misuse of innovations related with these resources to include the intangible knowledge associated with them. This information is frequently derived from local and indigenous populations, which have not only maintained biodiversity but also nurtured and safeguarded a body of related traditional knowledge (TK) via years of observation, practises, and customary usage. However, in many situations, the advantages of commercial exploitation of these resources do not reach the people that gave this knowledge. While there is a rising recognition of the need of protecting indigenous people’ rights, there is also a growing realisation that traditional intellectual property rights (IPR) regimes based on concepts of individual ownership may not be enough for this purpose. As a result, an increasing number of biodiversity-rich nations and indigenous communities are recognising the importance of this problem and taking measures to build legal and non-legal systems to protect their traditional knowledge base.[1]
METHOD
TRADITIONAL KNOWLEDGE
Traditional knowledge, according to the Convention on Biological Diversity, includes the ideas, inventions, and practises of local and indigenous cultures worldwide. This knowledge is derived from millennia of experience and is finely tailored to the unique cultural and environmental situation. It is often passed down orally from generation to generation and is kept jointly throughout communities. Stories, music, folklore, proverbs, cultural values, beliefs, conventions, community norms, local languages, and agricultural practises, which include the cultivation of plant species and animal breeding, are all examples of traditional knowledge. For many years, traditional knowledge has been transmitted through teaching, singing, dance, artistic depiction, storytelling, and performance. It is generally used for practical applications, most notably in agriculture, fishing, safety practises, horticulture, forestry, and overall environmental management.[2]
Traditional knowledge is defined by the World Intellectual Property Organisation (WIPO) as collective knowledge, skills, practises, and expertise that grow, endure, and are passed down from generation to generation within a community. This information is frequently essential to a community’s cultural or spiritual identity. While there is no commonly recognised definition of traditional knowledge, it can be classified into two categories:
- Traditional knowledge, in a wide sense, includes both the content of the information and the cultural manifestations connected with it. This comprises distinctive signs and symbols associated with traditional knowledge.
- Traditional knowledge, in a narrower meaning, refers to knowledge obtained through traditional intellectual activity. Know-how, established practises, abilities, and innovations are examples of this.
Traditional knowledge (TK) is distinguished by its ancient origins and mostly oral nature. It is important to note, however, that information does not become traditional merely because it is old; rather, it achieves this status through being developed, conserved, and passed down within a traditional culture. This information is often passed down across generations via separate and customary mechanisms of knowledge transfer. Thus, the relationship between knowledge and community is what distinguishes it as traditional. Because TK is fundamentally linked to a certain culture, setting, and environment, it is culture- and context-specific. Furthermore, it is a dynamic corpus of knowledge that adjusts to changing conditions and demands throughout time.
TRADITIONAL KNOWLEDGE QUALIFICATION CRITERIA
Traditional knowledge is simply a corpus of information that has been gathered by cultural norms over ages. It also entails constant improvement and adaption of practises as social requirements change. These innovations not only expand on existing knowledge, but also form an intrinsic part of what is passed down to future generations, therefore collectively establishing the basic essence of traditional knowledge for future generations. To summarise, the main elements of conventional knowledge are as follows:
a) Creation of a unique practise or technique to address a specific need.
b) Cultural traditions are used to pass down the procedure or method from one generation to the next.
c) Is restricted to a select group or community since it aligns with their values and views.
The Neem tree is an excellent example of traditional knowledge (TK). This information was well-documented in Indian writings more than two millennia ago and has been used for centuries in a variety of areas such as agriculture, human and veterinary medicine, personal care items, cosmetics, and even as an excellent insect and pest repellant.
INTEGRATING TRADITIONAL KNOWLEDGE IN IPR PROTECTION
Traditional knowledge keepers face a slew of obstacles, some of which jeopardise not just the knowledge itself, but also the cultural survival of their communities. Among these difficulties are:
- There is a growing push to commercialise biodiversity and traditional knowledge.
- Disruption of the delicate relationship that exists between traditional knowledge custodians and their natural resources, which is frequently driven by the bio-trade sector. The transfer of biological resources with real or prospective advantages across governments, businesses, academic institutions, and people is referred to as bio-trade.
Traditional knowledge is frequently viewed as freely available for public use, without appreciating or respecting indigenous communities’ efforts to conserving and disseminating this information. With the growth of new technology, it is now possible to use current knowledge to develop fresh and useful goods. Large businesses are using these technologies to extract resources and associated knowledge without properly crediting local communities for their conservation efforts.
The word “biopiracy” has been used to characterise the unlawful or unethical appropriation of traditional knowledge as well as biological resources. The fight against biopiracy, biodiversity protection, and the need for sustainable practises are all key problems in the twenty-first century. The natural environment of India is distinguished by its abundant biodiversity, which may be both enjoyed and utilised. Bioprospecting can occasionally devolve into biopiracy. It is a phenomena in which property rights to biodiversity and its derivatives are asserted through intellectual property rights frameworks and patents that rely on indigenous and traditional knowledge.
As defined, Bioprospecting is the systematic search for biodiversity with the goal of uncovering important genetic and biochemical data found in wild animals, plants, or microbes. It is largely pursued for scientific and commercial purposes. Bioprospecting is the study of biodiversity in order to discover new biological resources with social and economic value. Bioprospecting is practised in a variety of businesses, with the pharmaceutical industry being the most prominent, but it also extends to agriculture, manufacturing, engineering, construction, and other disciplines. This notion is based on the realisation of the critical role of discovering natural products in the development of new crops and treatments, which frequently depend on traditional knowledge. However, pharmaceutical bioprospecting has come under fire, notably for what has been labelled “biopiracy”. This phrase refers to the practise of large international pharmaceutical firms using indigenous medical knowledge without properly recognising it as indigenous intellectual property.[3]
GROUNDS FOR PROTECTION OF TK
The term “protection” has been defined in numerous ways, resulting in a lack of clarity about its purpose. Some understand it in terms of intellectual property rights (IPRs), where the primary goal is to prohibit unauthorised usage by third parties. Others, on the other hand, see protection as a way to protect traditional knowledge against activities that might lessen its value or have a detrimental influence on the lives and cultures of the people that produced and practised it. Nonetheless, the essential reasons for protecting traditional knowledge include:
EQUITY : The pursuit of equity is a basic premise driving many procedures developed to conserve traditional knowledge (TK). TK has intrinsic worth that is frequently underappreciated and undercompensated under the present system of acquisition and reparation. As a result, it is critical to preserve TK in order to correct the fundamental unfairness in these mostly unearned and unequal relationships. A good illustration of this rationale may be found in the case of plant genetic resources. Traditional farmers play an important role in the conservation and use of genetic resources. They not only preserve these resources, but they also increase their worth via planting, seed processing, and the ongoing selection of well-suited farmer’s varieties. These farmers frequently participate in reciprocal exchanges or trade, which aids in the spread and development of these kinds.The essence of this evaluation is that breeders and seed corporations often acquire these genetic resources free of charge. As a result, traditional and local farmers are not fairly compensated for the value they give, nor are profits shared with these farmers.
CONSERVATION: The second issue supporting the case for traditional knowledge (TK) conservation is the importance of such knowledge in terms of preservation. As a result, maintaining biological variety within agricultural systems is important on a worldwide basis. Intellectual property rights (IPRs) can be used to create cash, allowing practises that would otherwise be abandoned to continue. For example, if traditional farmers forgo farmer’s variety cultivation and breeding in favour of planting contemporary varieties with greater yields, there might be a severe loss of biodiversity. Within this context, TK preservation helps to achieve wider social goals including as environmental conservation, sustainable agriculture, and food security.
PRSERVATION OF TRADITIONAL LIFESTYLES: Traditional knowledge (TK) protection, on the other hand, is viewed as a tool to promote the preservation of practises and skills that embody traditional ways of life. The idea of “protection” in this situation differs greatly from how it is interpreted in the context of intellectual property rights (IPRs). The basic component here is the right to self-identification, which is a critical condition for the survival of local and traditional cultures. The preservation of TK is also an important aspect of humanity’s cultural legacy. According to some data, the issue confronting the world’s different cultures and languages is even worse than the biodiversity crisis
AVOIDING BIO-PIRACY: The goal of conserving traditional knowledge (TK) is, in certain cases, to avoid unauthorised appropriation of this traditional information, sometimes known as ‘bio-piracy,’ while guaranteeing fair benefit sharing. As an example, the Indian government has suggested a language for inclusion in the TRIPS Agreement that would match it with the Convention on Biological Diversity (CBD). Patents that violate CBD would be prohibited under this proposed provision. Improving the information available to patent offices, particularly in terms of evaluating novelty and inventive characteristics, might serve as a preventative strategy to avoid the granting of patents that contain conventional knowledge in an unsuitable manner.
PROMOTING USE AND DEVELOPMENT: Promoting the use of traditional knowledge is a significant goal in and of itself. The safeguarding of traditional knowledge emphasises the need of encouraging its wider use. Protecting traditional knowledge against depletion and theft, as well as compensating its holders, can be viewed as key requirements for encouraging wider use of this knowledge. One important reason for protecting traditional knowledge from erosion and loss is to promote progress. Traditional knowledge is frequently underutilised throughout the establishing process. Legal protection can aid in the investigation of potential for conventional knowledge-based products and services. Furthermore, traditional knowledge may be a valuable resource for improving local creativity, and innovation is critical for the regeneration of local cultures.
IPR’S ROLE IN PRESERVATION OF TRADITIONAL KNOWLEDGE
Intellectual property rights (IPR) have typically been established to protect R&D expenditures while also encouraging creativity by rewarding inventors. However, the current interpretation and use of IPR has turned the focus to modifying others’ desire to engage in certain activities. As a result, private enterprises have capitalised on traditional knowledge and profited from our natural resources through the use of intellectual property rights. Due to the phenomena of bio-piracy, rural farmers and indigenous groups have been stripped of their natural resources and associated skills. As bio-piracy firms charge outrageous rates for these commodities, traditional knowledge-based items become too expensive for these communities. Bio-piracy raises a slew of issues, including indigenous rights, the sustainability of local ecosystems, and even the global climate, as well as a country’s ability to assure food security. The World Trade Organization’s (WTO) TRIPS agreement lays a strong focus on patent rights while frequently neglecting the rights of traditional knowledge holders. However, it is possible that intellectual property rights (IPRs) can be used to protect traditional knowledge (TK) via careful and justifiable reinterpretation. Despite the inadequacies of the present IPR system, key components remain that may be used as both proactive and defensive techniques to protect traditional knowledge. To preserve indigenous peoples’ rights, biological resources, and related knowledge, both national IPR legislation and international treaties must be advanced. These efforts can assist rectify the present IPR regime’s imbalances and deficiencies while also contributing to the larger objective of safeguarding the security and acknowledgement of traditional knowledge.[4]
SUFFICIENCY OF IPR FOR TRADITIONAL KNOWLEDGE IN INDIA
In contrast to other types of intellectual property rights, India lacks a particular statutory framework for protecting traditional knowledge. However, certain clauses in current IP legislation, such as the Patents Act of 1970 (Sections 25[5] and Section 64[6]), allow for the withdrawal of a patent application as one of the causes. Similarly, the Copyright Act of 1957 makes no mention of the protection of traditional cultural, literary, artistic, or folkloric works. Section 31A[7] does, however, provide some protection for unpublished Indian works. It is crucial to highlight that copyright protection is time-limited and requires particular conditions to be satisfied, which may restrict its application in protecting traditional knowledge. In recent years, India has become an active participant in international treaties concerning traditional knowledge and has made initiatives to conserve its traditional knowledge on a worldwide scale. The Council of Scientific and Industrial Research (CSIR) is constantly improving the effectiveness of its traditional knowledge database, which is available at the United States Patent and Trademark Office (USPTO) and the European Patent Office (EPO).[8]
SHORTCOMINGS OF LAW THAT ADDRESSES TK
Devolution, invasion, the push for bioprospecting, the lack of sufficient legal mechanisms, and systemic disputes all contribute to traditional knowledge being particularly vulnerable to biopiracy. Traditional knowledge is typically connected with natural resources, and it is a vital component of these natural reserves. Traditional knowledge has the potential for economic advantage by providing insights and advice for the creation of practical procedures and processes for human benefit. Those who create or possess such traditional knowledge should be entitled to a part of the benefits that flow from it. Some nations have enacted extensive legislation to protect this form of knowledge, whilst others argue that their current intellectual property rights (IPR) framework properly protects such knowledge. At the moment, India lacks a specific sui generis law to safeguard traditional knowledge and folklore. However, attempts are being made to draught such law.
NEEM: For centuries, Indians have praised the Neem tree for its use in biopesticides and medicine. The Neem tree’s therapeutic powers are described in ancient Indian Ayurvedic writings. The European Patent Office (EPO) has cancelled patent number 436257, which was initially given to the United States of America and multinational corporation W.R. Grace for a pesticide produced from Neem tree seeds. Despite the Neem tree’s long history, more than 12 US patents for Neem-based emulsions and solutions have recently been issued.
TURMERIC: The University of Mississippi Medical Centre was granted patent rights for a wound-healing process comprising the application of turmeric to a patient’s wound by the United States Patent and Trademark Office (U.S. PTO) in 1993. Following that, a request for re-examination of the issued patent, backed by over two dozen citations, was made, resulting in an early good decision.
RICE: Another famous case that sparked major debate included a patent awarded by the US Patent and Trademark Office (USPTO) to an American business called Rice Tec for ‘Basmati rice grains.’ Basmati rice is a fragrant rice type that is commonly grown in India and Pakistan. The issuance of this invention resulted in a slew of intellectual property (IP) concerns that went beyond patent law and included trademarks and geographical indications. A request for re-examination was made following declarations from two scientists and the publishing of several papers on Basmati rice and associated studies undertaken in India. Because of one of these petitions, the USPTO recognised that Rice Tec’s main claims lacked clarity and support.
BENEFIT SHARING AND CONSENT: Traditional knowledge is frequently used without the permission of indigenous people or organisations that have developed and maintained it through time. Furthermore, there is sometimes a lack of equitable recompense for the advantages received from such utilisation. One option is to investigate the possibilities for more efficient use of the current intellectual property rights (IPR) system as a method of protecting local people’ and communities’ traditional knowledge.
RESEARCH METHODOLOGY
The objective of the research is to look at the preservation of traditional knowledge linked with biodiversity in India and its implications for indigenous peoples’ rights under the intellectual property rights (IPR) framework. The study goals include investigating the current condition of traditional knowledge, assessing the influence of IPR on indigenous rights, and making preservation recommendations. Data will be gathered through a study of the literature, interviews, and surveys with indigenous groups and stakeholders. Informed consent and cultural sensitivity will be prioritized in terms of ethics. Qualitative and quantitative data analysis approaches is used. The findings will be explored in light of current literature and legislative frameworks, and policy recommendations will be made. The study will finish with a summary of major results and their relevance, with correct reference throughout.
REVIEW OF LITERATURE
The literature on safeguarding traditional knowledge, biodiversity, and indigenous rights within India’s IPR law emphasizes the necessity of preventing misuse of indigenous knowledge. It analyses international accords such as the CBD and the Nagoya Protocol as alternatives, as well as case stories that illustrate the challenges and possibilities in this field. Overall, it advocates for a fair and culturally sensitive approach to the preservation of traditional knowledge.
ANALYSIS AND SUGGESTION
- To ensure legal access to genetic resources and traditional knowledge, national and international regulatory frameworks within the intellectual property system must be established and used.
- Promoting constructive and protective measures for traditional knowledge preservation should be prioritised, while emphasising the importance of preserving and improving flexibility within current international frameworks.
- It is essential to ensure that indigenous and other local groups participate actively and meaningfully in all conversations and agreements addressing genetic resources and cultural knowledge.
CONLUSION
Preserving traditional knowledge in the context of biodiversity in India and preserving indigenous people’s rights within the framework of intellectual property rights (IPR) is a complex task. The stated literature analysis and research approaches emphasise the critical need for fair legal frameworks and policy initiatives. These should recognize and conserve traditional knowledge, guarantee equitable benefit distribution, and include indigenous groups in decision-making processes. To do this, indigenous people and stakeholders must actively participate in international talks. Looking forward, it is critical to find a balance between intellectual property rights and the preservation of irreplaceable traditional knowledge in order to establish a sustainable future in which both biodiversity and indigenous rights are recognized and protected.
SUBMITTED BY:
JASLEEN KAUR
AMITY LAW SCHOOL, NOIDA
[1] ®Shamama Afreen & Biju Paul Abraham, Bipiracy and Protection of Traditional Knowledge: Intellectual Property Rights and Beyond, INDIAN INSTITUTE OF MANAGEMENT CALCUTTA (Sep. 15, 2023, 2:00 AM), https://ir.iimcal.ac.in:8443/jspui/bitstream/123456789/349/1/wps-629_1.pdf.
[2] Mahak Agarwal, IPR vis-à-vis traditional knowledge, I PLEADERS (Dec. 28, 2020, 06:59PM), https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/#Meaning_of_traditional_knowledge.
[3] Bency Baby T & Timmakkondu Narasimman Kuppusami Suriyaprakash, Intellectual Property Rights: Bioprospecting, Biopiracy and Protection of Traditional Knowledge – An Indian Perspective, INTECHOPEN (May 17, 2021, 07:57AM), https://www.intechopen.com/chapters/78249.
[4] Riya, Protection of Traditional Knowledge Under Intellectual Property Rights Regime, 1E-JAIRIPA 149, 155 (2020).
[5] The Patent Act, 1970, No. 39, Acts of Parliament, 1970 (India)
[6] The Patent Act, 1970, No. 39, Acts of Parliament, 1970 (India)
[7] The Copyright (Amendment), 1992, No. 13, Act of Parliament, 1992 (India)
[8] Vatsala Singh, IPR Vis-à-vis Traditional Knowledge, KHURANA & KHURANA (Oct. 15, 2018, 09:23 PM), https://www.khuranaandkhurana.com/2018/10/05/ipr-vis-a-vis-traditional-knowledge/.