justice, right, legal

Role of Intellectual Property Rights in Protecting Traditional Knowledge and folklore infringement to bio-privacy

CONTENT

  1.  Abstract
  2. Keywords
  3. Introduction
  4. Research Methodology
  5. Creativity
  6. Human creativity and Intellectual Property
  7. Types and characteristics
  8. Intellectual Property System
  9. Securing Intellectual Property Rights over TK
  10. Protection measures
  11. Legal options
  12. TK and IP Relationship
  13. Role of WIPO
  14. suggestions
  15. Conclusion
  1. ABSTRACT

Specialized areas of law and policy-making the subject of intellectual property has come to the forefront of global economic policy. There are also specialized varieties of intellectual property rights which are known as sui generis (unique in its characteristics) intellectual property rights such as intellectual property rights in layout design of integrated circuits, new varieties of plants or databases. The importance of intellectual property as a policy tool to promote development has been a key feature of Dr. Idris vision as Director General of the World Intellectual Property Organization since 1997. He has campaigned extensively to enhance among global leaders, awareness and understanding of intellectual property and its strategic importance in promoting economic, social and cultural development. 

  1. KEYWORDS

Sui generis, World Intellectual Property Organization (WIPO), Traditional Cultural Expressions (TCEs)

  1. INTRODUCTION

Intellectual creations create value of creativity, innovation and the importance of protecting creative innovation and the importance of protecting creative works. IP and IPRs for protecting inventions patent, trademarks, industrial designs. At present our graduates coming out of engineering and technology streams have no idea about IPRs yet it is young people who generate and exploit the intellectual property. Once public life starts respecting the body of intellectual property concepts and law it will develop a concrete understanding of the nature of intellectual property and recognize the key roles it plays in economic, social and cultural development.

  1. RESEARCH OF METHODOLOGY

The study is purely doctrinal in nature in this paper the author uses primary sources as IP books and various web journals.

  1. CREATIVITY

Creativity is defined in many definitions but also there is no one that everyone can agree with. It is a mental process involving the generation of new ideas or concepts, or new associations between existing ideas or concepts. Creativity is the capacity to have the capacity to have new ideas and to create new things. Researchers usually claim that being creative means being novel is appropriate or else it may in the form of scientific point of view, the product of creative thought are usually considered to have both originality and appropriateness. Creativity is fundamental for humankind to go forward. It ensures a better and more prosperous future for mankind. Recognizing its limitless resource and exploiting it as an economic asset is key to achieving prosperity in today ‘s world. A nation’s cultural heritage can help attract visitors to a country, bringing tourists for music or theater, festivals, art exhibitions, museum or library collections or other activities deriving from the creative resource of the population. Tourism is a good example of an industry that can be boosted by a nation’s creative activity.

  1. HUMAN CREATIVITY AND INTELLECTUAL PROPERTY

The connection between intellectual property and creativity does not seem obvious when we see it is the intellectual property system that sustains and nourishes the creators. Intellectual property means the property in intellectual creations, which has some commercial potential and which is protectable by statute or legislation. They cover inventions, literary and artistic works, symbols, names, images, and designs used in commerce. “Property” means that protected intellectual creations can be used only with consent of the inventor, author or other owner of the rights. Protecting intellectual creations through a system of national and international rules are called intellectual property rights. Intellectual property rights are for protecting the creative, insightful, unique and inventive creations of the human mind. Intellectual property rights are like any other property rights: they allow the creator or owner to benefit from his or her own work or investment. The principal types of intellectual property are patent, copyrights, and trademarks. People need to make money out of their ideas. So, they have to give some form of exclusive rights over their ideas.

Thus, we have copyrights, patents, trademark and other legal proprietary systems. Some write a song, write a novel, have an idea, and develop a logo, a brand. They all should be protected. And more and more, to an economy based on ideas, we should look to see if people who develop those ideas have a good life. Earliest use of the term “intellectual property” appears to be an October 1845 Massachusetts Circuit Court ruling in the patent case[1].

  1. Types and Characteristics

Intellectual property can be divided into two categories: –

  1. Industrial Property – Includes inventions (patents), trademarks, industrial designs, and geographic indications of source.
  2. Artistic and literary property for example when copyright and related rights, which includes a broad range of literary and artistic works, written, performed, and recorded.

Intellectual property is unique as it is the fruit of personal creation and inventiveness. It might be a poem that a poet writes, the name a particular person thinks up to sell his or her services, or an inventor’s invention for a non-spill cup for babies. Further, the intellectual property owner has the right to prevent the unauthorized use or sale of the property. Because intellectual property is intangible many people may use it simultaneously without conflict. For example, only one person can drive a car at a time but if an author publishes a book many months can read the work at the same time. It may take many months of work to write a novel or computer program, but with a photocopy machine or a computer other could do the work in a matter of seconds. 

8. INTELLECTUAL PROPERTY SYSTEM

The intellectual property system refers to the entire gamut of intellectual property laws, procedures, practices and institutions responsible for protecting, administering, enforcing, and using intellectual assets for social, cultural and economic progress. Every country needs a well-developed and healthy intellectual property system for economic and social well-being. Intellectual property laws vary from jurisdiction to jurisdiction such that the acquisition, registration or enforcement of intellectual property rights must be pursued or obtained separately in each territory of interest. These laws are becoming harmonized through the effects of international treaties such as the 1994 World Trade Organization (WTO) Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS), while other treaties may facilitate registration in more than one jurisdiction at a time. Certain forms of intellectual property rights do not require registration in order to be enforced. The proper use of intellectual property assets is to treat the tools of the intellectual property system in the form of trade secrets, patents, trademarks, industrial design, copyright, etc.) as instruments for developing business relationships. Intellectual property properly managed can be a powerful tool for growth and progress. To fulfill its potential, intellectual property protection has to be supported by appropriate policies and a deep commitment by governments to establish an effective infrastructure to process and make use of intellectual property rights.

Everywhere we look we see images of intellectual property in action:

  1. In the color and drama of a box office hit movie.
  2. In the song of Sid Siram
  3. In the intricate weaving of an Iranian carpet
  4. In new medical treatments based on innovative research of one of our national laboratories.

Almost everyone in society is a user and potential creator of intellectual property. Most people deal with intellectual property everyday of their life. Every product or service that we use in our daily lives is the result of a long chain of big or small innovations, such as changes in design, or improvements that make a product look or function the way it does today. Its inventor has taken a patent on it. But like him many others have improved the product and its designs and legally protected their improvements through the acquisition of intellectual property rights.

9. SECURING INTELLECTUAL PROPERTY RIGHTS OVER TRADITIONAL KNOWLEDGE

Traditional knowledge, Indigenous knowledge and local knowledge refers to matured long-standing traditions and practices of certain regional, indigenous, or local communities. Traditional knowledge also encompasses the wisdom, knowledge, and teachings of these communities. Many cases traditional knowledge has been orally passed on for generations from person to person. For some communities’ traditional knowledge takes on a personal and spiritual meaning. Traditional knowledge can also reflect a community’s interests. Subsequently communities argue that traditional knowledge warrants respect and sensitivity. Commercial interest in plant and animal species in industrializing countries, and in traditional knowledge and remedies has raised questions of ownership of such resources previously assumed to be in the public domain. The existing system of intellectual property rights has been criticized for allowing individuals or entities to appropriate commercially valuable resources such as plant varieties, etc. At the same time, the holders of these resources have themselves started exploring the concept of communal intellectual property right. Business enterprises are open to practical proposals for the protection of communal and indigenous intellectual property and are engaging in constructive discussion. Any sui generis system for TK must be designed to coexist effectively with conventional IP rights such as patents. Moreover, the public domain should not be defined too narrowly or encroached upon without good reason. Access and benefit-sharing (ABS) are twin principles of the Convention on Biological Diversity (“CBD”) which recognizes the sovereign right of the states over genetic resources. The CBD encourages bio prospectors to consult with concerned indigenous and local communities in any bio-prospecting and to agree terms with them for access to genetic resources. Even when such consultations are pursued in good faith, new groups may subsequently emerge and challenge the authority of the groups initially consulted. And legal certainty is needed otherwise that will result in lower benefits and will discourage that access to resources that the CBD is intended to promote. The Convention on Biological Diversity several national governments have passed several legislations regulating access to biological resources. Government should ensure that such legislation having an impact on IPR is compatible with the TRIPS Agreement. Various communities throughout the world have turned to intellectual property laws to preserve, protect, and promote their traditional knowledge. Only few nations offer explicit sui generis protection for traditional knowledge there are as follow:

  1. Protective paradigm seeks to prevent others from using or securing intellectual property rights over traditional knowledge. Example, some communities have created traditional knowledge databases to evidence their traditional knowledge as prior art in order to prevent perceived abuses such as biopiracy. A consequence of this defensive form of protectionism is the loss of an economic catalyst to discover new things. Other defensive efforts include preempting the registration of community names as trademarks and actions for misappropriation.
  2. Protective paradigm seeks to secure protective legal rights over traditional knowledge. This is achieved by either using the existing laws or using legislative means to enact new laws. For instance, some forms of traditional knowledge may be used to help others and if exclusive rights were granted some may go unhelped. Other concerns deal with the equitable sharing of benefits and resources. And a number of countries are still undecided as to whether law should give traditional knowledge.

The World Intellectual Property Organization (WIPO) is currently working with different nations, organizations, and communities to address the policy/legal issues with traditional knowledge protectionism. The different stakeholders in the field of traditional knowledge are now actively engaged in exploring how the demands in this area should best be met in particular through meetings of the Inter-Government Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Countries with traditional knowledge and genetic resources can help by classifying and documenting this. Indigenous and traditional communities often regard expressions of their traditional cultures/folklore as inseparable from systems of traditional knowledge (such as medical and environmental knowledge, and knowledge related to biological resources). Although ‘expression of folklore’ has been the term used most commonly in international discussions and is found in many national laws, some communities have expressed reservations about negative connotations of the word ‘folklore’ interchangeably. The choice of an appropriate term or terms and the identification of the subject matter that cover ultimately a matter for decision by policy-makers and relevant communities at the local and national levels. Traditional cultural expressions, often the product of intergenerational and fluid social and communal creative processes, reflect and identify a community’s history, cultural and social identity and values. Traditional cultural expressions/expressions of folklore mean productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community of a particular country or by individuals reflecting the traditional artistic expectations of such a community. Expressions of traditional culture or expressions of folklore may be either intangible, tangible or most usually combinations of the two; an example of such a mixed expression of folklore would be a woven rug, a tangible expression.

Traditional Cultural Expressions/FOLKLORE are said to be:

  1. Handed down from one generation to another either orally or by imitation
  2. Reflect to a community’s cultural and social identity
  3. Characteristic elements of a community’s heritage
  4. Authors unknown or by communities or by individuals communally recognized as having the right, responsibility or permission to do so
  5. They are often not created for commercial purpose
  6. Constantly evolving, developing and being recreated within the community.

10. PROTECTION MEASURES

Traditional and Indigenous other cultural communities cite when arguing that traditional creativity and cultural expressions require greater protection: Indigenous art has been copied onto carpets, T-shirts and greeting cards traditional music has been fused with techno-house dance rhythms to produce best-selling world music albums hand-woven carpets and handicrafts are being copied and sold as authentic the process for making a traditional musical instrument have been patented indigenous words and names have been trademarked and used commercially.

11. Legal Options

TCE protection has shown that no single template or comprehensive one-size-fits-all solution is likely to suit all the national priorities, legal and cultural environment, and the needs of traditional communities in all countries. Instead, effective protection may be found in differentiated and multiple options for protection by an internationally agreed set of common objective and core principles. Many countries and several regional organizations have elected to protect TCEs through sui generis measures. Most have done so within their copyright laws, following The MODEL PROVISIONS, 1982. Others have elected to establish stand-alone IP-like laws and system example which as follow: –

  1. The Indigenous Peoples Rights Act of 1997 of the Philippines
  2. The Bangui Agreement on the Creation of an African Intellectual Property Organization (OAPI) as revised in 1999
  3. The Special Intellectual Property of their Cultural Identity and their Traditional Knowledge of Panama, 2000.

12. TRADITIONAL KNOWLEDGE AND INTELLECTUAL PROPERTY RELATIONSHIP

The heritage of a community plays significant social, spiritual and cultural roles as a source of creativity and innovation. The use of traditional cultural materials as a source of contemporary creativity can contribute towards the economic development of traditional communities through the establishment of community enterprises, local job creation, skills development, appropriate tourism, and foreign earnings from community products. Intellectual property can play a role by which providing legal protection can enable communities and their members to commercialize their tradition-based creations and should wish to do so or to exclude free-riding competitors. Significant experience in developing and implementing property protection specifically for TCE/folklore at the international, regional and national levels. Not all aspects of intellectual property protection are focused directly on innovation and creativity, particularly the law of distinctive marks, indications and national symbols as well as the related area of the repression of unfair competition. These aim at the protection of established reputation, distinctiveness and goodwill such as may be enjoyed by a traditional community in the production of handicrafts, artworks and other traditional products. The elements and principles of the copyright system are particularly relevant to the protection of TCE because many are literary and artistic productions and therefore already or potentially subject matter of copyright protection. The other main branch of intellectual property law, industrial property, as also been used to protect TCE, especially trademarks and the suppression of unfair competition. Indigenous and traditional communities are concerned that unauthorized, commercial enterprises take their words, names, designs, symbols and other use and register them as trademarks. This practice can be challenged under general trademark principles.  

13. Role Of WIPO    

The World Intellectual Property organization which first began to examine the relationship between intellectual property and the protection, promotion and preservation of traditional cultural expressions or expression of folklore several decades ago, as an active program of policy development, legislative assistance and capacity building in this area. WIPRO and UNESCO cooperate on the protection of traditional cultural expressions.

14. SUGGESTIONS

New technologies and biotechnology have led not only to the development of new types of products and services but also to new forms of distribution and methods of infringements. New technologies and business players are emerging so fast in these fields that unless traditional business and governmental and other organizations deal with intellectual property rights they have to respond quickly or they will be overtaken by such developments. The economic, social, political and technological forces changing intellectual property landscape today by globalization, non-importance to non-technological, the development of new technologies, the politicization of intellectual property, changes in the ways business operate. So, to overcome such strict legislation with worldwide network and coordination must be there between states. And also proper assuming greater importance in respect of traditional knowledge and folklore as well as the conservation, preservation, management, sustainable utilization and benefit of genetic resources.

15. CONCLUSION

The foundation of jurisprudence of IPRs has been built brick by brick through various international conventions and agreements, beginning from the Paris Convention of 1883 and ending at WTO-TRIPs. Establishment of WIPO has made the task of implementation of various international instruments easier and effective. This landmark event in the history of promotion and protection of intellectual property rights at global level. WIPO believes that human capital of developing countries is key to realizing the full benefits of the national and international intellectual property system. The TRIPs agreement for the first creates a multilateral framework for enforcement of all IPRs which were so far left to the nation States to carry out at their discretion under national laws.

Submitted by ASHIK ST

IV Sem, BA LLB (Hons), AL AZHAR LAW COLLEGE


[1] Davoll et al. v Brown in which Justice Charles L.