ABSTRACT
The world’s continuance and conservation is possible due perseverance of the ethical and social heritage by the traditional guardians of environmental resources, knowledge, artifacts, expressions, learning’s ‘the indigenous people or population’. They are strategically equipped and skilled for their survival and passage of linage which makes them conservators of most traditionally unexploited knowledge and resources, which are predominantly held by the local tribes, communities and governments through inter-generational transfers. On the other hand, the modern world has developing through control of certain rights over some knowledge, product or process by providing the owner with exclusive rights to use it against the society. Balance between the individuals rights and benefits of people at large (even a community prevalent in the country), has to be striked for orderly functioning of the society. This is the foremost objective attained by World Intellectual Property Organization (WIPO), who is accompanied by various conventions and treaties at international, inter- nation and national spheres. Putting forth the idea of sustainable development and conservation of environment the autochthonic, holders of the knowledge about the natural resources and sole bearers of skills for their survival are paramount players. Their interest is circumscribed in the preservation of the heritage held by them in form of knowledge, art, culture, forms of expression, resources and like which negotiates there tactic of survival against the modern world; for such reasons special criterion for the protection of their rights by the way giving special status is ensured so as their interests are not exploited by the moneymakers. Through this research paper an analytical for the same is indicated
KEYWORDS
Genetic resources, Indigenous People, Intellectual property, Sui-generis, Traditional Cultural Expressions, Traditional Knowledge.
INTRODUCTION
The notion behind protection of intellectual property is preservation of product or knowledge which is an end result of a human hardwork, labour, capital and most importantly intellect. But at a larger glance information which is unattended and guarded has the risk of manipulation and unrestricted exploitation. The holder or owner of Intellectual Property (IP) has exclusive exploitation, licensing, distribution, moral, related and many associated rights which are ensured by the state, troublesome parts entre when any unrecorded generic resource, knowledge or expression is patented or copyrighted and leads to violation of rights of the community and public at large. ‘The idea of related rights has also attracted some attention as a way of protecting the unrecorded cultural expression of many developing countries, which is part of their traditional cultural expressions (what has historically often been referred to as “folklore”), because it is often through the intervention of performers that these expressions are communicated to the public.’ The expressions, knowledge and resources available in the public are at a stress of violation community’s who developed and nurtured inter-generationally for their perseverance. To combat through vertically viz categorically segregated national, developed and developing; and horizontally which are different ethical, historical and other spherical communities. Dwindling of natural resources due to the advancements in the science and technology has increased the interests in exploiting the traditional knowledge and expressions of the indigenous people who seeks cooperation from the international and sui-generis models, foundational for the all-inclusive charter to the world.
RESEARCH METHODOLOGY
This research paper is a comprehensive study of rights of indigenous people. Enunciation of various covenants and precedents established internationally seeking to safeguard the most possible aspects of knowledge and research held by the indigenous people. A collective study of present conventions, articles, journals and websites are included in this analysis.
LITERATURE REVIEW
The result of human intellect and resources leading to development of any article, process or expression that is the outcome of his humanly touch and understanding of the matter; any protection given from its usage by any unauthorized third party is the IP. The IP is protection guaranteed by the state to the owner to enjoy its uninterrupted usage. That derives to the rights of exploitation, distribution, licensing and moral rights attached to it. In-re to indigenous people the IP held by them is distinctive and eccentric. ‘Primarily traditional knowledge differs from modern knowledge in the manner of creation i.e. traditional knowledge is normally empirically validated therefore it is said that Modern Knowledge has been validated in laboratory of brick and mortar whereas traditional knowledge has been validated in the laboratory of life.’ The Laws and Conventions aim at striking the balance between rights of the owner of the IP and benefit of society at large. The knowledge possessed by the indigenous people necessitates protection as:
- ‘Consideration of equity and knowledge invested by them for preservation and building of the knowledge.
- Conservation questions, predominantly portrays the heritage and ancient treasurers of knowledge and belongings.
- The maintenance of traditional customs and community, and are responsible for preservation through generational transfer of knowledge.
- Prevention of appropriation of components of traditional Knowledge (TK) by unauthorized persons.
- Fostering its uses and its significance in development. ’
‘The regime responsible for the protection of the intellectual property rights incorporating the spheres of knowledge, processes, innovations, inventions, and even naturally occurring phenomena such as plants, animals and genetic material, is the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO). ’The rights addressed to such people have a very diversified essence of knowledge and creations, which rarely is same across all the communities, their uniqueness is enticing factor to gain numerous benefits from fractionally smaller input than that required in original innovation. Therefore for the protection of knowledge and resources of indigenous people WIPO and various organizations came up with conventions to strengthen their rights, these are enumerated as follows:
- UNITED NATIONS DECLARATION ON RIGHTS OF INDIGENOUS PEOPLE, 2007- This convention first of its kind formalizing the legal rights held with the indigenous people by affirming protection there of cultural, political, social and economical rights. Alongside guarantees the right of self-determination, right to establish and control institution, right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination, right to determine and develop priorities and strategies for exercising their right to development. ‘The right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts(Art.31).’
- CONVENTION ON THE PROTECTION AND PROMOTION OF THE DIVERSITY OF CULTURAL EXPRESSIONS, 2005- Analogous to the former, this convention protects the diversity of cultural expressions and raise awareness at local, national and international levels. Promotes the values of solidarity, cooperation internationally and dignity at domestic stages circumscribing around cultural and intercultural values and heritages in all spheres of life.
- CONVENTION ON BIOLOGICAL DIVERSITY, 1992- The foremost step to recognize right over genetic resources and need to preserve them for generational transfer and protection of ethnicity.
- CONVENTION CONCERNING THE PROTECTION OF THE WORLD CULTURAL AND NATURAL HERITAGE, 1972- It primarily focused to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programs, not just inter-territorial but embarks international efforts as well.
- ‘The TRIPS Agreement requires a review of Art.27.3(b) which deals with patentability or non-patentability of plant and animal inventions, and the protection of plant varieties. Paragraph 19 of the 2001 Doha Declaration has broadened the discussion. It says the TRIPS Council should also look at the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity, the protection of traditional knowledge and folklore.’
Apart from the international domestic laws relating to IP and customary practices are intrinsic in protection of socio-economic life of the communities where such practices are prevalent. The legal systems have developed the new, stand alone sui-generis systems that specifically designed for TC/TCE’s. ‘A model of sui generis national legislation that would give communities property-like rights over their collective knowledge was developed by the Third World Network (Community Intellectual Rights Act) in 1994.’ These systems are not recognized by TRIPS due the distinctiveness possessed by the national legal systems vary territorially. Sui generis models are alternative that are created outside the regime of IP and qualify to be ‘a one of its kind’ models. ‘The Indian Arts and Crafts Act, 1990, of the United States of America protect Native American artisans by assuring the authenticity of Indian artifacts under the authority of an Indian Arts and Crafts Board. The Act, a truth-in-marketing’ law, prevents the marketing of products as Indian made when the products are not made by Indians as defined by the Act.’ The limit to the existing laws and adaptations is that they fail equip with changing concerns of the TC/TCE/GR’s , there some national laws recognize the status of TC like that of Indian Patent Act and the Chinese traditional medicine trademark, whereas some falls short in even providing mere recognition of equal status. ‘The Patent Cooperation Treaty (PCT), a WIPO-administered treaty for international cooperation in the field of patents, provides for an international search and examination, which takes into account TK-related information resources, thus increasing the likelihood that relevant TK will be located at an early stage in the life of a patent.’
METHOD
The information and other forms of knowledge available to the public at large for their free use and exploitation is termed as ‘the public domain’, whose use is rejected by various indigenous people, local communities and governments profusely though not restrictive from the developing countries. Their protection was repudiated by the conventional IP systems, leading to the uproar of these heritage holders to demand protection from misuse and misappropriation of their heritages. The inability of conventional IP systems to forcibly restrict the exploitation of traditional knowledge was rather converted to reprimand the values and principles embedded with them. The preservations available to the indigenous people and local communities are three-tired, hereafter mentioned:
- Traditional knowledge (TC)- knowledge with regards to the methods of fishing and hunting; water management; animal migration patterns: and traditional medicines.
- Traditional Cultural Expressions (TCE)- verbal expressions like tales, poetries, riddles; musical expressions like songs; expressions by actions like dance, artistic works; other tangible form of expression like drawing , jewelry, pottery, costumes, musical instruments etc.
- Generic Resources (GR)- medicines, agricultural crops and animal breeds.
‘The indigenous peoples and local communities have unique needs and expectations in relation to IP, given their complex social, historical, political and cultural dimensions and vulnerabilities.’ Their redressal is way more culturally and ethnicity sensitive that the IP isn’t able to provide yet. This knowledge holds the serenity of the morals, culture, ideologies, and sustainability patterns, medicinal and agricultural ideas, whose preservation is possible, by the way generational transferability and protection from extrinsic exploitation.
The protection guaranteed does not just qualify individualistic safeguarding in spite, to the community or more than one community having same or similar TC or TCE across different countries. ‘In some instances though, beneficiaries may also include recognized individuals within the communities, such as certain traditional healers, artists or individual farmers working within the community. Typically, this recognition arises through customary understandings, protocols, laws or practices.’ This implies the protection isn’t just guaranteed to the holder but also to the bearers and custodians as well. The vast implication for the protection through IP has idea beneath, ‘their knowledge’s collectively originates, so the protection of rights and interests should vest with the communities rather with the individuals’.
Systematization of protections is offered to holders of TC/TCE’s:
- Ensure recognizing and exercising of the exclusive rights to use or perform the art or act.
- Also imbibes moral rights, equitable compensation schemes and protection against unfair competition.
- Collective right against misappropriation and enforce community control for their commercial exploitation and benefits.
‘Protection of TK/TCE and GRs is different from “preservation” or “safeguarding,” which are the identification, documentation, transmission, revitalization and promotion of knowledge and cultural heritage in order to ensure its maintenance or viability. ’ For the purposes of preservation and safeguarding the governments and holders have come up with the documentation and recording via databases, inventories, lists and other forms which is distinctive from the legally offered protection in the conventions and customary laws. Preservation is for the relevant community but the digitized libraries allow immeasurable flow of data which misappropriates with the IP holder’s rights. ‘Some formal registries support some sui generis protection systems, while databases of TK and GRs can play a role in defensive protection within the existing patent system, such as India’s database on traditional medicinal knowledge: the Traditional Knowledge Digital Library. These examples demonstrate the importance of ensuring that documentation is linked to an IP strategy and does not take place in a policy or legal vacuum.’
Foundation of protection given to the holders of TC/TCE/GR’s has strategically bifurcated to approaches i.e., positive or protective, and negative or defensive. They contemplate to an integrative angle for ensuring the protection IP of such knowledge holders, elaborated as follows:
- Positive protection- Most preferably used in TC and TCE’s where the holder has righter to opt for IP protection wherein, they’ll have the uninterrupted the use or exploitation of their knowledge and prevent the unwanted and unauthorized interruption from the third parties. They control the authorization by owning the choice of granting licenses which thereby ensures their economic development. This sphere of protection imbibes to regulate the functioning of knowledge as per will and wishes of the IP holder.
- Defensive protection- Herein the TC/TCE’s are prevented from illegitimate acquisition by the third parties, by the way of stopping the people exterior to the community from acquiring any IP. ‘India, for example, has compiled a searchable database of traditional medical knowledge that can be used as evidence of prior art by patent examiners when assessing patent applications.’
- For protection GR’s- They distinct from the IP as their existence are encountered in nature rather a product of human intellect. The protection is two-fold i.e., prevention of any person from acquiring patent of product or information is developed from or by using any GR; and further the Convention of Biological Diversity and its domestic adaptations comes up the idea of mutual agreement and benefit-sharing contracts implying the applicant to mandatorily disclose the GR source being used and take consent as well ensure the benefit sharing from its usage.
As predominantly in the case of India flourishing 34 global biodiversity hotspots worldwide made it potent to the violation of the TC/TCE/GRs present within its traditional and medicinal concepts from 500BC. ‘That India is a biologically diverse and the traditional knowledge possessed regarding various resources, especially the medicinal system, makes it a richer nation is understood, however such the possession of such knowledge must be both protected and promoted. India has undergone many struggles in trying to safeguard her traditional knowledge. These resulted from patents granted to corporations, for knowledge that is India’s legacy.’ Through the major three landmark judgments where; the Neem plant for antiviral and antibacterial purposes, the Turmeric for wound healing and the rice variety namely Basmati for given patent by USTPO( United States Patent and Trade Mark Office) and EPO(European Patent office) to companies, those were taken back as were GR of the India.
SUGGESTIONS
The existing model that leads of the IP is the WIPO, whose functionaries are the conventions like UNESCO, UNDRIP, TRIPS runs parallel with national treaties and legislations and also inter-states or nationals agreement. The protection provided by them works with the two-fold dimensions viz. protection and granting of exclusive rights to holder or owner of the IP and; the need and benefits of the society. The IP protected under TC/TCE/GR’s are collectively held by the owners or developers, bearers and custodians which pushes communal growth and survival. But the prevalent issue with all forms of IP similar here is the rampant information available to people in general exploiting the exclusive and moral rights of the holders of the IP. The unauthorized and intractability of benefiters from makes it even more difficult indemnify the losses suffered by the holder of IP. To worsen the holders TC/TCE/GR are those to whom such vulnerabilities and resdressal is not known. ‘Traditional knowledge may be termed as the IP family’s newest member. However, the decisions on tackling this child have to be taken considering several factors, besides the (un)willingness of nations. Correctly put, the knowledge system of informal sector i.e. traditional knowledge is often oral and not properly documented, thus non-defendable. ’ The inter-border security measures, stringent civil and criminal remedies and measures, remedies and sanctions against abuses in respect of technical devices are some handy reform and revisit the conservatory requirements for the self-determinant and human centric approaches for betterment and balance of the rights between the owners and beneficiaries of the society, conjointly regulated by international, national and customary laws of such communities.
CONCLUSION
The analysis of various regimes internationally and nationally derives the acceptance of the concept of protection of TC/TCE/GR’s for the preservation of intellectual generational wealth of the societal section that have spent years in developing and propagating amongst themselves. These exclusive set of right not only boosts and promotes the existence societies and communities whose aim and survival is nonetheless is based on those cultural, ethnic, social, economical and historical knowledge and acts, but alongside provides for the preservation and exploitation measures to be restricted in there’s purview. The common law, international treaties and sui-generis models have come handy to appeal for the voices of commute communities. The world’s a heritage of biological hotspots which hold numerous GR whose exploitation like the rights of copyright or patent restricts the society to take the benefit which is guaranteed by the state out of the trustee-beneficiary relationship between the state and society or citizens. These rights uphold to growth TK which are locally inhabitant, render its existence to the nature, is ‘flexible with the new interventions and integrations of green technologies and inspires social responsibility.’ ‘But this research has shown that trade secret has been isolated to provide a profound protection for Indigenous knowledge considering the avalanche of protective avenues possible under it since the object of trade secret is to lawfully prevent information (which is a secret having commercial value) within the control of a community from being disclosed to, acquired by, or used by others without their consent, in a manner contrary to honest commercial practices.’