How to protect our Traditional Knowledge?

This article is contributed by Shri. Vishnu S Warrier, Founder of Lex-Warrier Foundation. Mr. Warrier is an Indian legal professional, author, legal educator, journal editor, scholar, academician, RTI Activist and political thinker. He is a prolific writer in the field of contemporary socio-legal issues. This article is an edited version of his paper presented in the National Seminar on the National Education Policy, 2016 held at Thiruvananthapuram in December, 2016. In this article author discuss the role of education in protecting traditional knowledge from biopiracy.

Biopiracy a major concern for Traditional Knowledge

There have been several cases of biopiracy of Traditional Knowledge (Indigenous Traditional Knowledge) reported from India in the recent past. Need to protect and preserve Traditional Knowledge has gained its importance in India; especially after the Neem Patent Controversy[1]. India has been successful to get cancel the patent registration or force the applicant to withdraw more than 50 patent applications across the globe in last two-three years including European Patent Office (EPO) and United States Patent & Trademark Office (USPTO), where a biopiracy of Indian traditional knowledge is involved.

Most of those patent applications were related to patenting of traditionally known medical formulations in India. Indigenous Traditional Knowledge is unique, traditional, local knowledge existing within and developed around specific condition of men and women indigenous to a particular geographical area. These are evolved through many years of regular experimentation on the day to day life and available resources surrounded by the community.

With the rise in biopiracy cases of Traditional Knowledge, it becomes a need of the hour to protect and archive our traditional knowledge from further exploitation by foreigners. But the question is how? In this paper researcher tries to;

  1. Identify the significance and importance of Traditional Knowledge;
  2. Identify the need to protect Traditional Knowledge;
  3. Identify how we can protect our Traditional Knowledge?

Traditional Knowledge: What it is?

There is no universally accepted definition for Traditional Knowledge. It generally refers to knowledge systems embedded in the cultural traditions of regional, indigenous, or local communities. The World Intellectual Property Organization (WIPO) defines traditional knowledge as ― indigenous cultural and intellectual property, “indigenous heritage”, and customary heritage rights[2].

These, are those knowledge which has been orally passed for generations from person to person. Some forms of traditional knowledge find expression in stories, legends, folklore, rituals, songs, and laws[3].

It is a part of the culture and history of a local community. In other words, it variously referred to as “traditional knowledge”, “traditional ecological knowledge”, “local knowledge”, and “folk knowledge”, and such knowledge is developed by local and indigenous communities over time in response to the needs of their specific local environment[4].

Indigenous Traditional Knowledge is a cumulative body of knowledge and beliefs handed down through generations by cultural transmission about the relationship of living beings, including humans with one another and with their environment[5].

Significance of Traditional Knowledge

Traditional Knowledge is locally appropriate and specifically adapted as per the requirement of local conditions. They have diversified production mechanisms without the over exploitation of a single resource. These are crucial for the well-being as well as the sustainable development of the local communities. These are developed to conserve and develop the biological diversity of their surroundings[6].

Traditional Knowledge is generally associated with biological resources and is invariably an intangible component of such a biological resource. Traditional knowledge has the potential of being translated into commercial benefits by providing clues/leads for the development of useful practices and processes for the benefit of mankind. Such clues/leads save time, money and investment of modern biotech and other industries into any research and product development[7]. However, no profits were generally shared to the local community who actually developed such a Traditional Knowledge.

Need for protecting Traditional Knowledge

One of the biggest threats to biodiversity and related traditional knowledge is ever increasingly bio-prospecting activities on behalf of the enthobotonists, pharmaceutical companies and others who wish to profit from the rich biodiversity and traditional knowledge in indigenous territories[8]. There are number of reasons which depict the need to protect the indigenous traditional knowledge; viz.

  1. To improve the livelihood of the indigenous communities holding the traditional knowledge: Traditional Knowledge is a valuable asset to indigenous and local communities who depend on traditional knowledge for their livelihood as well as to manage and exploit their local ecosystem in sustainable manner.
  2. To benefit the national economy: Traditional Knowledge is very much useful for developing novel products having commercial acceptability. Thus, it is essential for improving the economy of the economically developing countries like India.
  3. To conserve the environment: Indigenous communities are intelligent and made the agriculture sustainable through their various traditional cultivation practices. Thus, we can say that, traditional knowledge can create balance between the environment and the requirement of the mankind.
  4. To prevent biopiracy[9]: Biopiracy means the unauthorized extraction of biological resources and associated traditional knowledge without providing sufficient compensation of spurious inventions based on such knowledge.

Present Scenario   

Though TRIPS[10] Agreement has some provisions having the limited application to the protection of the traditional knowledge, there are no uniform norms regarding the protection of different types of traditional knowledge owned by the local communities. However, in India, in order to protect the traditional knowledge from being patented, provisions have been incorporated to the existing law to include anticipation of inventions by available knowledge including oral knowledge as one of the grounds for opposition and also for the revocation of any patent.

Further, by enacting the Biological Diversity Act, 2002, Government of India has addressed the concerns of access to collection and utilization of biological resources and knowledge by foreigners and sharing the benefits arising out of such access. Primary objective of the legislation is to protect the biodiversity and associated knowledge which has got its origin in India, against their use by either individuals or organisations without sharing the benefits arising out of such use and also to check biopiracy.

The Geographical Indications of Goods (Registration and Protection) Act, 1999 (GI Act) is another attempt by the Government of India to protect the geographical indications of our country. It could be interpreted that, the holders of the traditional knowledge in goods produced and sold using geographical indications can register and protect their traditional knowledge under the provisions of GI Act.

In addition to above mentioned statutory protection, Government of India has acknowledged the importance of documentation of traditional knowledge. In this regard, Traditional Knowledge Digital Library (TKDL) has been introduced to cover the traditional knowledge spread across various fields. It is presumed that, digitalization and documentation of traditional knowledge will prevent the patenting of such knowledge, which is already in the public domain.

India is the only country in the world to have set up an institutional mechanism to protect its traditional knowledge. TKDL enables prompt and almost cost-free cancellation or withdrawal of patent applications attempting to claim rights over the use of various medicinal plants relating to India’s traditional knowledge. TKDL is a unique tool that plays a critical role in protecting traditional knowledge of our country.

How to protect our Traditional Knowledge?

Many people have described India as a rich country, where poor people live. That, the richness is due to our intellectual powers, bio-diversity, traditional knowledge, Science & Technology manpower and our institutions, and a whole range of other attributes. However, our inability to create wealth and social good out of these resources has kept us poor. In the present world of knowledge-based competition, Intellectual Property Rights will emerge as a key strategic tool, and India is way behind the rest of the world and continuing illiteracy in the IPR will hurt us badly.

Incorporating strong systems on generation of IPR, its capture, documentation, valuation, protection and exploitation will need a massive thrust[11]. Thus, mere documentation of traditional knowledge will not help to share the benefits arising out of the use of such knowledge unless otherwise the same is backed by some strong mechanisms to protect the knowledge.

All the existing protective measures adopted are with keeping an economic object in mind. But what we actually need is to protect the traditional knowledge and to transfer such knowledge to the future generation, which will indeed encourage innovation. We should be adopting suitable ways to transfer such knowledge from one generation to the other.

This is possible by, only if we introduce the same to our education system forming a part of our academic curriculum. Such steps shall be taken right from the pre-primary school level.

References

[1] Medicinal properties of Neem, which are known to India since 5000BC got patented by a US based Company WR Grace vide US Patent No: 4946681 & 5124349

[2]Vishwas Kumar Chouhan, Dr., Protection of Traditional Knowledge in India by Patent: Legal Aspect, IOSR Journal of Humanities and Social Science, Volume 3, Issue 1 (Sep-Oct. 2012), pp 35-42

[3] Kala, C.P. (2012) Traditional ecological knowledge and conservation of ethno botanical species in the buffer zone of Pachmarhi Biosphere Reserve, Madhya Pradesh. Indian Institute of Forest Management, Bhopal, Madhya Pradesh pp 194 also see Turner, N. J., Ignace, M. B., & Ignace, R. (2000). Traditional ecological knowledge and wisdom of aboriginal peoples in British Columbia. Ecological applications, 10(5), 1275-1287

[4]Supra 2

[5]Gadgil, Madhav; Berkes, Fikret; Folke, Carl;, Indigenous Knowledge for Biodiversity Conservation, Ambio, Vol. 22, No. 2/3, Biodiversity: Ecology, Economics, Policy (May, 1993), pp. 151-156

[6]Pranab Kumar Ghosh, Dr., and Ms. Bijoy Laxmi Sahoo, Indigenous Traditional Knowledge, Orissa Review, January (2011), pp 65-70

[7]Tripathi, S.K., Traditional Knowledge: Its significance and implications, Indian Journal of Traditional Knowledge, Vol. 2(2), April 2003, pp. 99-106

[8]Vishwas Kumar Chouhan, Dr., Protection of Traditional Knowledge in India by Patent: Legal Aspect, IOSR Journal of Humanities and Social Science (JHSS), ISSN: 2279-0837, ISBN: 2279-0845. Volume 3, Issue 1 (Sep-Oct. 2012), PP 35-42 available at last accessed on December 8, 2016

[9] The practice of commercially exploiting naturally occurring biochemical or genetic material, especially by obtaining patents that restrict its future use, while failing to pay fair compensation to the community from which it originates.

[10] Trade-Related Aspects of Intellectual Property Rights, w.e.f January 1, 1995

[11]Raghunath Mashelkar, Reinventing India, Sahyadri Prakashan (2011), Pune