Protection of traditional knowledge bill – a failure

This piece of article is a review of the Protection of Traditional Knowledge Bill, 2016, which was introduced in the Indian Parliament as a Private Bill by Dr. Shashi Tharoor (Member of Parliament, Thiruvananthapuram). This analysis is done by Mr. 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.

There is no globally acknowledged demarcation for Traditional Knowledge. It usually denotes to those knowledge systems rooted in the traditional ethnicities of regional, indigenous, or local communities. These are orally passed from generation to generation. Considering the dynamic nature, lack of a proper definition and the difficulty in establishing the ownership or the geographical origin, as pointed out by Shri. Praveen Raj in his article, it is true that, the protection of traditional knowledge is a major concern for countries like India, which is enriched with large volume of traditional knowledge.

In spite of various instances of biopiracy of Indian traditional knowledge exposed in United States and Europe, the need for the protection of traditional knowledge has not become a serious topic for debate in India till now. In this regard, the effort made by Dr. Shashi Tharoor, Member of Parliament from Thiruvananthapuram (Former Under – Secretary General of the United Nations for Communications and Public Information) requires a big applause for placing a Traditional knowledge Bill on protection of traditional knowledge before the Indian Parliament.

Author in this article made an attempt to analyse and critically comment on above mentioned Billfor the protection of traditional knowledge.

The Protection of Traditional Knowledge Bill, 2016

The Protection of Traditional Knowledge Bill was introduced by Dr. Tharoor to provide protection, preservation, promotion and development of India’s Traditional Knowledge and for matters connected therewith or incidental thereto. According to Dr. Tharoor, traditional knowledge is neither an innovation nor held by any single person. Rather it is passed down and refined over several generations and thus may not be considered as ‘intellectual property‘. He argued for a parliamentary recognition to protect our traditional knowledge with a system of registration that identifies the traditional knowledge with its rightful custodians.

According to him State shall be the custodian of all traditional knowledge.Dr. Tharoor also highlighted the need of ensuring appropriate incentives for further research and development on our traditional knowledge. He also made an attempt to recognize the contribution of specific local communities in the development of the traditional knowledge by giving them certain rights, including the right to self-determination.The Traditional knowledge Bill was divided into 6 Chapters and 53 Sections, where the first chapter deals with the preliminary provisions of the Act; Second chapter deals with rights and ownership; third chapter deals with the constitution of national authority on traditional knowledge; fourth chapter deals with the constitution of State board of traditional knowledge; fifth chapter deals with procedures, TKDS, TKDL and functions of government; finally sixth chapter deals with miscellaneous provisions.

Observations on the Protection of Traditional Knowledge Bill, 2016

Defining traditional knowledge

Traditional knowledge is easier to comprehend than define. As in date, there is no universally accepted definition for traditional knowledge. In that context; Dr. Tharoor’s attempt to define the term traditional knowledge needs due appreciation. According to him traditional knowledge means;

knowledge and expression of culture, which may subsist in codified or oral or other forms, whether publically available or not, that is dynamic and evolving and is passed on from generation to generation, for at least 3 generations, whether consecutively or not, which is associated with group or groups who are maintaining, practicing or developing it in traditional cultural context and includes know-how, skills, innovations, practices, learning, medicinal preparations, method of treatment, literature, music, art forms, designs and marks but does not include any traditional knowledge covered by any law for the time being in force providing for its preservation, promotion, management or unauthorized commercial exploitation;

In a country like India, traditional knowledge is visible in two formats;

  • Knowledge which is preserved and practiced by certain communities specifically tribal groups OR particular institutions or families often located at specific territory of the nation. Such knowledge is passed down from generation to generation through a variety of traditional methods.
  • Knowledge, whose practice sustains the livelihoods of many persons scattered across the territory of India, which does not have a specific community or institution or family as custodian.

Thus, I am of the opinion that, the given definition has failed to classify the traditional knowledge appropriately.

Further, it is assumed that, the mandate of passing the knowledge for at least three generations seems to be for the purpose of registering the same under the provisions of the given Bill. There may not be documentary proofs to prove that, the knowledge is passed down three generations, specifically among the tribal community, since it was shared orally or through practical experience. Thus, I am of the opinion that, at least three generations may be omitted from the definition clause.

I strongly disagree with the view of Dr. Tharoor on excluding any traditional knowledge covered by any law for the time being in force providing for its preservation, promotion, management or unauthorized commercial exploitation. Considering the instances of biopiracy of India’s traditional knowledge, and significance of such knowledge, no doubt that, it needs a special attention. Thus, one should not differentiate the traditional knowledge on the basis of those covered under this Bill and already existing laws.

Hence, in my opinion, just like the provisions of the Competition Act, 2002 in regulating the commercial exploitation of intellectual property rights, provisions of Traditional knowledge bill shall also be in addition to, and not in derogation of, the provisions of any other law for the time being in force dealing with traditional knowledge.

Ownership and Rights

Who shall be the owner of a traditional knowledge? Whether, it is the State or the community who is actually practising based on such knowledge? According to Dr. Tharoor, either State Government or the Central Government shall be the custodian of the traditional knowledge which is derived or practised within its territorial jurisdiction.Instead of the term ownership, Honourable Member of Parliament used the term custodian. He further stated that, respective government reserves the right to transfer the custodianship.

I, slightly differ from his view of placing the State/Central Government as the owner/custodian of the whole traditional knowledge, which is derived or practised within its territorial jurisdiction. Respective governments shall be the owner of such knowledge, whose practice sustains the livelihoods of many persons scattered across the territory of India, and which does not have a specific community or institution or family as custodian. On the other side, the knowledge which is preserved and practised by specific community or institution or a family, then such community or institution or the family shall be the owner or custodian of such knowledge.

However, respective government shall act as the trustee of traditional knowledge for its preservation, protection and promotion, where it shall suo motu recognise the ownership of traditional knowledge of respective communities and giving an opportunity of public opposition in case of wrongly identified custodians of traditional knowledge. Provided, the onus of proof shall lie on such person or group of persons who are raising such objection. Strict guidelines shall be implemented in this regard. Either TKDL or TKDS facility or both shall be adopted for this purpose.

National Authorityor State Board for the protection of traditional knowledge

Are you confident that, A National Authority on Traditional Knowledge comprising of 12 members and respective State Board on Traditional Knowledge comprising of 10 members each as envisaged under the Bill will be capable enough to preserve, protect and promote the entire traditional knowledge, which is derived and practiced within the territorial jurisdiction of India?No. The proposed system will never ever help the actual cause. It will be just like any other Board/Authority, where the nominees of ruling political parties will find a place.

If you are really interested to preserve, protect and promote the traditional knowledge of India and to safe guard the same from its misappropriation by foreigners or multinational corporations, then the given Bill is not the right solution. We should be adopting a different strategy altogether to protect the interest of India’s traditional knowledge.

Quoting from the preamble of the Bill, we should adopt different – different strategies to;

Preserve:Functions of the National Authority OR State Board shall be only limited to identifying the traditional knowledge and marking the same to the right community (Identifying the right custodian/owner).

Protect: There shall be a separate autonomous institution having quasi-judicial powers like that of Competition Commission of India or Intellectual Property Appellate Tribunal to enforce the provisions in connection with the protection of traditional knowledge. Any dispute in connection with the misappropriation of traditional knowledge shall be heard by such Commission on Indian Traditional Knowledge.

Promote: Promoting traditional knowledge is altogether a different activity. Thus, there shall be a different autonomous institution consisting of qualified personals consisting of scientists, professionals from finance, marketing, law etc. constituted for the promotion of the traditional knowledge addressing the scope of research activities as well as the economic exploitation. This wing shall function with a profit motive and the income generated by exploiting the traditional knowledge shall be proportionately shared among the custodian/owners of such knowledge as identified by the National Authority or the State Board. Further, this wing shall act as a bridge between the indigenous people who is actually practicing the TK and different institutions formed under the Traditional knowledge bill for the protection of traditional knowledge. It shall also carryout various awareness programs on the rights of the TK owners and shall act as a trustee of the Indian traditional knowledge for the benefit of the actual TK owners.

Role of WIPO in protecting traditional knowledge

Last, but not the least. It was mentioned in the Statement of Objects and Reasons of the on protection of traditional knowledge bill that; traditional knowledge is neither an innovation nor held by any single person. Rather it is passed down and refined over several generations and thus may not be considered as ‘intellectual property’. 100% I am agreeing to this observation. However, in the very next paragraph Dr. Tharoor’s observedthat;

Even as the World Intellectual Property Organization (WIPO) holds consultations to define and provide guidelines for traditional knowledge and its management, India must appropriate all its traditional knowledge to ensure that any application of it is accompanied with recognition of its original custodians.

What is the role of World Intellectual Property in protecting traditional knowledge?

WIPO is the global forum for intellectual property services, policy, information and cooperation.Mission of WIPO is to lead the development of a balanced and effective international intellectual property system that enables innovation and creativity for the benefit of all. As we know, the present international system for protecting intellectual property was fashioned during the age of industrialization in the West and developed subsequently in line with the perceived needs of technologically advanced societies, and as we discussed earlier traditional knowledge lies outside the intellectual property domain.

Thus, in my opinion WIPO has nothing to do with traditional knowledge and if they are conducting consultations on traditional knowledge to frame some guidelines; then it is purely for protecting the interests of the developed countries where they can further research on the traditional knowledge derived and practised at developing countries like India and to exploit its commercial viability. Countries like India which is vested with sovereign powers under the Constitution, shall neither fall prey to the commercial interest of the developed countries nor accept and acknowledge the policies of WIPO, which is against its national interest. Instead, it shall frame policies and regulations in the interest of its indigenous people and the TK.

In these contexts, I am of the opinion that, the present bill on the protection of traditional knowledge as proposed by Dr. Shashi Tharoor has failed to address the real problem in connection with Indian traditional knowledge.

Thus, I conclude that, the Protection of Traditional Knowledge Bill, 2016 is a failure.