INTRODUCTION
Traditional Knowledge (‘TK’) is an organic, dynamic, and holistic body of knowledge. The World Intellectual Property Organisation (‘WIPO’) defines it as the knowledge that is developed, sustained, and carried on intergenerationally within a community, often entrenched in its cultural or spiritual identity. The immutable characteristics of TK are that it possesses origins that are ancient and are often passed on orally, i.e., not through the written medium. This dynamic and oral nature of TK increases its susceptibility to misappropriation and poaching. Further, WIPO states that TK may be understood in a general as well as narrow sense.
TK generally refers to the material knowledge and its intricacies along with the supplementary and ancillary traditional cultural expressions, including the symbols and practices involved. Upon a narrow cleaving of the meaning, TK refers to the ‘know-how’ resulting from intellectual activities in a traditional context. This includes innovations, mode of practice, techniques involved, etc. TK is developed and scrutinized over hundreds of years and hence gives insight into the wealth of information that economizes the research and development sectors.
By virtue of its nature, TK remains vulnerable to exploitation by transnational corporations. Owing to the lack of documentation which is compounded by the social vulnerability of the communities developing TK, providing Intellectual Property Rights (‘IPR’) to TK becomes a challenge. As such, it is bereft of protection under the current Intellectual Property (‘IP’) system. The organic and cultural nature of TK makes it difficult to define and this alone vitiates, to a great degree, the ability of most States to legislate on the matter.
The groups of indigenous communities which cultivate this knowledge rarely get recognition or royalty from the corporations which harvest TK for commercial use. Corporations see TK as a weakly guarded treasure of data and innovation, which they reap the benefits of with little to no threat of prosecution or penalty.
One way by which TK is misappropriated is by way of ‘Biopiracy’. Biopiracy is the illegal appropriation of natural resources (plants, microorganisms, humans, etc.) and the TK that accompanies the resources. It is the illegal patenting of nature and centuries of TK supporting it.
Consequent to the aforementioned vulnerabilities, WIPO members established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (‘ICG’) to establish principles in furtherance of providing due recognition and protection to TK. This article will discuss the various avenues for the protection of TK under national and international IP protection.
TRADITIONAL KNOWLEDGE DIGITAL LIBRARY
The Traditional Knowledge Digital Library (‘TKDL’) is an initiative by the Indian Government to create a digital repository of TK in India. This initiative was set up in 2001 as a collaborative effort between the Council of Scientific and Industrial Research (CSIR) and the Ministry of Ayush.
The objective of TKDL is to protect TK in India through digital documentation of it. This not only helps in providing recognition to communities whose livelihood depends on TK but it also creates an accessible forum to fight illegal patents and biopiracy.
The TKDL has impacted the way global jurisdictions approach biopiracy and patenting. Through signed agreements with international patent office’s such as European Patent Office (‘EPO’), United Kingdom Trademark & Patent Office (‘UKTPO’), and the United States Patent and Trademark Office (‘USPTO’), the Government of India has given access to patent examiners to refer to TKDL while granting patents. This prevents harm to TK of Indian communities owing to an information gap.
The detrimental information gap has been further bridged by TKDL as it has completed the mammoth task of transcribing terabytes of data derived from Indian traditional practices like Ayurveda, Unani, Siddha, and Yoga.
TKDL has further created the novel classification mechanism: Traditional Knowledge Resource Classification (‘TKRC’). The TKRC model adopted by India is based on WIPO’s International Patent Classification (‘IPC’). The Indian model for classification consists of more than 27,000 subgroups for Yoga, Ayurveda, Unani, and Siddha and these classifications are essential for extracting relevant information.
The IPC, which is an essential tool in enabling effective search and examination of patent applications is undergoing reforms due to the TKRC. The IPC divides technology into eight sections with thousands of subdivisions, but this list fell short of recognizing medicinal plants. As until 2005, only one subgroup of medicinal plants was recognized by the IPC which made examination of patents difficult when it came to medicine-based patent applications.
This inadequacy was addressed by India to the IPC’s Committee of Experts. India, China, the European Union, Japan, and the United States established the Traditional Knowledge Classification Task Force, which led to a rapid rise in the number of subgroups relating to medicinal plants under IPC. The number of subgroups increased to 207 bringing a long-overdue and critical change in the international patent system. Another landmark for TKRC was the inclusion of its 27000 subgroups to the IPC.
TYPES OF PROTECTION TO TRADITIONAL KNOWLEDGE
There are different forms of protection provided to TK. However, the three major approaches of protective mechanisms are defensive protection, positive protection, and benefit-sharing.
1. Defensive Protection
Defensive protection is a strategy of preventing the grant of illegal patents over TK. This approach entails the large-scale documentation of TK. This defensive mechanism restricts corporations from monopolizing the TK by defining and recognizing TK as an unpatentable body of knowledge. Additionally, the control and oversight of how TK is disseminated to the public is also included under defensive protection strategies as it controls how companies incorporate TK into their innovations.
2. Positive Protection
Positive protection also aims to prevent the misuse of TK by corporations; however, this is done by ensuring an uninterrupted enjoyment of the fruits of TK by the concerned community or group. A huge aspect of positive protection is compounding the benefits of IP protection to TK by way of introducing benefit-sharing provisions. This ensures that the maximum benefit of TK goes to the community that cultivates and conserves such TK.
3. Benefit-Sharing
In furtherance to the aforementioned, the Convention on Biological Diversity (‘CBD’) encourages benefit-sharing from the usage of TK with not only the respective local communities but also with the society at large. It is pertinent to note that such benefit sharing is widely affected by how the Governments collaborate with the local and indigenous communities and other socio-cultural aspects.
LEGISLATIVE PROTECTION TO TRADITIONAL KNOWLEDGE
The two major aspects that need balancing when it comes to enforcing or creating legislative protection of TK as an IP are rights of the indigenous communities that has cultivated the TK and innovation for benefit sharing of the TK to the general public.
In the Indian IP regime, the mention of TK can be only found in the Patents Act, 1970 (‘Patents Act’). Section 3 (p) of the Patents Act explicitly states that any innovation that arises out of TK would not be considered as an ‘invention’, hence making them ineligible for patent protection.
Moving forward, Sections 25(1)(k), and 25(2)(k) states that a pre-existing TK would amount to a valid opposition to a patent grant. This allows for a pre-grant defensive mechanism against the misappropriation of TK. On the other hand, Section 64 (1)(q), stipulates a post-grant defence mechanism against exploitation of TK.
The aforementioned regime under the Patents Act is made actionable through the efforts of the TKDL and TKRC as in the absence of documentation of TK, the same remains vulnerable.
On the matter of balancing the two components surrounding TK, the Biodiversity Act, 2002 (‘Biodiversity Act’) comes into play. Section 2 (a) of the Biodiversity Act states that benefit claimers are referred to as those who hold knowledge of biological resources, which would include cultivators and conservators of TK.
Further, provisions such as Section 6 (2) of the Biodiversity Act, add another layer of protection to TK by stating that prior permissions shall be sought in applications for IPR on any invention that is, ‘based on any research or information on a biological resource obtained from India’. This includes innovations based on TK and further creates scope for benefit sharing.
In addition to the above, the National Biodiversity Authority (‘NBA’) sets out to specifically ensure equitable sharing of benefits on mutually agreed terms between the persons seeking approval, the benefit claimers, and local bodies. These measures are used to restrict access to biological resources and related knowledge by foreign companies to check biopiracy.
The Biodiversity Act provides a safety net by setting up a system where benefits from the commercial use of TK have to be shared with the people responsible for creating, refining, and using this knowledge under Section 21 of the Biodiversity Act.
The Biodiversity Act also stipulates the inception of Biodiversity Funds at the National level under Section 27, the State level under Section 32, and the local level under Section 43. These funds help to receive money from individuals or organisations who access and utilize biological resources and related TK. The Biodiversity Act also sets up a Property Rights Framework which is stringent on the question of access to biological resources from the outside.
The most notable application of the balancing of two components can be observed in the Jeevani drugs instance. Herein, the rights of the Kani Tribe of Kerala were balanced with the rights of the Tropical Botanical Garden Research Institute. The institute was developing the plant of Jeevani for energy-boosting. The use of the fruit for the reduction of fatigue was developed over the years by the Kani Tribe. The patent was granted to the Tropical Botanical Garden Research Institute and revenue of 50% was to be shared with the Kani Tribe.
INTERNATIONAL LAW AND TK PROTECTION
TK, as a matter, is a part of the international discourse in many major international bodies such as the CBD, the TRIPS Council, and the previously mentioned IGC.
The CBD is one of the leading international conventions which has recognized TK and made actionable additions to the international fora on the matter of protection of TK as an IP.
Article 8(j) of the CBD mandates that the involved parties maintain knowledge, innovations, and practices of indigenous communities and increase their involvement and approval to protect the rights of such communities and promote equitable benefit sharing whenever TK is being used by entities other than originating communities.
Article 10(c) of CBD states that parties should “protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements” which promotes the conservation and sustainable use of biological resources.
Moving forward, Article 15.5 of CBD mandates prior informed consent where access to genetic resources is required. TK can be highly valuable in identifying sources of products derived from genetic resources. It is pertinent to note that Article 8(j) of the CBD states that wider application of indigenous and local communities’ knowledge, innovation, and practices should take place with the approval and involvement of its holders. Therefore, Article 8(j) shall be read in conjunction with Article 15.5.
Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’), although being the leading authority on IP protection, has not laid out a comprehensive scheme for TK protection. Article 27.3(b) of the TRIPS Agreement does touch upon the patentability and/or non-patentability of plant and animal inventions; however, it fails to take into account TK and its vulnerabilities. The TRIPS Council is currently engaged in a review discussion on the matter of traditional knowledge in the context of Article 27.3(b) of the TRIPS Agreement.
AMLEGALS REMARKS
TK is unequivocally the backbone of indigenous communities who are otherwise deprived of economic and industrial progress. It is also a means of promotion and protection of a country’s heritage and history. The need for maintenance of the rights of indigenous groups, cultivators of TK, and those who wish to build upon TK to render it to the greater citizenry is undeniable.
A comprehensive scheme that regulates and protects TK is conspicuously absent from the Indian regime. This absence is a testament to how our society responds to the needs of persecuted and vulnerable groups the least. Ad-hoc protection is available to TK under domestic and international regimes; however, the application of such incomprehensive provisions could harm the socio-economic harmony of the nation.
The TKDL, however, is the saving grace of India’s TK reserves. Not only has the TKDL acted as a shield to TK, it has also set in stone a benchmark solution to the global issue of regulating TK. WIPO has celebrated TKDL as a novel solution that is to be implemented in other jurisdictions.
– Team AMLEGALS, assisted by Ms. Kashish Gupta (Intern)
For any query or feedback, please feel free to get in touch with chaitali.sadayet@amlegals.com or mridusha.guha@amlegals.com.
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