Traditional Knowledge Protection: An Indian Prospective

DESIDOC Journal of Library & Information Technology, Vol. 32, No. 3, May 2012, pp. 240-248 © 2012, DESIDOC Traditional Knowledge Protection: An Indian Prospective Mangala Hirwade* and Anil Hirwade** *RTM, Nagpur University, Nagpur-440 015 E-mail: **National Institute of Intellectual Property Management, Civil lines, Nagpur-440 001 E-mail: ABSTRACT Traditional knowledge is an important element of the intellectual and cultural heritage of indigenous peoples. It reflects their social and historical identity and significantly contributes to the future well-being and sustainable development. This paper analyses the features of indigenous knowledge, protection of traditional knowledge in India and its benefits, biopiracy issues, and Indian experience. It further discusses the national and international initiatives and Traditional Knowledge Digital Library, its benefits and outcomes against biopiracy. Keywords: Traditional knowledge, indigenous knowledge, biopiracy, traditional knowledge digital library, intellectual property rights 1. INTRODUCTION Traditional knowledge has got a lot of attention nowadays due to its utility all over the world. It has become a focus in international forums. The protection under intellectual property rights (IPRs) of traditional and indigenous knowledge (TIK) has received growing attention since the adoption of the Convention on Biological Diversity (CBD) in 1992. Most indigenous people have traditional songs, stories, legends, dreams, methods and practices as means of transmitting specific human elements of traditional knowledge. Sometimes it is preserved in artifacts handed from father to son or mother to daughter. The traditional knowledge or indigenous knowledge can be found in multitude field such as nutrition, agriculture and fisheries, human health, veterinary care, handicrafts, performing arts, folk songs, religion and astrology, and many other day to day customs and practices. The World Bank1 has stated the following features of indigenous knowledge • • • Indigenous knowledge is local knowledge • • • It provides problem solving strategies for communities It is commonly held by communities rather than individuals, and It is tacit knowledge and therefore difficult to codify. It is embedded in community practices, institutions, relationships, and rituals. Knowledge is a broader concept which might contain different facets in it. Traditional knowledge is one of the aspects of knowledge in its totality. According to Berkes,2 Traditional knowledge is a cumulative body of knowledge and beliefs, handed down through generations by cultural transmission, about the relationship of living beings (including human) with one another and with their environment. Further, traditional knowledge is an attribute of societies with historical continuity in resource use practice; by and large, these are non-industrial or less technologically advanced societies, many of them indigenous or tribal” 2. PROTECTION OF TRADITIONAL KNOWLEDGE It is the basis for local-level decision making in agriculture, health care, food preparation, education, natural-resource management, and a host of other activities in communities, The protection of traditional knowledge is important for communities in all countries, particularly in developing and least developed countries. Traditional knowledge plays an important role in the economic and social life of those countries. Placing value on such knowledge helps strengthen cultural identity and the enhanced use of such Received 09 December 2011, online published 18 May 2012 240 It is unique to every culture or society knowledge to achieve social and development goals, such as sustainable agriculture, affordable and appropriate public health, and conservation of biodiversity. the public. Practically, all types of intellectual property could, to some extent, be used for protection of traditional knowledge. Traditional knowledge can be protected under various modes of IPR, viz. copyright, patents, plant varieties, industrial designs, trademarks, trade names, geographical indications, and repression of unfair competition. Two forms of IP-related protection of traditional knowledge have been developed3: (a) Positive Protection Positive protection gives traditional knowledge holders the right to take action or seek remedies against certain forms of misuse of traditional knowledge. It 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 sui generis laws. (b) Defensive Protection Defensive protection deals with safeguarding against illegitimate IP rights taken out by others over Traditional knowledge subject matter. It seeks to prevent others from using or securing IPR over traditional knowledge. For 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. Disclosure is a tool to stop the granting of patents, or the revocation of granted patents. In IP law, patents cannot be granted or can be invalidated if it can be shown that there exists “prior art”: Knowledge in the public domain that is equivalent to the process or product for which a patent is sought. Disclosure puts the knowledge into the public domain. It does not stop use of the traditional knowledge or associated resource - only the monopolistic use of the knowledge or associated resource for the 20 years of the patent. Various suggestions to extend protection knowledge, innovations, and practices include4: to • Documentation of traditional knowledge: It is one means of giving recognition to knowledge holders. But mere documentation may not enable sharing of benefits arising out of the use of such knowledge, unless it is backed by some mechanism of protecting the knowledge. • Registration: It deals with creating a system for registration of innovations by the inventor Traditional knowledge holders. • Development of contracts: Contacts with biotech or other companies for commercialisation, transfer of technology, benefit sharing, etc; • Grant of IPR under existing IPR systems: Intellectual property refers to creations and innovations of the human mind, such as inventions, literary and artistic works, symbols, names, images and designs. IP system protects such creations and innovations from unauthorised use, including unauthorised copying, adaptation, commercial use, and communication to DESIDOC J. Lib. Inf. Technol., 2012, 32(3) • Development of a sui generis system: Sui generis literally means ‘of its own kind’ or ‘unique’. It consists of a set of nationally recognised laws differing from country to country. A sui generis system might consist of some standard forms of IP protection combined with other forms of protections. It is a system that can create legal rights associated with traditional knowledge and promote its acce (...truncated)