This article on “International developments relating to Traditional knowledge protection” was written by Nayanika Dutta, an intern at Legal Upanishad.
Traditional knowledge refers to information gained by traditional intellectual activities such as skills, practice, and inventions. This article will focus on the meaning of traditional knowledge, its importance and scope, and most importantly its developments and protection. Traditional knowledge protection is becoming increasingly important, and the role of global bodies in ensuring such preservation is critical. In this article, we will discuss the protection of Traditional knowledge under IPR as well as the role of the international bodies regarding TK and international developments.
Traditional knowledge is crucial in every area, yet there are no legal safeguards in place to assure its conservation. Thus various issues often emerge while protecting the TK like whether it is possible to obtain protection under intellectual property law or what can be done to guarantee that traditional knowledge is protected. Its relevance in development should be promoted.
Meaning of Traditional Knowledge
Traditional knowledge relates to indigenous and local groups’ knowledge, inventions, and customs from all over the world. It is defined as a collection of knowledge accumulated through centuries by a community of people living in close proximity to nature. Traditional knowledge is mostly practical, especially in domains such as agriculture, fishing, health, horticulture, forestry, and general environmental management. Since the establishment of the Convention on Biological Diversity (CBD) in1992, the preservation of traditional and indigenous knowledge under intellectual property rights (IPRs) has risen in popularity. (Introduction)
Importance and scope of traditional knowledge
The value of traditional knowledge (TK) to its creators and the global society at large, as well as the need to promote, maintain, and preserve it, have garnered increasing acknowledgment in international fora. Traditional knowledge has the potential to contribute significantly to long-term development. This knowledge is vital not just to individuals who rely on it in their everyday lives, but also to contemporary business and agriculture.
The World Intellectual Property Organisation (WIPO) formed an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore in 2000, and it held its inaugural meeting in April 2001. TK comprises a variety of types and functions of information produced in the past but is subject to modern refinement and adaption. It is manifested in a variety of recorded and undocumented forms and depending on its prospective or present usage, it may have monetary worth. However, the problems in defining TK should not deter ongoing studies on the topic at the national or global level. (Anand, 2015)
Traditional knowledge protection
Traditional knowledge holders frequently face a variety of challenges. If it is not preserved, the very existence of knowledge may be jeopardized, as well as the culture of communities. Several social and environmental variables, such as encroaching on contemporary lifestyles, migration, and so on, have damaged traditional methods of preserving and passing on knowledge to future generations. Traditional knowledge holders are not valued or respected for their expertise. Traditional wisdom is frequently ignored in the fast growth of science and technology. Thus, Traditional knowledge must be preserved and treated with the utmost respect.
While significant efforts are being made to develop internationally harmonized approaches, a scenario for the future of Traditional knowledge protection, it is not impossible to imagine negotiations on the subject breaking down due to maneuvering by developed countries, widening differences among developing countries, or a realization among developing countries that the economic support is not as high as they had been led to believe. Breakdowns at the worldwide level, on the other hand, would not rule out advancements at the national and provincial levels. (What is Traditional Knowledge in IPR | IPTSE)
Traditional knowledge protection under IPR
The safeguarding of traditional knowledge is perhaps the most important part of IPR. While there have been various disputes concerning intellectual property protection, there are also a number of obstacles to overcome. For example, determining the Intellectual Property Rights under which traditional knowledge can be protected is problematic. It’s also difficult to see how customary knowledge can be protected indefinitely, given that IP protection only lasts for a brief duration. Traditional knowledge protection was created to address the problem of biopiracy, which occurs when traditional knowledge is utilized for commercial purposes without the consent of the indigenous group concerned. (What is Traditional Knowledge in IPR | IPTSE)
UNEP/CBD, WIPO, UNCTAD, and the WTO dealt with TK and intellectual property issues. These organizations have often worked together in the past. WIPO and UNEP, for example, performed collaborative case studies on the part of IPRs in sharing benefits from the utilization of traditional knowledge and associated biological resources, while FAO and the CBD Secretariat often collaborate on agricultural topics of mutual concern. Of course, the roles of these various groups and fora varied greatly. Although UNCTAD has hosted a workshop on Traditional Knowledge, WIPO, WTO, FAO, and the CBD may offer the platform for international discussions, no mediations are presently taking place under its authority. (Anand, 2015)
India’s traditional knowledge protection
The international legal community has a severe issue in the new millennium in establishing a new international legal norm for addressing the problem of IP protection created by technological advancements. Traditional knowledge was viewed as awareness in the public domain for free utilization, with little regard for the community’s efforts to protect and promote it. The country’s biodiversity and TK are inextricably linked. It is a non-tangible component of the asset. TK has the potential to be turned into a commercial opportunity, offering important leads for product and process development. In the global economy,
Traditional Knowledge is precious. Biotech companies, as well as agriculture, rely on it. Traditional communities rely on it for their sustenance and medical treatment. Important for environmental protection and sustainable development, as well as biodiversity management, the conservation of TK is tied to the country’s food security. (Anand, 2015)
Unlike other types of intellectual property rights, India does not have a substantive act or law to protect traditional knowledge, but other IP acts do, such as “The Patents Act of 1970, Section 25 and Section 64, which lists traditional knowledge as one of the grounds for revocation of a patent application. The Copyright Act of 1957 does not specifically mention protecting sociocultural, poetic, or creative work or folk tales, but Section 31A does.” However, Copyright protection is only for a specific timeframe and requires certain criteria to be met, so TK security under this IP is limited. (Singh, 2018)
Strategy for the traditional knowledge protection
The community, as well as the provincial, national, and global components of IP rights, must be included in a traditional knowledge protection plan. Furthermore, systems and practices to safeguard traditional knowledge must provide unique traditional knowledge bearers with fair and independent evaluation. Addressing the economic implications of growing the knowledge base, as well as ensuring that such security can indeed be accessible, understood, and given by knowledge holders, is equally important. The primary focus of the protection should be on recognizing the rights of the genuine holders of information and preventing the unlawful addition of rights by other parties. (What is Traditional Knowledge in IPR | IPTSE)
Licensed examiners at the United States Patent and Trademark Office (USPTO) can now access the Database of Traditional Knowledge, owing to the Indian government’s consent in November 2009. (Anand, 2015)
Thus, TK is the heart of a community and an indivisible part of their heritage, which they acquired from their forefathers. As a result, there is a pressing need to safeguard traditional knowledge. At both the national and international levels, actions must be done. However, there is a compelling need for international action because no single country is capable of providing such security. At the international level, efforts have been made to instill an access and benefit-sharing system, a sui generis legal protection system, legal security under intellectual property law, and the public’s interest.
Traditional knowledge can be safeguarded in both ‘positive’ and ‘defensive’ protection in the intellectual property system. It means enacting laws, rules, and regulations, as well as royalty access and benefit-sharing agreements.
On the other hand, ‘defensive protection’ involves preventing third parties from obtaining illegitimate intellectual property rights over Traditional Knowledge through the purchase of IP. Traditional knowledge protection poses several policy concerns, including the goals and mechanisms of such protection, as well as the impact and consequences for those who will benefit from it. Because there are significant discrepancies in the description of the particular topic, the justification for security, and the methods for attaining its goals, such problems are exceedingly complicated. The ethical, environmental, and socioeconomic challenges surrounding TK should all be addressed comprehensively manner.
Several technical concerns have also several technical concerns that have yet to be overcome, such as the question of communal ownership and the methods for enforcing rights. However, it’s important to understand the boundaries and ramifications. In particular, a balance must be struck between the protection of such information and the encouragement of its use.
With time, the need to conserve traditional knowledge has grown, particularly in order to prevent unlawful and commercial exploitation of such information. It is critical to safeguard original inhabitants from such extinction while also assisting them in the preservation of historic rituals. With industrialization and multinational cooperation and coordination becoming everyday occurrences, protecting and establishing traditional knowledge has never been more important.
The preservation of TK must also encourage its widespread and productive usage. The construction of any traditional knowledge protection regime should be based on a clear understanding of the goals intended and the suitability of the tool used to attain them. Therefore, the issue of TK conservation should not obscure the reality that preserving and using TK necessitates first and foremost supporting the survival and enhancement of such communities’ living standards in their culture and local context. International forums, on the other hand, have not been successful in enacting appropriate safeguards for TK. The system is uneven, and change is required to ensure that traditional knowledge is protected.
The necessity of the hour is to instill informal norms that will allow for the efficient implementation of traditional knowledge protection. In the future Farmer, Rights can be implemented at the national level and also thereby ensuring that individuals from indigenous and local groups are involved in the definition and execution of any framework for the conservation of TK.
- Anand, N. (2015). International Developments Relating To Protection Of Traditional Knowledge. academike.
Introduction. (n.d.). Retrieved from cbd.int: https://www.cbd.int/traditional/intro.shtml
- Singh, V. (2018). India: IPR Vis- à- Vis Traditional Knowledge.
Traditional-Knowledge-backgrounder-FINAL.pdf. (n.d.). Retrieved from un.org: https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2019/04/Traditional-Knowledge-backgrounder-FINAL.pdf
- What is Traditional Knowledge in IPR | IPTSE. (n.d.). Retrieved from https://iptse.com/: https://iptse.com/what-is-traditional-knowledge-and-how-to-protect-it/