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Intellectual Property and Traditional knowledge

Written by: Juhi Chowdhary - I am studying in the 5th year of the 5 year B.B.A. LL.B. course at Symbiosis Law School
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  • Traditional knowledge is a part of the identity of most indigenous communities. The knowledge systems that comprise traditional knowledge are an essential ingredient in achieving sustainable development. Furthermore it is important to preserve the social and physical environment of which the traditional knowledge is an integral part. Attempts to exploit traditional knowledge for industrial or commercial benefits may lead to prejudicial misappropriation of the same from its rightful holders. Hence it becomes pertinent to develop ways and means of protecting and nurturing traditional knowledge thereby ensuring sustainable development compatible with the interests of the traditional knowledge holders.

    What is traditional knowledge?

    The concept of traditional knowledge is too varied to have a single definition as such a definition would be prejudicial to the various forms of knowledge that are held by traditional communities. No superficial legal definition will sufficiently encompass the complex social and legal systems that sustain traditional knowledge within the original communities. Nonetheless it is very necessary to arrive at certain demarcating standards defining traditional knowledge if such knowledge is to be protected. The most practical method of protection is the prevention of unauthorized use by third parties beyond the traditional circle. This form of protection focuses on the use of any indigenous knowledge as technical, ecological, scientific, medical or cultural by a traditional community.

    The demarcating standards in this case are:
    # The content or substance of the knowledge.
    # The use of such knowledge.
    # The nature of the user

    Some examples of traditional knowledge are:
    # Use of plao-noi by the Thai traditional healers to treat ulcers.
    # Use of the Ayahuasca vine by Western Amazonian tribes to prepare various medicines.
    # Use of hoodia cactus by the San people to stave off hunger while outhunting.
    # Sustainable irrigation through water systems such as the aflaj in Oman and Yemen and the qanat in Iran

    Furthermore knowledge is not rendered traditional due to antiquity but due to the fact that it has been developed, sustained and passed on within a traditional community, and is passed between generations, sometimes through specific customary systems of knowledge transmission. Hence it is the relationship of the knowledge with the community that makes it traditional.

    Why should traditional knowledge be protected?

    Traditional knowledge holders face various difficulties. In some cases, the very survival of the knowledge is at stake, as the cultural survival of communities is under threat. External social and environmental pressures, migration, the encroachment of modern lifestyles and the disruption of traditional ways of life can all weaken the traditional means of maintaining or passing knowledge on to future generations. There may be a risk of losing the very language that gives the primary voice to a knowledge tradition and the spiritual world-view that sustains this tradition. Either through acculturation or diffusion, many traditional practices and associated beliefs and knowledge have been irretrievably lost. Thus, a primary need is to preserve the knowledge that is held by elders and communities throughout the world. Another difficulty facing traditional knowledge holders is the lack of respect and appreciation for such knowledge. For example, when a traditional healer provides a mixture of herbs to cure a sickness, the healer may not isolate and describe certain chemical compounds and describe their effect on the body in the terms of modern biochemistry, but the healer has, in effect, based this medical treatment upon generations of clinical trials undertaken by healers in the past, and on a solid empirical understanding of the interaction between the mixture and human physiology. Thus, sometimes the true understanding of the value of traditional knowledge maybe overlooked if its scientific and technical qualities are considered from a narrow cultural perspective. With the gradual recognition of the value of traditional knowledge and an exponential growth in the use of traditional knowledge products the greatest threat against it is that of usurpation over-exploitation by commercial entities in derogation of the rights of the original holders.

    How should traditional knowledge be protected?

    Traditional knowledge should be afforded effective protection especially in developing and underdeveloped countries. Such protection should primarily be with regards to, firstly, the recognition of the rights of the original traditional knowledge holders and secondly, the unauthorized acquisition of rights by third parties over traditional knowledge. Due to the prevailing trends of globalization a great degree of international coordination and cooperation is necessary to effectively protect and develop traditional knowledge and any such protective strategy needs to consider the community, national, regional and international dimensions. Further the mechanisms sought to be implemented with regards to traditional knowledge must give subjective consideration to the original holders of the knowledge. Economic aspects of development need to be addressed by such mechanisms. Most importantly such protection should be affordable, understandable and accessible to traditional knowledge holders.

    Systems of traditional knowledge protection

    There are two forms of intellectual property related protection systems with regards to traditional knowledge. They are:
    # Positive protection, i.e. giving traditional knowledge holders the right to take action or seek remedies against any misuse of traditional knowledge. Any system of positive protection of traditional knowledge must provide for:
    Recognition of value and promotion of respect for traditional knowledge systems.
    Responsiveness to the actual needs of traditional knowledge holders.
    Repression of misappropriation of traditional knowledge and other unfair and inequitable uses.
    Protection of tradition based creativity and innovation.
    Support of traditional knowledge systems and empowerment of traditional knowledge holders.
    Promotion of equitable benefit sharing from use of traditional knowledge.
    Promotion of the use of traditional knowledge for a bottom up approach to development.

    # Defensive protection, i.e. safeguarding against illegitimate intellectual property rights acquired by third parties over traditional knowledge. Any system of defensive protection of traditional knowledge must provide for:
    The criteria defining relevant prior art apply to the traditional knowledge.
    A mechanism to ensure that the traditional knowledge constituting prior art is available and accessible to search authorities.
    It is suggested that these two approaches should be undertaken in a complementary way as a comprehensive approach to protection of traditional knowledge is unlikely to rely totally on any one form.

    Legal concepts for the protection of traditional knowledge

    Certain other legal concepts for traditional knowledge protection are:
    # Prior Informed Consent: As per this principle traditional knowledge holders should be fully consulted before third parties use their knowledge.
    # Equitable Benefit Sharing: This principle prescribes the balancing of the interests of the right holders and the general public.
    # Unfair Competition: Unfair competition means any act of competition contrary to honest practices in industrial or commercial matters and includes various acts that mislead the public or cause confusion. This principle allows for action to be taken against false or misleading claims that a product is authentically indigenous, or has been produced or endorsed by, or otherwise associated with, a particular traditional community.
    # Patents: When practitioners innovate within the traditional framework, they can use the patent system to protect their innovations.
    # Distinctive signs: such signs include trade marks, collective marks, certification marks and geographical indications. Traditional signs, symbols and terms associated with traditional knowledge may be protected as distinctive marks.
    # Customary laws: Customary laws, protocols and practices are the ones which define how traditional communities develop, hold and transmit traditional knowledge.

    Certain non IPR mechanisms of traditional knowledge protection

    Traditional knowledge has been protected by certain mechanisms which are beyond the domain of intellectual property. Such mechanisms are:
    # Environmental: Concluded in 1994, the UN Convention to Combat Desertification provided for the protection of traditional knowledge in the ecological environments as well as the sharing of benefits arising from any commercial utilization of this TK
    # Health: The World Health Organization has recognized the relevance of traditional knowledge in the field of medicine as a source of primary health care in the Primary Health Care Declaration of Alma Ata.
    # Trade and Development: The Doha Declaration adopted by the World Trade Organization in the Doha Ministerial Conference, in 2001, instructed the TRIPS Council to examine issues regardingthe protection of traditional knowledge.
    # Food and Agriculture: The International Treaty on Plant Genetic Resources for Food and Agriculture provides for the recognition of farmers rights and the protection of traditional knowledge relevant to plant genetic resources for food and agriculture.

    The call for protection of TK against misuse or misappropriation raises deep policy questions and practical challenges alike. The changing social environment, and the sense of historical dislocation, that currently affect many communities may actually strengthen resolve to safeguard traditional knowledge for the benefit of future generations. Just as the technological value of traditional knowledge is increasingly recognized and its potential realized, the challenge is to ensure that the intellectual and cultural contribution of traditional communities is appropriately recognized. This means taking greater account of the needs and expectations of traditional knowledge holding communities. Its traditional qualities and frequent close linkage with the natural environment mean that traditional knowledge can form the basis of a sustainable and appropriate tool for locally based development. It also provides a potential avenue for developing countries, particularly least-developed countries, to benefit from the knowledge economy.

    The following actions could be taken to ensure the effective protection of traditional knowledge:

    # National and international enforcement mechanisms in the intellectual property system that ensure legal access to genetic resources and traditional knowledge should be fully developed and used.
    # Political and legal flexibility in the existing international arrangements and negotiations to design and implement positive and defensivesystems to protect traditional knowledge should be maintained and enhanced.
    # Broad and effective participation of indigenous and other local communities in all discussions and negotiations on genetic resources and traditional knowledge

    The author can be reached at: [email protected]

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