Imminent Issues of Yoga Piracy-Traditional Knowledge of India
With special reference to yoga and
spirituality as part of Indian Traditional Knowledge.
“It is the intense spirituality of India, and not any great political structure or social organisation that it has developed, that has enabled it to resist the ravages of time and the accidents of history.” – Dr. Sarvepalli Radhakrishnan, Former President of India.
Abstract:
Existing IP Laws are aimed at facilitating commercial exploitation. While all other IP laws offer monopoly and exclusive commercial right, there arises a need to protect yoga as a part of intrinsic traditional knowledge of India to prevent the misuse by alien elements with the intention of unjust commercial exploitation of Indian Traditional Knowledge. Otherwise there might arise a situation where India would be forced to buy its own traditional knowledge from foreign countries if products involving valuable Indian Traditional knowledge are patented in other countries.
The position of Patents legislation in India, which is section 3 (p) of the corresponding act, is insufficient since it does not give protection to traditional knowledge, but only prevents applied traditional knowledge from being patented. Frivolous attempts are not uncommon in the patent offices of developed countries, where the grant of such patents is left unchallenged. They are unjustly manipulated to be novel inventions by introducing meagre and insignificant changes to the original usage, which is an obvious part of yogic traditional knowledge in India.
Such traditional knowledge is found very commonly among the community which possesses and uses it, so there is no necessity for such community to contemplate upon the commercial importance of such traditional knowledge. So, they do not obtain any intellectual property protection for their traditional knowledge.
But when the traditional knowledge of the community gets exposed to other people, it results in unjust commercial exploitation of traditional knowledge. If it happens to Yoga, then it is referred to as Yoga Piracy. There have been instances where India has approached the WTO with respect to such issues. So, there is a need of a sui generis legislation for dealing with traditional knowledge, especially yoga, so that the profundity and integrity of the discipline is preserved.
Introduction:
Indian Traditional Knowledge is said to be one of the ancient and profound ones found in any civilisation of the world. India is bound by strong natural barriers on all sides, which made it difficult for outsiders to come into. This factor also provided with an equitable climatic condition to the peninsula, which also made it a conducive environment for exploration of aspects of life beyond survival. Therefore, in India, spirituality and various other connected scientific disciplines emerged into existence, which thrived into a very huge library of traditional knowledge, not found elsewhere in its profoundness.
One of the greatest scientific disciplines include Yoga, which by its very nature is a complete path. Yoga, as it is popularly understood, is not merely the twisting and turning of human body. Of course, Hatha Yoga is about the physical aspect. But it is just one of the aspects. In short, the word Yoga’s Sanskrit root means ‘to join’[1] or ‘Union’ – to be in union with the universe. To limit it to mere physical practices is to underestimate the whole dimensions the yogic discipline has in it to offer.
While all other IP laws offer monopoly and exclusive commercial right, there arises a need to protect yoga and spirituality as a part of intrinsic traditional knowledge and cultural expressions of India and prevent it from misuse by alien elements in the form of patent protection with the intention of commercial exploitation of Indian Traditional Knowledge.
According to Natural theory of Intellectual Property, one cannot claim Intellectual Property Protection for already existing knowledge or for the products which are manifested in nature[2], or in the case of Traditional Knowledge, claims cannot be made by manipulation of one or more branches of knowledge which are already existing and obvious to the community possessing such traditional knowledge.
But in the present scenario, industries and individuals, especially in the developed countries, try to exploit the invaluable resources of the Indian Traditional Knowledge in spirituality and Yoga by incorporating their principles and techniques in their commercial products. The problem gets complicated when they obtain intellectual property protection for such products. For instance, products, where principles of traditional knowledge form their substantial part, are claimed to be novel and are thus patented. It is not uncommon that such patents are left unchallenged, since they are patented in the patent offices of the developed countries and they may very well remain unnoticed unless such products acquire international acclaim.
Nevertheless, such products are commercially exploited in the local markets and allowing such a happening will only be in the effect of condoning the invalid patenting of the claimed novel invention. It will become a mammoth problem when the product acquires certain goodwill and even if the patent is found invalid, the success of the product and commercial importance of it continues to exist. The same applies to the copyrighting of the Yoga Poses as one’s individual right, where such Yoga Poses are passed on from generation to generation and cannot be attributed to individuals since they form part of traditional knowledge.
Insufficiency Of Legal Protection To Traditional Knowledge Outside India
Legal Protection to India’s traditional knowledge is not present under the umbrella of other fields of intellectual property law. The position of Patents legislation in India, which is section 3 (p) of the corresponding act is insufficient since it does not provide protection to traditional knowledge.
Section 3 (p) of the Patents Act, 1970 (India) reads as follows:
“3. What are not inventions. - The following are not inventions within the meaning of this Act:
(p) an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.”
The above provision only prevents patenting of inventions based on traditional knowledge. But the problem involving traditional knowledge does not stop at that point. It only prevents applied traditional knowledge from being patented. But the real time problem is that patents have been obtained in the developed countries by using the traditional knowledge of India and they are exploited commercially in the guise of originally invented patents. Such frivolous patents do not have the required ingredients ab initio, but they are manipulated to be patented inventions by means of introducing meagre and insignificant changes to the original usage, which is an obvious part of yogic traditional knowledge in India.
One of such instances of obtaining intellectual property protection for products involving Indian Traditional Knowledge is the patent on Neem based products. The patent for Neem was first filed by W.R. Grace and the Department of Agriculture, USA in European Patent Office. The patent subject was about a method of controlling fungi on plants comprising of contacting the fungi with a Neem oil formulation.
A legal opposition was filed by India against the patenting of the product, represented by the Research Foundation for Science, Technology and Ecology (RFSTE), in co-operation with the International Federation of Organic Agriculture Movements (IFOAM) and Magda Aelvoet, former green Member of the European Parliament (MEP). The bark, leaves, flowers, seeds of neem tree, which is legendary to India, can be efficiently used to treat a plethora of diseases ranging from leprosy to diabetes, skin disorders and ulcers.[3] Neem twigs are widely used as a popular antiseptic tooth cleaner since time immemorial, especially in the rural areas and are found to be very efficient.[4]
The opponents' submitted evidence of ancient Indian ayurvedic texts that have described the hydrophobic extracts of neem seeds, which were well known and used for centuries in India, both in curing skin diseases in humans and in protecting agricultural plants from fungal infections. Taking into consideration all these facts, the EPO identified the lack of novelty, inventive step and revoked the patent. Similarly, there were also cases concerning turmeric and basmati rice.
Such traditional knowledge is found very commonly among the community which possesses and uses it, so there is no necessity for such community to contemplate upon the commercial importance of such traditional knowledge. So, they do not obtain any intellectual property protection for the products using their traditional knowledge because they do not have any intention to exploit their traditional knowledge. But when the traditional knowledge of the community gets exposed to other people, they try to exploit it commercially by applying the traditional knowledge on products and obtaining intellectual property protection.
In many cases, the community possessing the traditional knowledge does not come to know about such improper intellectual property protection given to products based on the traditional knowledge. Though section 3 (p) of patents act prevents such patents, such frivolous attempts are not uncommon in the patent offices of developed countries, where grant of such patents are left unchallenged. There have also been instances where India has approached the WTO with respect to such patents of yoga postures[5]. It can be clearly stated that scope of protection of the most profound traditional knowledge in the world is too remote even in its very place of origin.
Traditional Knowledge
Traditional knowledge is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. WIPO's program on TK addresses genetic resources and traditional cultural expressions. [6]
While there is not yet an accepted definition of TK at the international level, it can be said that:
TK in a general sense embraces the content of knowledge itself as well as traditional cultural expressions, including distinctive signs and symbols associated with TK. TK in the narrow sense refers to knowledge as such, in particular the knowledge resulting from intellectual activity in a traditional context, and includes know-how, practices, skills, and innovations.[7]
The Protection of Traditional Knowledge Bill, 2016 introduced by Dr. Shashi Tharoor as a private bill defined traditional knowledge in section 2 (1) (ix) as follows:
“ "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;”[8]
Traditional knowledge can be found in a wide variety of contexts, including: agricultural, scientific, technical, ecological and medicinal knowledge as well as biodiversity-related knowledge.
An important issue which arises with respect to the granting of intellectual property protection to traditional knowledge is that it has ancient roots and the mode of transmission of traditional knowledge from one generation to the next is often oral.
Moreover, the subject matter is not protected by conventional intellectual property systems. The conventional systems provide scope for commercial exploitation, whereas protection of traditional knowledge generally forbids commercial exploitation, since such knowledge is in the public domain and is intended to benefit for the society at large. Therefore, commercial exploitation of traditional knowledge by a private individual is per se not allowable since it is not his own creation. Hence anyone who has obtained the knowledge, know-how of the traditional knowledge can make use of it for his own benefit or public use.
With respect to Indian traditional knowledge, the general policy of India is intended to benefit the whole humanity. Hence even if India does not commercially exploit, it should be able to stop others from monopolising its traditional knowledge.
While the policy issues concerning TK are broad and diverse, the IP issues break down into two key themes:
Defensive Protection
Defensive protection refers to a set of strategies to ensure that third parties do not gain illegitimate or unfounded IP rights over traditional knowledge. India, for example, in the well-known case of USPTO, wherein patent was granted on the healing properties of turmeric, with much difficulty, proved the prior existing knowledge of such properties of turmeric with help of numerous ancient scriptures and documents.
It had adopted a Defensive mechanism to protect its traditional knowledge[9]. It is also evident from the way of setting up a Traditional Knowledge Digital Library (TKDL) in 2001, in collaboration between Ministry of Ayush and CSIR, that India uses only a defensive protection mechanism to prevent people from misusing traditional knowledge for commercial exploitation as private intellectual property.
Positive Protection
Two aspects of positive protection of TK by IP rights are recognised: preventing unauthorized use, and active exploitation of TK by the originating community itself.
In some countries, sui generis legislation has been developed specifically to address the positive protection of TK.[10] A sui generis legislation for Indian traditional knowledge, especially yoga, would streamline all the intellectual property problems concerning the traditional knowledge. Some amount of positive protection will also go a long way in preventing unauthorised exploitation of traditional knowledge.
WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore decided to dissect the working concept of traditional knowledge into two: i. Traditional Knowledge related to biodiversity and ii. Traditional Knowledge related to the arts and expressions of folklore. It is said that this approach to TK is too minimalistic, which is counterproductive to the diplomatic efforts in various fora to include all types of traditional knowledge and the needs and expectations of the respective TK holders.[11]
Though this distinction attempts to put into traditional knowledge as a subject of other forms of IPR Protection, that does not cover exhaustively all forms of traditional knowledge, especially yoga which cannot precisely fall under the subject of any of the other IPR protection laws.
Yoga Piracy And Scope Of Protection In Other Modes Of Intellectual Property Protection
Yoga Piracy is a practice of claiming copyrights and patents on yoga postures or sequences of postures, asanas and techniques found in ancient treatises indigenous to India.
But to be more comprehensive, Yoga Piracy should not only be taken as obtaining intellectual property protection for contents of traditional knowledge. It should also be construed to be something which is deceivingly perceived or misrepresented as the discipline for which the name ‘yoga’ stands for. The issue of Yoga Piracy has manifested in many modalities of intellectual property protection, such as patents, copyrights, trademarks, Geographical Indications, Trade Secrets, etc.
To talk about patents, the techniques which are merely a derivative from the ancient traditional knowledge are not to be taken as innovations or inventions, since they do not involve any utility or inventive step. Hence, such claimed inventions or products incorporating such techniques should not be granted patents.
With respect to copyrights, the asanas or the poses have been subject to attempts of copyright protection. They have been an inherent part of the traditional knowledge and have been mentioned in the ancient treatises and aphorisms of Yoga as well as in the oral tradition of learning and initiation. Such poses are part of traditional knowledge and cannot be monopolised as private intellectual property right.
When it comes to trademarks, the problem of Yoga Piracy takes a different dimension. Trademarks are all about goodwill and reputation. The name ‘yoga’ is not a trademark. It is only the name of an ancient old discipline which is part of the traditional knowledge of India. But there is an increasing tendency of usage of the name ‘yoga’ in a totally different connotation, according to one’s own whims and fancies.
There has been promotion of certain misadventures in the name of yoga. For instance, there is a certain trend called ‘beer yoga’ which originated in the West, where alcohol enthusiasts take up doing yoga while drinking[12], which is a serious misadventure. To take into consideration the fact that the practices of yoga demand empty stomach, loading the system with beer will not be of any effect and whatever happens in the name of beer yoga is merely a stunt or a fantasy, and is not in any way connected to the profound experience which the proper practice of yoga has to offer.
The practice of yoga is aimed at increasing the perception of an individual. Alcohol diminishes one’s perception, so all those practices which are being done in the name of ‘beer yoga’ are only an abuse of whatever the ancient discipline has to offer to the humanity. The main problem with respect to such negligent usage of the word ‘yoga’ arises as it endangers the goodwill of the discipline. Though the name ‘yoga’ does not involve any trademark, it does have a great amount of goodwill and reputation. It is not only trademarks which have goodwill, also traditional knowledge and traditional cultural expressions have a great amount of goodwill.[13]
Because, a layman who sees these words being used so indiscriminately, is misled as to the nature of the discipline, and might think that yoga is merely a physical fitness regime. Thus, the goodwill of yogic discipline is at stake, when indiscriminate use of the word takes place. Therefore, protection should be granted against such usage since it jeopardises the goodwill of such a profound discipline.
With respect to geographical indications, there is a certain amount of protection to other forms of traditional knowledge, which protects its goodwill and reputation. But the limitation of geographical indication law is that it is confined to a particular geographical territory alone. The nature of yoga is a discipline which can be practised in all places, by anyone, irrespective of any culture, religion, belief and ideology.
Yoga is beyond all such social impediments, it is a technology for inner well-being, which greatly enhances one’s perception, life, well-being and health. Though it has its origin in India, it is not proper to call it a geographical asset since yoga is not a product or an expression like any other traditional cultural expression which is produced in a confined territory. Yoga can be practiced and taught at any place. Only thing is that the integrity and purity of the practice must be maintained to reap maximum benefits from the practice.
Therefore, yoga is a discipline which is essentially part of Indian traditional knowledge, which does not fall under the subject matter of protection under the geographical indication law, since it is not confined to any geographical territory as such. It cannot be patented, trademarked or copyrighted, since it is part of traditional knowledge and cannot form part of anyone’s private intellectual property.
Therefore, it is clear that existing modes of intellectual property protection cannot exhaustively address the problem of yoga piracy. Hence there is a need for sui generis legislation to obtain worldwide protection for addressing this problem.
A person does not invent, in fact cannot invent anything, with respect to the discipline of yoga. The reason is that, what we call as yoga is just the scientific discipline, which are based on experiential and spiritual dimensions, which signify union. The technology was compiled and revealed in the Yoga Sutras, though the techniques were in practice even before the book was written. Other aspects are learnt from a guru by the disciples, and it has been passed on from generations to generations by the means of oral tradition.
No one had ever tried to alter anything or innovate anything, because yoga is a complete discipline or a complete path by itself, with the ends of achieving greater and enhanced experience of life and ultimately realization. Any alteration or innovative stunt in the observance and performance of the discipline and the techniques will only result in a deviated or diminished end result, which does not serve any purpose per se.
In various disciplines of the world such as martial arts, the performers do not and cannot invent anything with respect to the discipline itself, because the discipline proves to be a complete path by itself, to meet the desired ends. Therefore, there is no point in innovating or deviating from the discipline since the process is more intrinsic to the means as well as the ends, where the ends are the means themselves and the result itself is manifested excellency.
Therefore, any intellectual property right arising from the subject of yoga should be carefully dealt with and should not be granted for the mere presence of ‘novelty’ or ‘temporal pleasant feeling’ which may deceivingly appear as ‘utility’ or ‘application’. Mere physical articulation of the body does not result in enhancement of a person, nor does it amount to utility and yoga does not merely mean dealing with the external situations like elevating the room temperature for hot yoga or having a stimulating yoga studio.
However, innovations pertaining to accessories, such as yoga mat, props, chairs, can very well be subject matter of patents. They do not come under the purview of the discipline of yoga, but are just accessories which can be used during the performance of yoga. They are inventions which aid the practice of yoga. Nevertheless, only the accessory product can be patentable and not the practice.
But when it comes to the practice of yoga as such, all information, methods, techniques, theory, philosophy, knowledge, asanas, etc. which are intrinsic to the discipline are not subject to intellectual property protection.
But as the number of Western yoga teachers has grown, there has been a steady increase in applications for intellectual property protection. In the United States alone, there have been more than 130 yoga-related patents, 150 copyrights and 2,300 trademarks. Now India's Traditional Knowledge Digital Library is being made available to patents offices throughout the world so they can establish whether the claim is a genuine innovation or "prior art" from Indian systems of medicine.[14]
Apart from the yogic discipline, in case of any claim for intellectual property protection for a medicinal herb, the knowledge about which had existed in the traditional knowledge of any community, such claims are also not valid for obtaining intellectual property protection. For instance, if a company seeks to patent the medicinal use of an herb listed in the TKDL, patent examiners conduct a thorough investigation. According to the merits of the claims, it will lead to a reduction of the scope of the patent or its refusal.
However, the company may still be granted a patent on a new method for industrial-scale production of the active ingredient of the herb, for example, if this process is new and inventive. In such cases, the patent applicants would not claim ownership of the active ingredient itself. The scope would then be limited to a method of producing or isolating the ingredient.[15]
Instances Of Yoga Piracy
Yoga Piracy is a practice of claiming copyrights and patents on yoga postures or sequences of postures, asanas and techniques found in ancient treatises indigenous to India.
There have been instances where the cases have been decided that yoga cannot make subject matter for copyrights or patents.
In Bikram Yoga v. Yoga to the People, well-known yoga practitioner Bikram Choudhury, sued the Yoga to the People – a east Village based yoga studio, claiming that its founder Gregory Gumucio infringed his rights by illegally using Bikram’s copyrighted poses and super-heated rooms inside Yoga to the People classes. It was also claimed that Bikram’s Hot Yoga classes were copied and provided by Yoga to the People, who conducted classes in the name of ‘Traditional Hot Yoga’. While Bikram’s copyrighted Asana Sequence and Dialogue – including a strict 90-minute regimen that follows a rigid format of 26 poses performed in a 105-degree heated room.
Choudhury founded the style called ‘Bikram Yoga’, also known as "hot yoga", in the 1970s and copyrighted it in 2002, as it became successful and began being practiced by a plethora of public figures. The lawsuit sought damages in excess of $1 million, as well as an injunction stopping Yoga to the People from conducting hot yoga classes. Bikram Yoga Manhattan, which is licensed to use the Bikram name, closed its Midtown branch and the owner, Raffael Pacitti, blamed YTTP for eroding his business with rock-bottom prices and uncertified teachers, according to a Daily News article. It costs $10,000 per teacher to be certified as a Bikram instructor, according to the lawsuit.
Gumucio called the lawsuit "ridiculous" and added, "I think that yoga should be made available to everybody. It should be in the hands of the people, not in the hands of a few.” Gumucio said YTTP's mission, which grew to include a dozen studios nationwide — is to provide affordable, accessible yoga. In the face of designer yoga studios and high prices, YTTP offered classes with a suggested donation of $5 or $10 and charges $8 for the “Traditional Hot Yoga” class — less than half the price of an average $20 fee for a single Bikram yoga class.
Many also held the view that something as profound as yoga should not be copyrighted. “It is like writing a book on walking and copyrighting walking.”, was one of the connoisseurs saying about it.
Before each class, instructors at YTTP informed students about the lawsuit and asked them to sign a petition defending the studio. As a result, over 3000 people signed the petition.[16]
Similarly, in Bikram's Yoga College v. Evolation Yoga, Choudhury sued Evolation Yoga for teaching hot yoga with the same sequence of postures as Bikram Yoga. On December 17, 2012, U.S. District Court Judge Otis Wright ruled that Bikram Choudhury does not have copyright protection for the sequence of 26 yoga postures and two breathing exercises commonly known as “Bikram Yoga.” The ruling, in favour of Evolation Yoga LLC and its founders Mark Drost and Zefea Samson, meant that non-Bikram studios are allowed to offer hot yoga classes utilizing that same 26-posture sequence—a legal right Choudhury actively and vigorously contested for several years.[17]
On October 8, 2015, the Ninth Circuit Court of Appeals affirmed, finding that the sequence of yoga postures was not copyrightable subject matter under 17 U.S.C. § 102(b) and that Choudhury's copyright in a book describing his system did not give him copyright over the sequence itself.[18]
Thus, as a result of developments in a series of lawsuits, Bikram Choudhury’s copyright on the specific sequence of Bikram yoga has been overruled by the federal court. All such attempts caused great feelings of indignation and anger in India, where it has been practiced for over 6000 years.
Traditional Knowledge Digital Library
India, by means of a database, tried to establish defensive protection. A team of yoga gurus from nine schools worked with government officials and 200 scientists from the Council of Scientific and Industrial Research (CSIR) to scan 35 ancient texts including the Hindu epics, the Mahabharata and the Bhagwad Gita, and Patanjali's Yoga Sutras to register each native pose.[19]
Now India's Traditional Knowledge Digital Library is being made available to patents offices throughout the world so they can establish whether the claim is a genuine innovation or "prior art" from Indian systems of medicine.
The Traditional Knowledge Digital Library (TKDL) is an Indian digital knowledge repository of the traditional knowledge, especially about medicinal plants and formulations used in Indian systems of medicine. Set up in 2001, as a collaboration between the Council of Scientific and Industrial Research (CSIR) and the Ministry Of AYUSH, the objective of the library is to protect the ancient and traditional knowledge of the country from exploitation through biopiracy and unethical patents, by documenting it electronically and classifying it as per international patent classification systems. Apart from that, the non-patent database serves to foster modern research based on traditional knowledge, as it simplifies access to this vast knowledge of remedies or practices.[20]
As of 2010, transcriptions of 148 books were made, including those on Ayurveda, Unani, Siddha and Yoga in public domain. They expanded into 34 million pages of information, and were translated into five languages — English, German, French, Spanish and Japanese. Data on 80,000 formulations in Ayurveda, 1,000,000 in Unani and 12,000 in Siddha had already been put in the TKDL. Also, it has signed agreements with leading international patent offices such as European Patent Office (EPO), United Kingdom Trademark & Patent Office (UKPTO) and the United States Patent and Trademark Office to protect traditional knowledge from biopiracy, by giving patent examiners at international patent offices, access to the TKDL database for patent search and examination.[21]
The TKDL allows examiners to compare patent applications with existing traditional knowledge. New patent applications need to demonstrate significant improvements and inventiveness compared to prior art in their field. If the medical use of an herb is a traditional practice, and thereby public knowledge, it is considered prior art under EPO regulations.
Even if a treatment is only available in Sanskrit in an Indian library, it belongs to the prior art because it had been disclosed openly in the public domain at an earlier point in time.[22]
"Copyrights over yoga postures and trademarks on yoga tools have become rampant in the West. Till now, we have traced 130 yoga-related patents in the US. We hope to finish putting on record at least 1500 yoga postures by the end of 2009," has said Dr V.P Gupta, of the CSIR, who created the Traditional Knowledge Digital Library.[23]
In the past few years, it has been seen that India has actively participated in conventions and has made efforts to protect its Traditional Knowledge at international level. Access to Indian TK is available at USPTO and EPO and CSIR. It is day by day improving the efficiency of TK database.
Inadequacy Of Protection By TKDL
The digital library, although comprising of voluminous documents and work of Indian traditional knowledge, has its own shortcomings such as; translation problems, disclosure of traditional knowledge as prior art is disadvantageous since it leads to public disclosure of entire traditional knowledge which simultaneously results to fishing expeditions, further one of the major aspect of traditional knowledge is that it is mostly passed by generations in oral manner, therefore, a lot of TK has no documentary record and TKDL maintains no record of oral traditional knowledge.
Unlike other categories of intellectual property rights, India has no substantive act or law to protect traditional knowledge. A sui generis instrument can go a long way in the efficient protection of TK, enforcement of right of indigenous communities, prevent misuse and control of TK, provisions of ABS (access and benefit sharing) system, etc.[24]
In addition to TKDL system, India can work towards a more active approach, foremost to create awareness and understanding among people who are till date completely unaware or have very limited knowledge on Intellectual Property Rights as well as the term ‘traditional knowledge’.
Therefore, the need of a sui generis legislation dealing with the subject of traditional knowledge is real.
Attempt for a sui generis legislation for traditional knowledge – the protection of traditional knowledge bill, 2016.
The Protection of Traditional Knowledge Bill, 2016 was introduced as a private bill by Dr. Shashi Tharoor, a Member of Parliament from Thiruvananthapuram, also the former Under – Secretary General of the United Nations for Communications and Public Information. This legislation treated traditional knowledge as an important subject for protection and distinguished it from other forms of intellectual property.[25]
The Bill was proposed to provide for the 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. This opinion goes hand in hand with the nature of yoga as a traditional knowledge, where it is a complete path by itself and there is no much scope for any innovation.
He advocated for a parliamentary recognition to protect India’s invaluable traditional knowledge with a system of registration that identifies the traditional knowledge with its rightful custodians. He also opined that the State shall be the custodian of all traditional knowledge. He also highlighted the need of ensuring appropriated incentives for further research and development on traditional knowledge. An attempt was also made 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.
Need for the regulated use of the term ‘yoga’
Using the word ‘yoga’ to denote any physical experiment or exercise is erroneous by itself since it does not amount to any proper advancement to the end of the ancient discipline. To bring in an analogy for better understanding, it would be ideal to take the example of ‘medicine’. Medicine as a discipline shall only be practiced by lawful practitioners. Lawful practitioners mean those who practice the discipline after passing all such requirements under law, such as to complete the MBBS course and so on.
Yoga is traditional knowledge and such knowledge only exists to the set of people who have received the knowledge from generations to generations. Since such knowledge is foreign to all other people, many people try to invent some new poses without proper awareness and understanding about the yoga discipline. As a result, they end up with an incorrect pose which based on the physical dimension of yogasanas alone and with some misadventure of such inventor yields to various so-called yoga forms. There have been many usages with respect to physical exercises, which has been labelled as ‘yoga’.
Usages like ‘beer yoga’ must be forbidden since it highly misleads common men about the meaning of yoga. Whether those misadventures are patented or not, intellectual property law must enforce protection of the names of traditional knowledge against such indiscriminate usage so that public is not misled as to the knowledge about the discipline. If the same happens with respect to a medical discipline, where someone claims his own whims and fancies to be a part of the medicinal practice, then it will be highly misleading and unlawful. Such an act is unlawful since it seriously jeopardizes the health of the victim.
But when it comes to a discipline like yoga whose practice does not have a legal protection, it is important to note that indiscriminate usages as to the discipline needs to be prevented since it also can be misleading, leaving alone for a moment the serious jeopardy to the health it might cause. Sometimes, wrong practice might not necessarily lead to health hazards but it does not result in any beneficial result as well. Therefore, it creates doubt and confusion in the minds of the common men as to the efficiency and significance of the practice of yoga.
The reason for the insistence upon the purity of the practice is not for the sake of monopoly, but if ill-informed changes are made in the discipline out of ignorant and overenthusiastic practitioners, it will only lead to the diminishment of the value and effect of the discipline. So, it is vital to protect the purity and integrity of the practice through law and intellectual property law will be an efficient tool to protect this aspect of the traditional knowledge. Nevertheless, well informed innovation can be always made, provided such an innovation results in the achievement of the ends of the discipline and not otherwise.
For example, the practice of Iyengar Yoga, founded by B.K.S. Iyengar, involves use of props[26], chairs, ropes and other specialized articles intrinsic to the practice of hatha yoga. The practice of yoga under this school involves the purest form of practice, though props are used. The object of using the props is to achieve posture perfection or the perfection in practice of the asanas, for those people who may not be able to achieve posture perfection otherwise, due to various limitations and impediments of their bodies and mind. In this case, the use of props is in pursuance of achieving the ends of the discipline, improves the practice of the discipline, which is entirely different from mindless deviations from the practice which do not have any substantial use and are mere results of the whims and fancies of the person who claims it to be an innovation.
Conclusion
The issues relating to Intellectual Property Protection to traditional knowledge are not restricted to a single form of intellectual property but is related to many aspects of it. Especially for a discipline like yoga, the importance of protection of traditional knowledge as such is very important. Since the discipline does not fall under any of the existing pigeonholes of IP protection, the problem arising out of it needs to addressed in a totally different manner.
The existing approach of seeing intellectual property protection as a tool for mere commercial exploitation does not fulfil the demands of protection of the yogic discipline or any other traditional knowledge of similar nature. Though the existing approach to IP law does not expressly undermine any possibility of a sui generis legislation, it is highly unlikely that industrialised states may in turn accept the possibility of granting protection to a new form of IPRs for this type of knowledge.[27]
The feasibility of such miracle to happen on its own seems remote, since the globalised world might only consider any further tools in IPR which might facilitate more industrialisation and not something which would curb their commercial activity. Therefore, it seems that there is a need of sui generis legislation with respect to the protection of traditional knowledge, especially yoga and the regulation of the use of the term ‘yoga’ and many other terminologies intrinsic to the traditional knowledge which needs to be used with integrity and purity in expression so as to prevent miscommunication, or misinterpretation and to prevent its usage in a frivolous or indiscriminate fashion.
It is also important to totally prevent commercial exploitation of Indian Traditional knowledge in an efficient manner. Otherwise there might arise a situation where India would be forced to buy its own traditional knowledge from foreign countries if products involving valuable Indian Traditional knowledge are patented in other countries.
Even if India does not commercialise yogic traditional knowledge, it should at least ensure that the whole humankind assimilates the benefits of Indian traditional knowledge by preventing others from wrongly monetising intrinsic Indian wealth. The knowledge should also be mobilised well throughout India through education systems as it aids individual development of humans and also promotes innovation upon such traditional knowledge. Such dissemination of traditional knowledge will prevent foreign elements from unfair exploitation.
Bibliography
Primary Sources
Secondary Sources
Webliography
“It is the intense spirituality of India, and not any great political structure or social organisation that it has developed, that has enabled it to resist the ravages of time and the accidents of history.” – Dr. Sarvepalli Radhakrishnan, Former President of India.
Abstract:
Existing IP Laws are aimed at facilitating commercial exploitation. While all other IP laws offer monopoly and exclusive commercial right, there arises a need to protect yoga as a part of intrinsic traditional knowledge of India to prevent the misuse by alien elements with the intention of unjust commercial exploitation of Indian Traditional Knowledge. Otherwise there might arise a situation where India would be forced to buy its own traditional knowledge from foreign countries if products involving valuable Indian Traditional knowledge are patented in other countries.
The position of Patents legislation in India, which is section 3 (p) of the corresponding act, is insufficient since it does not give protection to traditional knowledge, but only prevents applied traditional knowledge from being patented. Frivolous attempts are not uncommon in the patent offices of developed countries, where the grant of such patents is left unchallenged. They are unjustly manipulated to be novel inventions by introducing meagre and insignificant changes to the original usage, which is an obvious part of yogic traditional knowledge in India.
Such traditional knowledge is found very commonly among the community which possesses and uses it, so there is no necessity for such community to contemplate upon the commercial importance of such traditional knowledge. So, they do not obtain any intellectual property protection for their traditional knowledge.
But when the traditional knowledge of the community gets exposed to other people, it results in unjust commercial exploitation of traditional knowledge. If it happens to Yoga, then it is referred to as Yoga Piracy. There have been instances where India has approached the WTO with respect to such issues. So, there is a need of a sui generis legislation for dealing with traditional knowledge, especially yoga, so that the profundity and integrity of the discipline is preserved.
Introduction:
Indian Traditional Knowledge is said to be one of the ancient and profound ones found in any civilisation of the world. India is bound by strong natural barriers on all sides, which made it difficult for outsiders to come into. This factor also provided with an equitable climatic condition to the peninsula, which also made it a conducive environment for exploration of aspects of life beyond survival. Therefore, in India, spirituality and various other connected scientific disciplines emerged into existence, which thrived into a very huge library of traditional knowledge, not found elsewhere in its profoundness.
One of the greatest scientific disciplines include Yoga, which by its very nature is a complete path. Yoga, as it is popularly understood, is not merely the twisting and turning of human body. Of course, Hatha Yoga is about the physical aspect. But it is just one of the aspects. In short, the word Yoga’s Sanskrit root means ‘to join’[1] or ‘Union’ – to be in union with the universe. To limit it to mere physical practices is to underestimate the whole dimensions the yogic discipline has in it to offer.
While all other IP laws offer monopoly and exclusive commercial right, there arises a need to protect yoga and spirituality as a part of intrinsic traditional knowledge and cultural expressions of India and prevent it from misuse by alien elements in the form of patent protection with the intention of commercial exploitation of Indian Traditional Knowledge.
According to Natural theory of Intellectual Property, one cannot claim Intellectual Property Protection for already existing knowledge or for the products which are manifested in nature[2], or in the case of Traditional Knowledge, claims cannot be made by manipulation of one or more branches of knowledge which are already existing and obvious to the community possessing such traditional knowledge.
But in the present scenario, industries and individuals, especially in the developed countries, try to exploit the invaluable resources of the Indian Traditional Knowledge in spirituality and Yoga by incorporating their principles and techniques in their commercial products. The problem gets complicated when they obtain intellectual property protection for such products. For instance, products, where principles of traditional knowledge form their substantial part, are claimed to be novel and are thus patented. It is not uncommon that such patents are left unchallenged, since they are patented in the patent offices of the developed countries and they may very well remain unnoticed unless such products acquire international acclaim.
Nevertheless, such products are commercially exploited in the local markets and allowing such a happening will only be in the effect of condoning the invalid patenting of the claimed novel invention. It will become a mammoth problem when the product acquires certain goodwill and even if the patent is found invalid, the success of the product and commercial importance of it continues to exist. The same applies to the copyrighting of the Yoga Poses as one’s individual right, where such Yoga Poses are passed on from generation to generation and cannot be attributed to individuals since they form part of traditional knowledge.
Insufficiency Of Legal Protection To Traditional Knowledge Outside India
Legal Protection to India’s traditional knowledge is not present under the umbrella of other fields of intellectual property law. The position of Patents legislation in India, which is section 3 (p) of the corresponding act is insufficient since it does not provide protection to traditional knowledge.
Section 3 (p) of the Patents Act, 1970 (India) reads as follows:
“3. What are not inventions. - The following are not inventions within the meaning of this Act:
(p) an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.”
The above provision only prevents patenting of inventions based on traditional knowledge. But the problem involving traditional knowledge does not stop at that point. It only prevents applied traditional knowledge from being patented. But the real time problem is that patents have been obtained in the developed countries by using the traditional knowledge of India and they are exploited commercially in the guise of originally invented patents. Such frivolous patents do not have the required ingredients ab initio, but they are manipulated to be patented inventions by means of introducing meagre and insignificant changes to the original usage, which is an obvious part of yogic traditional knowledge in India.
One of such instances of obtaining intellectual property protection for products involving Indian Traditional Knowledge is the patent on Neem based products. The patent for Neem was first filed by W.R. Grace and the Department of Agriculture, USA in European Patent Office. The patent subject was about a method of controlling fungi on plants comprising of contacting the fungi with a Neem oil formulation.
A legal opposition was filed by India against the patenting of the product, represented by the Research Foundation for Science, Technology and Ecology (RFSTE), in co-operation with the International Federation of Organic Agriculture Movements (IFOAM) and Magda Aelvoet, former green Member of the European Parliament (MEP). The bark, leaves, flowers, seeds of neem tree, which is legendary to India, can be efficiently used to treat a plethora of diseases ranging from leprosy to diabetes, skin disorders and ulcers.[3] Neem twigs are widely used as a popular antiseptic tooth cleaner since time immemorial, especially in the rural areas and are found to be very efficient.[4]
The opponents' submitted evidence of ancient Indian ayurvedic texts that have described the hydrophobic extracts of neem seeds, which were well known and used for centuries in India, both in curing skin diseases in humans and in protecting agricultural plants from fungal infections. Taking into consideration all these facts, the EPO identified the lack of novelty, inventive step and revoked the patent. Similarly, there were also cases concerning turmeric and basmati rice.
Such traditional knowledge is found very commonly among the community which possesses and uses it, so there is no necessity for such community to contemplate upon the commercial importance of such traditional knowledge. So, they do not obtain any intellectual property protection for the products using their traditional knowledge because they do not have any intention to exploit their traditional knowledge. But when the traditional knowledge of the community gets exposed to other people, they try to exploit it commercially by applying the traditional knowledge on products and obtaining intellectual property protection.
In many cases, the community possessing the traditional knowledge does not come to know about such improper intellectual property protection given to products based on the traditional knowledge. Though section 3 (p) of patents act prevents such patents, such frivolous attempts are not uncommon in the patent offices of developed countries, where grant of such patents are left unchallenged. There have also been instances where India has approached the WTO with respect to such patents of yoga postures[5]. It can be clearly stated that scope of protection of the most profound traditional knowledge in the world is too remote even in its very place of origin.
Traditional Knowledge
Traditional knowledge is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. WIPO's program on TK addresses genetic resources and traditional cultural expressions. [6]
While there is not yet an accepted definition of TK at the international level, it can be said that:
TK in a general sense embraces the content of knowledge itself as well as traditional cultural expressions, including distinctive signs and symbols associated with TK. TK in the narrow sense refers to knowledge as such, in particular the knowledge resulting from intellectual activity in a traditional context, and includes know-how, practices, skills, and innovations.[7]
The Protection of Traditional Knowledge Bill, 2016 introduced by Dr. Shashi Tharoor as a private bill defined traditional knowledge in section 2 (1) (ix) as follows:
“ "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;”[8]
Traditional knowledge can be found in a wide variety of contexts, including: agricultural, scientific, technical, ecological and medicinal knowledge as well as biodiversity-related knowledge.
An important issue which arises with respect to the granting of intellectual property protection to traditional knowledge is that it has ancient roots and the mode of transmission of traditional knowledge from one generation to the next is often oral.
Moreover, the subject matter is not protected by conventional intellectual property systems. The conventional systems provide scope for commercial exploitation, whereas protection of traditional knowledge generally forbids commercial exploitation, since such knowledge is in the public domain and is intended to benefit for the society at large. Therefore, commercial exploitation of traditional knowledge by a private individual is per se not allowable since it is not his own creation. Hence anyone who has obtained the knowledge, know-how of the traditional knowledge can make use of it for his own benefit or public use.
With respect to Indian traditional knowledge, the general policy of India is intended to benefit the whole humanity. Hence even if India does not commercially exploit, it should be able to stop others from monopolising its traditional knowledge.
While the policy issues concerning TK are broad and diverse, the IP issues break down into two key themes:
Defensive Protection
Defensive protection refers to a set of strategies to ensure that third parties do not gain illegitimate or unfounded IP rights over traditional knowledge. India, for example, in the well-known case of USPTO, wherein patent was granted on the healing properties of turmeric, with much difficulty, proved the prior existing knowledge of such properties of turmeric with help of numerous ancient scriptures and documents.
It had adopted a Defensive mechanism to protect its traditional knowledge[9]. It is also evident from the way of setting up a Traditional Knowledge Digital Library (TKDL) in 2001, in collaboration between Ministry of Ayush and CSIR, that India uses only a defensive protection mechanism to prevent people from misusing traditional knowledge for commercial exploitation as private intellectual property.
Positive Protection
Two aspects of positive protection of TK by IP rights are recognised: preventing unauthorized use, and active exploitation of TK by the originating community itself.
In some countries, sui generis legislation has been developed specifically to address the positive protection of TK.[10] A sui generis legislation for Indian traditional knowledge, especially yoga, would streamline all the intellectual property problems concerning the traditional knowledge. Some amount of positive protection will also go a long way in preventing unauthorised exploitation of traditional knowledge.
WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore decided to dissect the working concept of traditional knowledge into two: i. Traditional Knowledge related to biodiversity and ii. Traditional Knowledge related to the arts and expressions of folklore. It is said that this approach to TK is too minimalistic, which is counterproductive to the diplomatic efforts in various fora to include all types of traditional knowledge and the needs and expectations of the respective TK holders.[11]
Though this distinction attempts to put into traditional knowledge as a subject of other forms of IPR Protection, that does not cover exhaustively all forms of traditional knowledge, especially yoga which cannot precisely fall under the subject of any of the other IPR protection laws.
Yoga Piracy And Scope Of Protection In Other Modes Of Intellectual Property Protection
Yoga Piracy is a practice of claiming copyrights and patents on yoga postures or sequences of postures, asanas and techniques found in ancient treatises indigenous to India.
But to be more comprehensive, Yoga Piracy should not only be taken as obtaining intellectual property protection for contents of traditional knowledge. It should also be construed to be something which is deceivingly perceived or misrepresented as the discipline for which the name ‘yoga’ stands for. The issue of Yoga Piracy has manifested in many modalities of intellectual property protection, such as patents, copyrights, trademarks, Geographical Indications, Trade Secrets, etc.
To talk about patents, the techniques which are merely a derivative from the ancient traditional knowledge are not to be taken as innovations or inventions, since they do not involve any utility or inventive step. Hence, such claimed inventions or products incorporating such techniques should not be granted patents.
With respect to copyrights, the asanas or the poses have been subject to attempts of copyright protection. They have been an inherent part of the traditional knowledge and have been mentioned in the ancient treatises and aphorisms of Yoga as well as in the oral tradition of learning and initiation. Such poses are part of traditional knowledge and cannot be monopolised as private intellectual property right.
When it comes to trademarks, the problem of Yoga Piracy takes a different dimension. Trademarks are all about goodwill and reputation. The name ‘yoga’ is not a trademark. It is only the name of an ancient old discipline which is part of the traditional knowledge of India. But there is an increasing tendency of usage of the name ‘yoga’ in a totally different connotation, according to one’s own whims and fancies.
There has been promotion of certain misadventures in the name of yoga. For instance, there is a certain trend called ‘beer yoga’ which originated in the West, where alcohol enthusiasts take up doing yoga while drinking[12], which is a serious misadventure. To take into consideration the fact that the practices of yoga demand empty stomach, loading the system with beer will not be of any effect and whatever happens in the name of beer yoga is merely a stunt or a fantasy, and is not in any way connected to the profound experience which the proper practice of yoga has to offer.
The practice of yoga is aimed at increasing the perception of an individual. Alcohol diminishes one’s perception, so all those practices which are being done in the name of ‘beer yoga’ are only an abuse of whatever the ancient discipline has to offer to the humanity. The main problem with respect to such negligent usage of the word ‘yoga’ arises as it endangers the goodwill of the discipline. Though the name ‘yoga’ does not involve any trademark, it does have a great amount of goodwill and reputation. It is not only trademarks which have goodwill, also traditional knowledge and traditional cultural expressions have a great amount of goodwill.[13]
Because, a layman who sees these words being used so indiscriminately, is misled as to the nature of the discipline, and might think that yoga is merely a physical fitness regime. Thus, the goodwill of yogic discipline is at stake, when indiscriminate use of the word takes place. Therefore, protection should be granted against such usage since it jeopardises the goodwill of such a profound discipline.
With respect to geographical indications, there is a certain amount of protection to other forms of traditional knowledge, which protects its goodwill and reputation. But the limitation of geographical indication law is that it is confined to a particular geographical territory alone. The nature of yoga is a discipline which can be practised in all places, by anyone, irrespective of any culture, religion, belief and ideology.
Yoga is beyond all such social impediments, it is a technology for inner well-being, which greatly enhances one’s perception, life, well-being and health. Though it has its origin in India, it is not proper to call it a geographical asset since yoga is not a product or an expression like any other traditional cultural expression which is produced in a confined territory. Yoga can be practiced and taught at any place. Only thing is that the integrity and purity of the practice must be maintained to reap maximum benefits from the practice.
Therefore, yoga is a discipline which is essentially part of Indian traditional knowledge, which does not fall under the subject matter of protection under the geographical indication law, since it is not confined to any geographical territory as such. It cannot be patented, trademarked or copyrighted, since it is part of traditional knowledge and cannot form part of anyone’s private intellectual property.
Therefore, it is clear that existing modes of intellectual property protection cannot exhaustively address the problem of yoga piracy. Hence there is a need for sui generis legislation to obtain worldwide protection for addressing this problem.
A person does not invent, in fact cannot invent anything, with respect to the discipline of yoga. The reason is that, what we call as yoga is just the scientific discipline, which are based on experiential and spiritual dimensions, which signify union. The technology was compiled and revealed in the Yoga Sutras, though the techniques were in practice even before the book was written. Other aspects are learnt from a guru by the disciples, and it has been passed on from generations to generations by the means of oral tradition.
No one had ever tried to alter anything or innovate anything, because yoga is a complete discipline or a complete path by itself, with the ends of achieving greater and enhanced experience of life and ultimately realization. Any alteration or innovative stunt in the observance and performance of the discipline and the techniques will only result in a deviated or diminished end result, which does not serve any purpose per se.
In various disciplines of the world such as martial arts, the performers do not and cannot invent anything with respect to the discipline itself, because the discipline proves to be a complete path by itself, to meet the desired ends. Therefore, there is no point in innovating or deviating from the discipline since the process is more intrinsic to the means as well as the ends, where the ends are the means themselves and the result itself is manifested excellency.
Therefore, any intellectual property right arising from the subject of yoga should be carefully dealt with and should not be granted for the mere presence of ‘novelty’ or ‘temporal pleasant feeling’ which may deceivingly appear as ‘utility’ or ‘application’. Mere physical articulation of the body does not result in enhancement of a person, nor does it amount to utility and yoga does not merely mean dealing with the external situations like elevating the room temperature for hot yoga or having a stimulating yoga studio.
However, innovations pertaining to accessories, such as yoga mat, props, chairs, can very well be subject matter of patents. They do not come under the purview of the discipline of yoga, but are just accessories which can be used during the performance of yoga. They are inventions which aid the practice of yoga. Nevertheless, only the accessory product can be patentable and not the practice.
But when it comes to the practice of yoga as such, all information, methods, techniques, theory, philosophy, knowledge, asanas, etc. which are intrinsic to the discipline are not subject to intellectual property protection.
But as the number of Western yoga teachers has grown, there has been a steady increase in applications for intellectual property protection. In the United States alone, there have been more than 130 yoga-related patents, 150 copyrights and 2,300 trademarks. Now India's Traditional Knowledge Digital Library is being made available to patents offices throughout the world so they can establish whether the claim is a genuine innovation or "prior art" from Indian systems of medicine.[14]
Apart from the yogic discipline, in case of any claim for intellectual property protection for a medicinal herb, the knowledge about which had existed in the traditional knowledge of any community, such claims are also not valid for obtaining intellectual property protection. For instance, if a company seeks to patent the medicinal use of an herb listed in the TKDL, patent examiners conduct a thorough investigation. According to the merits of the claims, it will lead to a reduction of the scope of the patent or its refusal.
However, the company may still be granted a patent on a new method for industrial-scale production of the active ingredient of the herb, for example, if this process is new and inventive. In such cases, the patent applicants would not claim ownership of the active ingredient itself. The scope would then be limited to a method of producing or isolating the ingredient.[15]
Instances Of Yoga Piracy
Yoga Piracy is a practice of claiming copyrights and patents on yoga postures or sequences of postures, asanas and techniques found in ancient treatises indigenous to India.
There have been instances where the cases have been decided that yoga cannot make subject matter for copyrights or patents.
In Bikram Yoga v. Yoga to the People, well-known yoga practitioner Bikram Choudhury, sued the Yoga to the People – a east Village based yoga studio, claiming that its founder Gregory Gumucio infringed his rights by illegally using Bikram’s copyrighted poses and super-heated rooms inside Yoga to the People classes. It was also claimed that Bikram’s Hot Yoga classes were copied and provided by Yoga to the People, who conducted classes in the name of ‘Traditional Hot Yoga’. While Bikram’s copyrighted Asana Sequence and Dialogue – including a strict 90-minute regimen that follows a rigid format of 26 poses performed in a 105-degree heated room.
Choudhury founded the style called ‘Bikram Yoga’, also known as "hot yoga", in the 1970s and copyrighted it in 2002, as it became successful and began being practiced by a plethora of public figures. The lawsuit sought damages in excess of $1 million, as well as an injunction stopping Yoga to the People from conducting hot yoga classes. Bikram Yoga Manhattan, which is licensed to use the Bikram name, closed its Midtown branch and the owner, Raffael Pacitti, blamed YTTP for eroding his business with rock-bottom prices and uncertified teachers, according to a Daily News article. It costs $10,000 per teacher to be certified as a Bikram instructor, according to the lawsuit.
Gumucio called the lawsuit "ridiculous" and added, "I think that yoga should be made available to everybody. It should be in the hands of the people, not in the hands of a few.” Gumucio said YTTP's mission, which grew to include a dozen studios nationwide — is to provide affordable, accessible yoga. In the face of designer yoga studios and high prices, YTTP offered classes with a suggested donation of $5 or $10 and charges $8 for the “Traditional Hot Yoga” class — less than half the price of an average $20 fee for a single Bikram yoga class.
Many also held the view that something as profound as yoga should not be copyrighted. “It is like writing a book on walking and copyrighting walking.”, was one of the connoisseurs saying about it.
Before each class, instructors at YTTP informed students about the lawsuit and asked them to sign a petition defending the studio. As a result, over 3000 people signed the petition.[16]
Similarly, in Bikram's Yoga College v. Evolation Yoga, Choudhury sued Evolation Yoga for teaching hot yoga with the same sequence of postures as Bikram Yoga. On December 17, 2012, U.S. District Court Judge Otis Wright ruled that Bikram Choudhury does not have copyright protection for the sequence of 26 yoga postures and two breathing exercises commonly known as “Bikram Yoga.” The ruling, in favour of Evolation Yoga LLC and its founders Mark Drost and Zefea Samson, meant that non-Bikram studios are allowed to offer hot yoga classes utilizing that same 26-posture sequence—a legal right Choudhury actively and vigorously contested for several years.[17]
On October 8, 2015, the Ninth Circuit Court of Appeals affirmed, finding that the sequence of yoga postures was not copyrightable subject matter under 17 U.S.C. § 102(b) and that Choudhury's copyright in a book describing his system did not give him copyright over the sequence itself.[18]
Thus, as a result of developments in a series of lawsuits, Bikram Choudhury’s copyright on the specific sequence of Bikram yoga has been overruled by the federal court. All such attempts caused great feelings of indignation and anger in India, where it has been practiced for over 6000 years.
Traditional Knowledge Digital Library
India, by means of a database, tried to establish defensive protection. A team of yoga gurus from nine schools worked with government officials and 200 scientists from the Council of Scientific and Industrial Research (CSIR) to scan 35 ancient texts including the Hindu epics, the Mahabharata and the Bhagwad Gita, and Patanjali's Yoga Sutras to register each native pose.[19]
Now India's Traditional Knowledge Digital Library is being made available to patents offices throughout the world so they can establish whether the claim is a genuine innovation or "prior art" from Indian systems of medicine.
The Traditional Knowledge Digital Library (TKDL) is an Indian digital knowledge repository of the traditional knowledge, especially about medicinal plants and formulations used in Indian systems of medicine. Set up in 2001, as a collaboration between the Council of Scientific and Industrial Research (CSIR) and the Ministry Of AYUSH, the objective of the library is to protect the ancient and traditional knowledge of the country from exploitation through biopiracy and unethical patents, by documenting it electronically and classifying it as per international patent classification systems. Apart from that, the non-patent database serves to foster modern research based on traditional knowledge, as it simplifies access to this vast knowledge of remedies or practices.[20]
As of 2010, transcriptions of 148 books were made, including those on Ayurveda, Unani, Siddha and Yoga in public domain. They expanded into 34 million pages of information, and were translated into five languages — English, German, French, Spanish and Japanese. Data on 80,000 formulations in Ayurveda, 1,000,000 in Unani and 12,000 in Siddha had already been put in the TKDL. Also, it has signed agreements with leading international patent offices such as European Patent Office (EPO), United Kingdom Trademark & Patent Office (UKPTO) and the United States Patent and Trademark Office to protect traditional knowledge from biopiracy, by giving patent examiners at international patent offices, access to the TKDL database for patent search and examination.[21]
The TKDL allows examiners to compare patent applications with existing traditional knowledge. New patent applications need to demonstrate significant improvements and inventiveness compared to prior art in their field. If the medical use of an herb is a traditional practice, and thereby public knowledge, it is considered prior art under EPO regulations.
Even if a treatment is only available in Sanskrit in an Indian library, it belongs to the prior art because it had been disclosed openly in the public domain at an earlier point in time.[22]
"Copyrights over yoga postures and trademarks on yoga tools have become rampant in the West. Till now, we have traced 130 yoga-related patents in the US. We hope to finish putting on record at least 1500 yoga postures by the end of 2009," has said Dr V.P Gupta, of the CSIR, who created the Traditional Knowledge Digital Library.[23]
In the past few years, it has been seen that India has actively participated in conventions and has made efforts to protect its Traditional Knowledge at international level. Access to Indian TK is available at USPTO and EPO and CSIR. It is day by day improving the efficiency of TK database.
Inadequacy Of Protection By TKDL
The digital library, although comprising of voluminous documents and work of Indian traditional knowledge, has its own shortcomings such as; translation problems, disclosure of traditional knowledge as prior art is disadvantageous since it leads to public disclosure of entire traditional knowledge which simultaneously results to fishing expeditions, further one of the major aspect of traditional knowledge is that it is mostly passed by generations in oral manner, therefore, a lot of TK has no documentary record and TKDL maintains no record of oral traditional knowledge.
Unlike other categories of intellectual property rights, India has no substantive act or law to protect traditional knowledge. A sui generis instrument can go a long way in the efficient protection of TK, enforcement of right of indigenous communities, prevent misuse and control of TK, provisions of ABS (access and benefit sharing) system, etc.[24]
In addition to TKDL system, India can work towards a more active approach, foremost to create awareness and understanding among people who are till date completely unaware or have very limited knowledge on Intellectual Property Rights as well as the term ‘traditional knowledge’.
Therefore, the need of a sui generis legislation dealing with the subject of traditional knowledge is real.
Attempt for a sui generis legislation for traditional knowledge – the protection of traditional knowledge bill, 2016.
The Protection of Traditional Knowledge Bill, 2016 was introduced as a private bill by Dr. Shashi Tharoor, a Member of Parliament from Thiruvananthapuram, also the former Under – Secretary General of the United Nations for Communications and Public Information. This legislation treated traditional knowledge as an important subject for protection and distinguished it from other forms of intellectual property.[25]
The Bill was proposed to provide for the 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. This opinion goes hand in hand with the nature of yoga as a traditional knowledge, where it is a complete path by itself and there is no much scope for any innovation.
He advocated for a parliamentary recognition to protect India’s invaluable traditional knowledge with a system of registration that identifies the traditional knowledge with its rightful custodians. He also opined that the State shall be the custodian of all traditional knowledge. He also highlighted the need of ensuring appropriated incentives for further research and development on traditional knowledge. An attempt was also made 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.
Need for the regulated use of the term ‘yoga’
Using the word ‘yoga’ to denote any physical experiment or exercise is erroneous by itself since it does not amount to any proper advancement to the end of the ancient discipline. To bring in an analogy for better understanding, it would be ideal to take the example of ‘medicine’. Medicine as a discipline shall only be practiced by lawful practitioners. Lawful practitioners mean those who practice the discipline after passing all such requirements under law, such as to complete the MBBS course and so on.
Yoga is traditional knowledge and such knowledge only exists to the set of people who have received the knowledge from generations to generations. Since such knowledge is foreign to all other people, many people try to invent some new poses without proper awareness and understanding about the yoga discipline. As a result, they end up with an incorrect pose which based on the physical dimension of yogasanas alone and with some misadventure of such inventor yields to various so-called yoga forms. There have been many usages with respect to physical exercises, which has been labelled as ‘yoga’.
Usages like ‘beer yoga’ must be forbidden since it highly misleads common men about the meaning of yoga. Whether those misadventures are patented or not, intellectual property law must enforce protection of the names of traditional knowledge against such indiscriminate usage so that public is not misled as to the knowledge about the discipline. If the same happens with respect to a medical discipline, where someone claims his own whims and fancies to be a part of the medicinal practice, then it will be highly misleading and unlawful. Such an act is unlawful since it seriously jeopardizes the health of the victim.
But when it comes to a discipline like yoga whose practice does not have a legal protection, it is important to note that indiscriminate usages as to the discipline needs to be prevented since it also can be misleading, leaving alone for a moment the serious jeopardy to the health it might cause. Sometimes, wrong practice might not necessarily lead to health hazards but it does not result in any beneficial result as well. Therefore, it creates doubt and confusion in the minds of the common men as to the efficiency and significance of the practice of yoga.
The reason for the insistence upon the purity of the practice is not for the sake of monopoly, but if ill-informed changes are made in the discipline out of ignorant and overenthusiastic practitioners, it will only lead to the diminishment of the value and effect of the discipline. So, it is vital to protect the purity and integrity of the practice through law and intellectual property law will be an efficient tool to protect this aspect of the traditional knowledge. Nevertheless, well informed innovation can be always made, provided such an innovation results in the achievement of the ends of the discipline and not otherwise.
For example, the practice of Iyengar Yoga, founded by B.K.S. Iyengar, involves use of props[26], chairs, ropes and other specialized articles intrinsic to the practice of hatha yoga. The practice of yoga under this school involves the purest form of practice, though props are used. The object of using the props is to achieve posture perfection or the perfection in practice of the asanas, for those people who may not be able to achieve posture perfection otherwise, due to various limitations and impediments of their bodies and mind. In this case, the use of props is in pursuance of achieving the ends of the discipline, improves the practice of the discipline, which is entirely different from mindless deviations from the practice which do not have any substantial use and are mere results of the whims and fancies of the person who claims it to be an innovation.
Conclusion
The issues relating to Intellectual Property Protection to traditional knowledge are not restricted to a single form of intellectual property but is related to many aspects of it. Especially for a discipline like yoga, the importance of protection of traditional knowledge as such is very important. Since the discipline does not fall under any of the existing pigeonholes of IP protection, the problem arising out of it needs to addressed in a totally different manner.
The existing approach of seeing intellectual property protection as a tool for mere commercial exploitation does not fulfil the demands of protection of the yogic discipline or any other traditional knowledge of similar nature. Though the existing approach to IP law does not expressly undermine any possibility of a sui generis legislation, it is highly unlikely that industrialised states may in turn accept the possibility of granting protection to a new form of IPRs for this type of knowledge.[27]
The feasibility of such miracle to happen on its own seems remote, since the globalised world might only consider any further tools in IPR which might facilitate more industrialisation and not something which would curb their commercial activity. Therefore, it seems that there is a need of sui generis legislation with respect to the protection of traditional knowledge, especially yoga and the regulation of the use of the term ‘yoga’ and many other terminologies intrinsic to the traditional knowledge which needs to be used with integrity and purity in expression so as to prevent miscommunication, or misinterpretation and to prevent its usage in a frivolous or indiscriminate fashion.
It is also important to totally prevent commercial exploitation of Indian Traditional knowledge in an efficient manner. Otherwise there might arise a situation where India would be forced to buy its own traditional knowledge from foreign countries if products involving valuable Indian Traditional knowledge are patented in other countries.
Even if India does not commercialise yogic traditional knowledge, it should at least ensure that the whole humankind assimilates the benefits of Indian traditional knowledge by preventing others from wrongly monetising intrinsic Indian wealth. The knowledge should also be mobilised well throughout India through education systems as it aids individual development of humans and also promotes innovation upon such traditional knowledge. Such dissemination of traditional knowledge will prevent foreign elements from unfair exploitation.
Bibliography
Primary Sources
- Indian Patents Act, 1970.
- The Protection of Traditional Knowledge Bill, 2016.
Secondary Sources
- Elizabeth Verkey, Intellectual Property, (Abhinandan Malik ed., Eastern Book Company 1st ed., 2015).
- Jonathan Curci, The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property, (William R. Cornish et al. eds., Cambridge University Press 2009)
- Patanjali, Patanjali’s Yoga Sutras, (Rama Prasada trans., Munshiram Manoharlal Publishers Pvt. Ltd. 1998).
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