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Trade Secret: Limited Approach to Protect Traditional Knowledge

All societies have a knowledge base which forms a foundation for the activities of everyday life. Almost all of this knowledge is practical knowledge, i.e. knowledge about how to do something as opposed to knowledge about what something is. It is the fact that form and content of the knowledge are not separated from the bearers of that knowledge. In 21st century knowledge has become a vital commodity for doing business.

The term “traditional” does not imply that this knowledge is old or non-technical in nature but it reflects traditions of the particular communities. It is way in which that knowledge is created, preserved and disseminated.[1]
We had woven the knowledge and ideas into tradition, society and culture. The term ‘Traditional Knowledge’ is collective in nature and is held by such groups and community as a birthright; it may be written down or communicated between generations orally.[2] Traditional knowledge is the information; indigenous people in a given community based on experience and adaptation to local culture environment and have developed over time. These traditional societies not only consume their knowledge for food production by using natural resources but they give them share them receive them exchange them with others different societies.

Thus there is no single definition accepted universally. That verities of definition and defines differently by its perspective.

Wipo-IGC suggest definition

“Traditional Knowledge to refer to traditional base literary, artistic or scientific works, performances, inventions, scientific discoveries, designs, marks names and symbols, secret information and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields. There is neither generally agreed the definition of traditional knowledge nor even a common term to designate this kind of knowledge’’.

Thus, Traditional knowledge refers to knowledge as body of knowledge, customs, cultural works and expressions, intellectual activity in a traditional context and includes know-how, practices, skills and innovations. Traditional knowledge also encompassed belief system that plays a fundamental role in a people’s livelihood, maintaining their health and protecting and replenishing the environment.

Traditional and indigenous knowledge has been used for centuries by indigenous and local communities under customs and traditions. They adapt and to live in harmony with their natural environments throughout the centuries and contribute to modern society with innumerable products.

Some traditional knowledge is closely associated with plants and other biological resources such as medicinal plants, traditional crops and animal breeds. In the biological resources, traditional knowledge is valuable active components. Such generic resources and biological resources linked to traditional knowledge and traditional practices through the utilization and conservation of the resources, which has often occurred over generations.

Traditional knowledge as Intellectual Property

Intellectual property is a generic term which refers to group of legal regime, confers the right of ownership on particular subject matter.[3] Traditional knowledge is a part of the Intellectual property which transmitted from generation to generation. This include practices, belief, information etc. indigenous community, traditional societies are holders / owners of traditional knowledge once their traditional knowledge, information or culture share the other, the community loss the control over them. These systems of knowledge evolved over generation to generation and it is unique for the indigenous people, custom, tradition and land resources. Traditional societies have right to protect their intellectual property against misappropriate use or exploitation of it.

Current Situation about Traditional Knowledge

Today the fact is that 85% to 90% of the basic livelihood needs of the world’s poor (more than half of the world’s population, including indigenous and local communities) are based on direct use of biological resources (and related traditional knowledge) for food, medicine, shelter, transport, etc.; over 1.4 billion poor farmers rely on farm saved seeds and local plant breeding techniques as their primary sources of seeds.

Most of ancient traditional knowledge was not documented and managed properly. Some of them come to be written down on different materials such as stones, copper plates, brick bark, palm leaves and paper but it has been obliterated few survived in time. Western societies also neither recognized any significant value in Traditional Knowledge nor any obligations associated to its use, and have passively consented to or accelerated its loss through the destruction of the communities’ living environment and cultural values.

Today's, industrialization is main factor for loss of Traditional Knowledge. The modern cultural industries (printing, film and record) as well as the manufacturing industries (textile, handicrafts, pharmaceutical, seed, etc.) are commercially exploit the traditional knowledge products for using new technology, without the permission and sharing of profits with the communities.[4] Scientist, researcher are used genetic resources and traditional knowledge for producing some new products, new medicine and new crop varieties without their consent as well as unfairly exploited it and without compensation.

In the past few years, a number of cases relating to traditional knowledge have attracted international attention. Yoga, Neem and turmeric are examples the cases that can arise when patent protection is granted to inventions relating to traditional knowledge which is already in the public domain. In these cases invalid patent granted because the US patent examiners were not aware of the relevant traditional knowledge.

Many discussions have been made on the subject of protecting traditional knowledge. WTO, Conference of parties at the convention on biological diversity, some national governments in these discussions has embraced the view that traditional knowledge needs to secure legitimately. As a result of this the issue of protection of traditional knowledge has been brought to the debate surrounding intellectual property rights and traditional knowledge that has in the public domain has come into question.

Debate on Protection of Traditional Knowledge

The debates open on the inadequacy of intellectual property right in traditional knowledge. The debate has far shown this issue is very complex and controversial. Many scholars suggested that protection of traditional knowledge within the prevailing regime intellectual property right. But this view that only moralistic in nature because intellectual property law have western impression that every person has a moral right to control the product of his or her labour or incentive to create.[5] However, this has led to developing countries felt their traditional knowledge has been unauthorized appropriation of their knowledge. Developed countries create commercial products by the use traditional knowledge, natural resources of developing countries. Intellectual property rights to be obtained to the invention and creation based on existing traditional knowledge.

That the setting up of an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore by WIPO first met in April 2001. The document prepared by the WIPO Secretariat identified whether or not it is possible for traditional knowledge holders to use the existing intellectual property law their advantage. In this regards mainly three limitation meet. The first Intellectual property system never facilitated the custodians of traditional knowledge to enjoy and share the benefits derived from the new commercial exploitation of their knowledge base. Secondly, the concept of ‘originality’, ‘novelty’, ‘utility’, ‘non-obvious or inventive step’ etc., used to find out the items that are to be protected through the Intellectual property system, addressed only the scientific developments based on the western science. Similarly the identity of the creator of the new knowledge - author or inventor - also reflects the individual private property underlying the protection of intellectual property.

Thirdly Intellectual Property Right protect idea, innovations, creativity and expressions. Thus, the concept of protection applied under Intellectual Property Rights is quite different from of ‘protection of Traditional Knowledge’. The protection of Traditional Knowledge is a framework that encourages the preservation and conservation of traditional practices, culture and knowledge because it is vital element of cultural heritage of humanity. Although intellectual property rights derived from traditional knowledge may be acquired legally, failure to recognize the contribution of the traditional knowledge holder and to share benefits and economic gains.

Trade Secret

The issue protect traditional knowledge has receiving increasing attention in CBD and its Conference parties. The international community recognize that there is need to alternative protection regime to accommodate the protection of traditional knowledge. There are number of discussion for the alternative measures which extend to intellectual property rights to trade secret.

The agreement on trade related Aspects of intellectual property rights i.e. TRIPS Agreement specific provisions recognize secret information or undisclosed information as being protectable intellectual property. Prior to this agreement, Article 10bis of the Paris convention (covering unfair competition) provides support for international standard of trade secret protection under TRIPS. Trade secrets are protected against dishonest commercial practices. Art.39.2 of the TRIPS stated that the IP protection of trade secret, “Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to acquire by or used others without their consent in a manner contrary to honest commercial practices so long as such information”

It means that the rules generally do not provide the holder an exclusive right in secret information. But it prevents and controls the acts of disclosure and acquisition and use without the consent within the commercial practices.

Trade secret as defined in the Black’Law Dictionary[6] means:

“A formula process, device or other business information that is kept confidential to maintain an advantage over competitors; information including a formula, pattern, compilation, program device, method, technique or process that devices independent economic value, actual or potential from not being generally know or readily ascertainable by other who can obtain economic from its disclosure or use, and is subject to reasonable efforts, under circumstances, to maintain its secrecy.”

Essentials of Trade Secret

Therefore, it means that three elements are required for knowledge to classify as trade secrets. The knowledge
• must have commercial value
• must not be in the public domain, and
• Is subject to reasonable efforts to maintain secrecy.

Trade secrets play an important role to protect traditional knowledge if the above conditions are satisfied. Traditional knowledge that is maintained within a community could be considers a trade secrets. The fact is that to be protected as a trade secret, the subject matter must be kept ‘secret’ although it will depend on how the term is construed.[7]

Traditional Knowledge as a Trade Secret

According to Srividhya Ragavan, Trade secret is recognized as one of the best forms of Intellectual Property Right to protecting traditional knowledge.[8] It protects the owner from disclosure or unauthorized use of knowledge. It is better than other Intellectual Property Right protection used to protect non-disclosed traditional knowledge. This area of law concerned with secrets of all kinds.[9] It covers all patterns i.e. method, technique, recipes for food and beverages or process that gives a competitive advantage. Since it covers a wide range of information, traditional knowledge that is maintained within the community by individuals or members can consider a trade secret. A trade secret can be a useful vehicle for traditional knowledge holders when dealing with outsiders’ improper acquisition, disclosure, and use of relatively secret information.[10] Trade secret law could be used to the benefit of a community because there is exchanging information with outsiders by agreements or contracts that ensure confidentiality. If third parties obtained secret information by illicit means, legal action might be undertaken by trade secret laws.[11]

In the case of trade secret, the information is protected in perpetuity; there is no requirement of criteria like the novelty, non-obviousness, etc. however absence of any specific trade secret legislation in India can be a serious detriment to this type of protection. However, nevertheless, there are cases whereby the Indian courts have imported common law principles for the protection of secret knowledge.[12] The law of confidentiality and trade secrets has been successfully used to protect non-disclosed traditional knowledge; Courts may awards remedies for breach of confidence when customary laws of secrecy violated. Traditional knowledge often conceptualized as a form of collective intellectually property.[13]

Limitation of Trade Secret Protection

Trade secrets protect undisclosed knowledge through secrecy and access agreements. Traditional knowledge that is maintained within a community could be considered a trade secret. But once the knowledge is diffused to the public, this option no longer exists. A trade secret is only enforceable as long as it remains a secret except in cases of “Breach of Confidence”. Trade secrets per se cannot be legally protected, as they are secrets, what will be enforceable are the consequential effects of breach of trust or legal contracts. It means that secrets diffusion to the public in order to compensate for the loss of secrecy.[14] It is remember that all traditional knowledge not said to be secret. Traditional knowledge is a part of the Intellectual property which transmitted from generation to generation. It is difficult to protect trade secrets against misappropriation due to lack of legal entitlement to the bearer of the secret. When applied to knowledge belonging to a community, the community must make a reasonable effort to maintain the secrecy of the knowledge. If there is not a reasonable effort to maintain the traditional knowledge’s secrecy, then trade secret protection is not applicable to the traditional knowledge.

Despite its seemingly expansive range of protection, trade secret law cannot satisfactorily protect Traditional Knowledge of indigenous peoples. First, the knowledge must be confidential or secret for which protection is sought. It must not be public property or knowledge. However, traditional knowledge strongly believes in sharing knowledge and considers it part of the public domain. The knowledge of traditional community is passed on generations and outsiders who subsequently publish it, it become difficult for community to control secrecy because it falls in to public domain. Then it is not secret or protected by law and it can be freely available to anyone.
Second, essential requirement is that the information be economic value. It is difficult to traditional knowledge holder to prove the economic value because it holds scared value only. Third, is that the information must be related to trade and industry. Traditional knowledge holder may not use the knowledge or information in trade or industry. Fourthly, it has also been suggested that to be trade secret the information must be have an existence separate from its owner. It is difficult to holder of traditional knowledge, because traditional knowledge is an integral part of the lives of those who practice it daily and rituals.

Finally, it provides remedies only once the secret has been disclosed. Traditional Knowledge is secret and sacred and their very disclosure to the uninitiated persons violates their sanctity. Over the above the difficulty involved in attempting to meet these specific requirements, it is not possible to protect traditional knowledge by trade secret law. It is limited and inadequate approach for protecting traditional knowledge.

Sui Generis System

There is strong recommendation to and has been advocated many NGOs and academics that countries should invest in the alternative creation “Sui Generis Law” which is development of intellectual property law, suitable to their cultural and natural resources and traditional knowledge. In 2002 WIPO prepared a paper focusing on developing of Sui Generis system and 2003 the WIPO General Assembly decided that IGC would focus on the international recognition on this subject. [15]

Sui generis is a Latin word. It means “Unique” or “Special”, leaving the Sui Generis system open to interpretation. Sui Generis offers a unique type of intellectual property right, which is different from the classical IPR, as is the case with the patent. All Sui Generis models that could be tailored to specific needs and circumstances of the members are legally recognized systems.[16] It is recognized that the specific needs and circumstances in each country vary and in this respect the differences between the developing and the developed countries are very wide in several aspects. Therefore, it is obvious that a Sui Generis system of protection appropriate for a developing country may require certain modifications in another developing country and these systems may not be even relevant to a developed country.

India is rich country of biodiversity and cultural resources, but the lack of system to safeguard, protected these resources in globalized world. Many indigenous communities of India rely on traditional knowledge for livelihood and identity; its misappropriation can severely prejudice their interest and rights. Biopiracy is a very real threat, the need to safety of India’s traditional knowledge. India has been several cases of bio-piracy of TK from India. First it was the patent on wound-healing properties of haldi (turmeric); now patents have been obtained in other countries on hypoglycaemic properties of karela (bitter gourd), brinjal, etc. As a result of this Mrs. Shashi Tharoor,[17] had introduce private bill in the parliament to protect traditional knowledge on 10.03.2017 which was pending. The Bill does not restrict the use of traditional knowledge but it provides the safeguards to custodians’ communities, protecting them from abuse and exploitation. Bill will protect India’s traditional knowledge from foreign appropriation, and will provide an opportunity for Indians to learn about their culture and practices through legitimate system.

Effectiveness of Sui Generis

The TRIPS agreement itself does not provide any protection for the traditional knowledge but it creates flexibility for establishing alternative non-conventional intellectual property conventional regime. Article 27.3(b) in TRIPS agreement stated to members may establish effective Sui Generis regime.

"Members may also exclude from patentability..... plants and animals other than microorganism and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective Sui Generis system or by any combination thereof.”

But the TRIPS agreement Effectiveness of the Sui Generis is not defined. According to Dutfield, Legislation could be drafted in such way as to allow a community to become the successor in title of discovery and development process. Under this interpretation communities have right to protect traditional practices and usual appropriation by others of the commercial value from their knowledge. As a right holder they would have exclusive rights to withhold from third parties their consent to make, use, sale or import that they developed.[18]

India is, therefore, should taking appropriate steps towards framing a law and to give effect to under the TRIPS, CBD have reiterated India’s stand in different Intergovernmental Committee working on the protection of traditional knowledge. As a result of this, India has adopted three interrelated legislation by positive protection.
· the Patent’s (Amendment) Act, 2005 (effective from 1st January 2005);
· the protection of plant varieties and farmers rights Act, 2001 (PPVFR Act), and
· the Biological Diversity Act, 2002.

Conclusion
This paper has provided the trade secret limited approach to protect traditional knowledge. In view that trade secret as a part of conventional intellectual property law does not adequately measures for the protection of traditional knowledge and innovations of traditional and indigenous knowledge. However, traditional knowledge is not only secret but also scared knowledge. Trade secrets does not meet specific requirement to protect traditional knowledge. At present, Indigenous people do not have strong institutional arrangement to safeguard their intellectual property and secret in modern economic space. It proposed that the establishment of Sui Generis system to protect or cover traditional knowledge.

End-Notes
[1]. Jonathan Curci, The Protection Of Biodiversity And Traditional Knowledge In International Law Of Intellectual Property, 15-16, (1st Ed, 2010).
[2]. Sophia Twarog & Promila Kapoor, Protection and Promoting Traditional Knowledge: Systems National Experience and International, UN Conference on Trade and Development, United Nations : New York and Geneva., Page No.223
[3] Dr. Peter Drahos, The university of Intellectual Property Rights: Origin and Development, University of London, Herchel Smith Senior Fellow, Queen Mary Intellectual Property Research Institute, Page No.1-2
[4] S.K. Tripathi, Traditional knowledge: Its significance and implications, 2(2) IJTK, , Page No.1-2 April 2003
[5] David Downes, How Intellectual Property Could be a Tool to Protect Traditional Knowledge, Columbia J.E.L. 261-64
[6] Bryan A. Garner: Black's Law Dictionary.9th ed.West Group, 2009.
[7] Manisha Singh, Protection on Trade Secrets, Lexorbis, (Sept.21, 2017), http://www.mondaq.com/india/x/52466.
[8] Varadarajan, Deepa, A Trade Secret Approach to Protecting Traditional Knowledge, 36 Yale L.J. 372, 418--419 (2011).
[9] David Bainbridge, Intellectual Property, London: Pitman Publishing, (4th ed. 1999).
[10] Varadarajan, Supra Note 8.
[11] Bhatti, Shakeel, Intellectual Property Rights and Traditional Medicine, Paper presented at the ASEAN Workshop on the TRIPS Agreement and its Impact on Pharmaceuticals, Jakarta, May 2000.
[12] Zee Telefilms Ltd. vs. Sundial Communications Pvt. Ltd., 2003 (5) Bom CR 404.
[13] Pande, Vaibhavi, “Protection of Traditional Knowledge as Trade Secrets”, access on 25th Jan. 2015 available at : http://www.lexology.com/library/detail.aspx?g=93cc3cbe-6247-489c-b820-f2f081667be6
[14] Manisha Singh, Protection on Trade Secrets, Lexorbis, (Sept.21, 2017), http://www.mondaq.com/india/x/52466.
[15] WIPO/GRTKF/IC/4/8, Elements Of A Sui Generis System For The Protection Of Traditional Knowledge, Intergovernmental Committee On Intellectual Property And Genetic Resources, Traditional Knowledge And Folklore Fourth Session Geneva, December 9 To 17, 2002.
[16] Manish Ranjan, Protecting Tradition And Culture In India Development of A Sui Generis System, Legal Service India, http://www.legalservicesindia.com/article/2129.
[17] India’s External Affairs Minister
[18] Rajib Bhattacharyya, Interface Between Intellectual Property Rights, Traditional Knowledge & Human Rights, 2(2) IJMART, 113, 97-116 (March-2015).

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