Intellectual Property Rights in Traditional Knowledge

INTRODUCTION

Knowledge has, since the evolution of mankind, been treated as the most cherished possession of humanity. In ancient times, knowledge was purely a matter of fame and reputation and was disseminated with no returns. However, various developments have occurred in the evolution of societies that recognized knowledge as property, and many rights were attached to the knowledge holder.

The industrial boom created by the Industrial Revolution highlighted the importance of technology and innovations. It resulted in the realization that certain types of knowledge require protection for the benefit of the greater good of society, thus leading to the concept of intellectual property (IP) creating rights over certain sets of knowledge. When the society transformed from pre industrial society to an industrial one, developed countries moved towards technological orientations leaving behind traditional practices and knowledge and embracing newer practices and ideas having much commercial potentiality.

The intersection of intellectual property (IP) rights and traditional knowledge represents a complex evolving area of law. Traditional knowledge, encompassing the cultural, environmental, and scientific knowledge passed down through generations within Indigenous and local communities, faces unique challenges when integrated into modern IP framework. This article explores the development, challenges and ongoing efforts to protect traditional IP rights.

UNDERSTANDING TRADITIONAL KNOWLEDGE

Traditional knowledge refers to the vast knowledge, innovations, and practices that Indigenous and local communities have developed over time. This includes the medicinal practices, agricultural techniques, biodiversity conservation methods, and cultural expression. Unlike conventional knowledge, traditional knowledge is deeply rooted in the cultural context and collective experience of community, rather than individual invention.

To India, protection of traditional knowledge is very important for many reasons. India is predominantly a biodiversity-based economy. India is rich in biological and cultural diversity. India is home to 400 unique ethnic groups who possess various Traditional knowledge. India also houses over 47,000 species of plants and around 89,000 species of animals.[1] People in India have a very valuable collection of knowledge about trees and plants and their medicinal qualities. India is rich with many traditional healthcare practices including Ayurveda and Unani. The Knowledge Commission of India has emphasized the importance of Traditional knowledge by stating that 70% of people living in Indian villages depend on traditional medicines for their health care.[2]

INTELLECTUAL PROPERTY RIGHTS FRAMEWORK

Intellectual Property Rights are legal protections granted to the creators and inventors to safeguard their creations and inventions. These rights typically include patents, copyrights, trademarks, and trade secrets. While traditional IP frameworks were not originally designed to accommodate Traditional knowledge, several aspects of these rights have been considered in the context of traditional knowledge.

PATENTS

Patents protect inventions and processes for a limited time, granting exclusive rights to the inventor. However, traditional knowledge often involves collective practices and communal knowledge rather than individual inventions. Consequently, patenting Traditional knowledge can lead to issues such as biopiracy, where companies patent traditional practices or genetic resources without acknowledging or compensating the originating communities. For instance, US patent on use of turmeric for healing wounds (although this was successfully challenged by Indian government). This has raised significant concerns about the appropriateness of the patent system. 

COPYRIGHTS

Copyright law protects the authenticity of authorship, including literary, artistic and musical works. While copyright might apply to certain expressions of traditional knowledge such as folklore or traditional art etc, it often falls short in underlying various cultural aspects of traditional knowledge. That is the reason why, Despite remarkable progress in many fields, we have still not been able to feed, clothe, shelter, educate or employ all our people. While the size of our population has been held out as the main reason for the scarcity of all resources, it appears that there is another very important dimension to this phenomenon. This has something to do with the very image we have of what constitutes resources for development in our context.

For instance, in the” Hoodia” patent case (2001), the Hoodia plant is used traditionally by the San people of South Africa for appetite suppression was patented by a Western company. This lead to a legal and ethical debate over the rights of Indigenous people.

TRADEMARKS

Names, symbols, and other identifiers that set products and services apart are protected by trademarks. Whereas trademarks can be used to protect traditional products and brands, by doing this they fail to address the broader issues of cultural appropriation and communal ownership of conventional knowledge. They are more for commercial products.

 In the “Saris” Trademark, the term “sari” or saree which is a traditional garment usually worn by women in South Asia , has faced severe trademark issues in the jurisdiction. Some companies have attempted to tamper with the trademark which gave it more of a commercial character and misappropriated its traditional nature.

In the “Kashmir” Trademark, a lot of issues arose surrounding the “Kashmiri products such as shawls and carpets These disputes often involve questions about the use of regional names that are closely tied to traditional crafts and cultural identity.

TRADE SECRETS

Trade secrets safeguard private company knowledge that gives an advantage over competitors. While this might seem relevant for Traditional Knowledge, many traditional practices and knowledge are publicly accessible and not confidential in the traditional sense. Thus, trade secrets offer limited protection for Traditional Knowledge.

CHALLENGES OF PROTECTING TRADITIONAL KNOWLEDGE

1. MISAPPROPRIATION AND BIOPIRACY

One of the significant challenges in protecting Traditional knowledge is the risk of misappropriation and biopiracy. Companies and researchers sometimes exploit traditional knowledge without proper acknowledgment or compensation to the communities from which the knowledge originates. This exploitation can undermine the cultural heritage and economic well-being of indigenous and local communities.

2. INADEQUATE LEGAL FRAMEWORKS

Existing IP laws were not designed with Traditional Knowledge in mind and often fail to address the unique characteristics of traditional knowledge. For example, the individualistic nature of IP laws conflicts with the communal ownership and intergenerational transmission of Traditional Knowledge. This inadequacy creates gaps in protection and enforcement.

3. CULTURAL SENSITIVITY

Traditional knowledge is often embedded in cultural practices and rituals. Legal frameworks that do not account for the cultural significance of Traditional Knowledge may inadvertently disrespect or exploit these practices. Any legal protection mechanism must balance the preservation of cultural integrity with the need for legal protection.

EFFORTS TO PROTECT TRADITIONAL KNOWLEDGE

Recognizing the limitations of traditional IP systems, various international and national initiatives have been undertaken to develop frameworks specifically designed to protect Traditional knowledge.

1. The Convention on Biological Diversity (CBD)

The CBD, adopted in 1992, includes provisions that address the protection of Traditional Knowledge. Article 8(j) of the CBD calls for the respect, preservation, and maintenance of Traditional Knowledge, and encourages the fair and equitable sharing of benefits arising from its use. The Nagoya Protocol, adopted in 2010, further elaborates on access to genetic resources and the sharing of benefits, including aspects related to Traditional Knowledge.

2. The World Intellectual Property Organization (WIPO)

WIPO has been actively involved in developing mechanisms to protect traditional knowledge. The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore has been working on policy options and legal frameworks to better accommodate Traditional Knowledge within the IP system. WIPO has also promoted the development of sui generis systems—legal frameworks specifically tailored to Traditional knowledge.

3. National Legislation

Several countries have implemented national laws to protect traditional knowledge. For example, India’s Protection of Plant Varieties and Farmers’ Rights Act, 2001, incorporates provisions for the recognition and protection of farmers’ rights and traditional knowledge related to plant varieties. Similarly, the Traditional Knowledge and Traditional Cultural Expressions Act in Peru offers protection for traditional cultural expressions and knowledge.

4. Community-Based Approaches

In addition to formal legal frameworks, community-based approaches to protecting Traditional Knowledge have emerged. These include the establishment of community registers, certification systems, and collective agreements that recognize and protect the rights of indigenous and local communities over their knowledge. Such approaches often emphasize community control and benefit-sharing arrangements.

CASES OF BIOPIRACY: INTERNATIONAL SCENARIO

• AMAZONIAN AYAHUASCA CASE

Banisteriopsis caapi, the plant known as ayahuasca, is indigenous to the Amazon rainforest. The term “Ayahuasca” describes a medicinal beverage made from a combination of two or more different plant species that, when combined and ingested ceremonially, can have profound effects on the mind, body, and spirit. The plant is well known for its medicinal and hallucinogenic properties. The Ayahuasca vine has been used by healers and religious leaders throughout the Amazon for generations. For hundreds of years, shamans have used 89 ayahuasca to treat sicknesses. Many indigenous Amazon tribes view the plant as a sacred symbol of their religion and use it in sacred indigenous ceremonies.

 In 1986, an American scientist and entrepreneur obtained a U.S. patent on a strain of the ayahuasca vine. The scientist obtained samples of a local ayahuasca vine in 1974 from a tribe in Ecuador[3]. Upon returning to U.S., he cultivated the plant in Hawaii and developed a stable variety, which he called Da Vine. He stated in his patent application that he had originally obtained the ayahuasca from a “domestic garden in the Amazon rain forest of South America.” He claimed that Da Vine represented a new and unique variety of ayahuasca distinct from other forms primarily because of the color of its flower petal.

 In 1994, the Coordinating Body of Indigenous Organizations of the Amazon Basin (COICA) learned about the patent. The vine is a recognised medical herb and a holy religious symbol, according to a committee that represents more than 400 indigenous tribes and groups in South America, who objected to the patent. On behalf of the COICA, Center for International Environmental Law (CIEL), filed request for re-examination of the patent. On November 03, 1999 USPTO rejected the patent by accepting the argument that the variety was not distinctive or novel though it did not admit the argument that the plant’s religious value warranted an exception from patenting. Surprisingly, in January 2001, the USPTO reversed its rejection and issued a certificate in April allowing the patent to stand for the remaining two years of its term.

• BOLIVIAN QUINOA CASE

Quinoa (Chenopodium quinoa) is a high protein cereal which is an important dietary component of millions in Andean countries, especially Indigenous people. Since pre-In can times, indigenous people in Argentina, Chile, Bolivia, Peru, and Ecuador have been developing varieties of quinoa suitable for the wide variety of harsh conditions in the Andes. Grown under tough ecological conditions such as frigid temperatures, minimal rainfall, high elevations, and very poor soils, quinoa is a very durable and drought-resistant plant.

Scientists have demonstrated that quinoa has equal, if not superior, protein to powdered milk. Furthermore, quinoa has more than three times more calcium and two times more phosphorous when compared to wheat. Bolivia exports quinoa worth an estimated $1 million each year[4]. Two Colorado State University scientists were granted a US patent (No. 5,304,718) in 1994 for Bolivian quinoa. The male sterile plants of the native Apelawa quinoa variety in Bolivia and their application in the development of additional hybrid quinoa types were the subject of the patent. The broad-spectrum patent protected all quinoa hybrids, including 36 traditional types, that were produced from Apelawa, the male sterile cytoplasm found in quinoa. It was not restricted to any particular hybrid.  The ‘inventors’ admitted that they have done nothing to create male-sterile varieties of Apelawa quinoa and its use in creating other hybrid quinoa varieties. However, they claimed they were the first to identify and use a reliable system of cytoplasmic male sterility in quinoa for the production of hybrids although Andean farmers have long known that the male flower of the Apelawa variety is sterile.

The indigenous community staged many protests against the patent. Following a lengthy fourteen-month effort, Andean farmers were able to compel Colorado State University to give up the Apelawa quinoa patent in May 1998.

CONCLUSION

Protecting traditional knowledge within the intellectual property framework presents opportunities and challenges. While traditional IP rights were not designed to accommodate Traditional Knowledge, ongoing efforts at international, national, and community levels seek to address these gaps and provide more suitable protection mechanisms. Balancing the need for legal protection with respect for cultural heritage and communal ownership remains crucial. As the dialogue between IP law and traditional knowledge continues to evolve, it is essential to consider the unique characteristics of Traditional Knowledge and ensure that protection mechanisms align with the values and needs of the communities that hold this knowledge.

References:

[1] “Protection of Biodiversity and Traditional Knowledge – The Indian Experience,” submission by India at Committee on Trade and Environment Council for Trade Related Aspects of Intellectual Property Rights, WT/CTE/W/156, IP/C/W/198, 14 July 2000, p.1.

[2] See, , visited on January 12, 2009

[3] Leanne M. Fecteau, “The Ayahuasca Patent Revocation: Raising Questions about Current U.S. Patent Policy” at , visited on 2-08-24.

[4] See <House of Commons – Environmental Audit – Appendices to the Minutes of Evidence (parliament.uk)> , visited on 2-08-2024