Intellectual Property Rights (IPR) & Traditional Knowledge (TK)

Intellectual Property Management Industry Alerts

Traditional Knowledge (TK) holds immense cultural, spiritual, and practical significance for indigenous communities. It represents a living body of knowledge passed down through generations, often reflecting the unique identity of the community. However, due to the modern intellectual property system’s focus on novelty, invention, and original works by individuals or companies, protecting TK can be a complex challenge.

Definition of Traditional Knowledge (TK)

Traditional Knowledge is a set of practices, knowledge, innovations, and technologies developed and sustained by indigenous or local communities over time. It is closely tied to their cultural or spiritual identity and is often passed down orally or through practice. TK covers a wide range of subjects such as agricultural practices, medicinal knowledge, ecological wisdom, and artistic expressions. However, because it is not easily attributable to a single inventor or a set period of time, it is often excluded from conventional intellectual property (IP) protections that typically favor inventions or individual works.

Why Should TK be Protected?

TK is the hallmark of sustainable development for many indigenous communities. It is essential for the continued well-being and survival of these communities, especially as external factors such as migration, modern lifestyles, and environmental changes threaten the preservation of traditional practices. Without proper protection, there is a risk of exploitation, misappropriation, or loss of TK, leading to a diminished appreciation and respect for it. Therefore, protecting TK is a matter of cultural preservation and social justice, ensuring that indigenous communities retain control over their knowledge and its uses.

How Should TK be Protected?

The protection of TK requires a multi-faceted approach, involving both developing and developed countries. Protection mechanisms should include:

1. Recognition of Rights: The rights of original TK holders must be acknowledged and respected.
2. Sui Generis Laws: Introduction of specific laws designed to address the unique nature of TK, such as the creation of sui generis legal frameworks that would prevent infringement and outline penalties for violations.
3. International Compliance: Countries should comply with international treaties and conventions that aim to preserve and protect TK.
4. Awareness and Education: TK holders must be educated about their economic rights and benefits, which will enable them to actively protect their knowledge while maintaining accessibility and affordability.

Types of Protection for TK

1. Defensive Protection: Defensive protection aims to prevent external parties from acquiring intellectual property rights over TK. This prevents the misappropriation of TK by outside entities, ensuring that communities retain control over their knowledge.
2. Positive Protection: Positive protection focuses on granting communities the rights to promote their TK, control its use, and benefit from its commercial exploitation. This ensures that the holders of TK can derive economic value while maintaining the cultural integrity of their practices.

The Turmeric Patent Case

One of the most notable cases in the history of IPR and TK protection is the Turmeric Patent Case. In 1995, two Indian scientists working in the U.S. were granted a patent for a method to promote wound healing using turmeric. The patent was assigned to the University of Mississippi Medical Center. However, the Council of Scientific and Industrial Research (CSIR) from India contested this patent, arguing that the use of turmeric for healing wounds had been a well-established practice in India for centuries and thus fell under prior art.

In 1998, after reviewing the claims, the court issued a re-examination certificate, leading to the cancellation of the patent. This case underscored the importance of recognizing the prior knowledge embedded in traditional practices and the need to protect such knowledge from wrongful commercial exploitation.

Impact of the Case and the Development of the TKDL

Following the Turmeric Patent case, India took significant steps to safeguard its traditional knowledge. The Traditional Knowledge Digital Library (TKDL) was established by the CSIR in collaboration with the Department of AYUSH. The TKDL is a comprehensive database that organizes ancient texts and knowledge into 34 million pages. These texts were translated into multiple languages, including English, German, Japanese, and Spanish.

India’s proactive approach includes the creation of the Traditional Knowledge Resource Classification (TKRC) to categorize and structure TK. The TKDL has helped in preventing the misappropriation of India’s traditional knowledge and has made it easier to challenge patents related to TK. Additionally, the World Intellectual Property Organization (WIPO) has recognized India as the only country to set up an institutional mechanism to protect its traditional knowledge.

Protecting Yoga and Other Forms of TK

The Ministry of AYUSH in India has taken further steps to protect traditional knowledge related to yoga. In collaboration with the Sangeet Natak Akademi, they nominated yoga for inclusion in the UNESCO Representative List of the Intangible Cultural Heritage of Humanity to preserve its global cultural significance and protect it from commercial exploitation.

The Protection of Traditional Knowledge Bill 2016

To further protect TK, the Protection of Traditional Knowledge Bill, 2016 was drafted by Dr. Shashi Tharoor, which provides a legal framework to recognize and safeguard the rights of communities over their traditional knowledge. The bill underscores the need for effective mechanisms to prevent the misappropriation of TK while promoting its sustainable and ethical use.

India’s approach to protecting Traditional Knowledge sets a global example for how countries can preserve and promote the unique cultural and intellectual heritage of indigenous communities. By recognizing the importance of TK, establishing legal frameworks, and taking action to prevent its exploitation, India has strengthened the protection of its cultural identity. With ongoing efforts like the TKDL and the Protection of Traditional Knowledge Bill, the country has shown its commitment to ensuring that its traditional practices are protected for future generations.