The Impact of Intellectual Property Rights on Traditional Knowledge

By Poorvi Chothani, Esq. LawQuest, Mumbai

www.lawquestinternational.com
November 24 - 26, 2008

LawQuest 2008. All Rights are Reserved.

Introduction
Traditional Knowledge (TK) is a collective knowledge belonging to an indigenous community Usually passed on from the elder members of the community to younger generations Generally, TK is expressed orally and exists in the form of beliefs, customs, practices, folklore, songs, etc. Need to protect TK by means of Intellectual Property Rights (IPR) is internationally recognized Various international organizations like WTO, FAO etc. are highlighting the need to protect TK.

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Nature of Traditional Knowledge

No universally accepted definition for TK TK is very diverse in nature TK contains a rich understanding of plant, crop and tree species, medicines, animals and local ecological and biological resources. TK differs from modern western knowledge Unlike modern western knowledge, TK does not confer monopolistic rights upon the holders of such knowledge Modern western knowledge is well documented and systematically published through lectures, publications etc. whereas TK is expressed orally E.g. An example of documented TK is Ayurvedic medicines

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Challenges Faced by Traditional Knowledge

Encroachment of the modern lifestyle Reluctance of younger generation to follow and observe TK Lack of respect and recognition to the value of TK Exploitation of TK for commercial purpose without offering compensation to the indigenous community Difficulty in expressing and documenting TK Difficulty in identifying the title holders of TK

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Protection of Traditional Knowledge

Recognizing the value of TK as a major source of information; Granting respect to indigenous communities; Removal (or reduction) of a perceived injustice when such knowledge is misused to create monopolistic rights; Use of TK only with the consent of the indigenous community Preservation of traditional lifestyles; Protection or preservation of the environment; Offering fair compensation to indigenous community if TK is used for commercial gain; and Promotion of its use for further development

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Impact of Intellectual Property Rights on Traditional Knowledge

IP protection entitles the holder to have a monopolistic right to the exclusion of others IPR includes patents, copyrights, trademarks, designs, trade secrets etc. Referring to TK by some kind of mark, symbol etc. will help in identifying TK and prevent its inappropriate use by non-indigenous community e.g. A national certification trademark granted to Aboriginal and Torres Straits in Australia Concept of Novelty and Prior Art and Dichotomy with Patent requirements Impossible to Protect as Confidential Information or Trade Secrets Full disclosure of TK to the Patent examiner and obtaining prior informed consent of the indigenous community by offering them compensation helps in patenting products based on TK e.g. Grant of US patent for healing characteristics of turmeric was denied because of the lack of novelty Expressing TK in the form of writing will enable to grant copyright protection to holders of TK

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Limitations of IPR
Difficulty in expressing TK in the form of writing, mark etc.
Ignoring the existence of TK before granting patents suggests lack of novelty TK belongs to indigenous groups that cannot be easily identified Granting protection to TK only for a limited period cannot serve the purpose of preserving TK

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Geographical Indications (G.I.)

G.I. provides information on the source and origin of the product G.I. reflects the quality, reputation and other characteristics attributed to the products belonging to a particular geographical location G.I. gained its importance as part of IPR under TRIPS Agreement India has enacted the G.I. of goods (Registration and protection) Act, 1999 IPR gives monopolistic rights for new and creative work whereas G.I. is a part of TK belonging to indigenous community

E.g. Basmati rice, Swiss chocolates, Kolhapuri chappals, Darjeeling tea etc.

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Extension of Geographical Indications

Article 23 of Trade Related Aspects of Intellectual Property (TRIPS) Agreement reflects the extension of G.I to wines and spirits Many developing countries including India are highlighting the need to extend G.I to other products to: promote export of valuable goods increase transparency in international trade recognize statutory protection to products belonging to a particular location help in reducing litigation costs help consumers to make informed choice

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International Initiatives to Protect Traditional Knowledge

Paragraph 19 of the Doha Ministerial Conference provided a mandate to the TRIPS Council to examine the relation between the TRIPS Agreement and the Convention on Biological Diversity In 1982, World Intellectual Property Organization (WIPO) and United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted Model provisions for national laws on the protection of expressions of folklore against illicit exploitation and other prejudicial Acts In 1989, Food and Agriculture Organisation (FAO) introduced the concept of farmers rights into its international undertaking on Plant and Genetic Resources In October 2002, member states of WIPO established an inter-governmental committee on IP and Genetic Resources, Traditional Knowledge and Folklore

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Conclusion
Preservation and protection of TK is important for sustainable development of indigenous community TK holders should continue protesting the misuse of their knowledge

International IPR regime has succeeded in protecting TK in some form

Need to create new right to protect TK is a must

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Thank You

LawQuest 2008. All Rights are Reserved.