INTELLECTUAL PROPERTY RIGHTS AND TRADITIONAL KNOWLEDGE
Author: Diksha rani , a Student of Presidency university
ABSTRACT
Intellectual property rights serve as regulations for inventions and creative works, protecting the creators’ control over their creations. On the other hand, traditional knowledge, which embodies the commonly accepted beliefs and practices of the local communities, is closely related to cultural heritage and sustainability. The article also provides the mechanism for the protection of Traditional knowledge under existing Intellectual property frameworks. The article also provides for studies, such as the Neem case, Turmeric, and Basmati Rice cases, which illustrate challenges and successes in protecting traditional knowledge. To integrate intellectual property rights with traditional knowledge, a balance must be established between community rights, cultural preservation, and inventive benefits. Collectively, governments, communities, and other interested parties can establish structures that recognize and endorse the diverse manners in which customary knowledge advances worldwide progress and cultural heritage.
Keywords- Intellectual property, Traditional Knowledge. Local communities, inventive steps, sustainability. Recognize.
INTRODUCTION
Intellectual property rights are the legal protections granted to individuals or corporations for their inventions or other creative works. These rights provide creators with complete authority over how their works are shared and used, allowing them to make profits while ensuring that the work they have done is acknowledged. Intellectual property comprises an array of creations, including names, symbols, works of art, inventions, and images used in commercial contexts. These rights are required to encourage economic development, innovation, and creativity, but they also need to be balanced with the public’s right to access information and artistic works.
Traditional knowledge” refers to the ideas, creations, and practices that local communities have developed over several generations within a certain cultural or geographical context. This knowledge is often transmitted orally and encompasses a wide range of subjects such as agriculture, medicine, the environment, folklore, and cultural expressions. Traditional knowledge is an important aspect of cultural heritage and contributes to biodiversity protection, sustainable development, and community resilience.
The traditional knowledge of indigenous and local communities is often intricately linked to their cultural heritage. Unique customs and practices are kept intact and cultural identity is preserved by preserving and protecting this knowledge under the IPR framework. Traditional knowledge-driven concepts and procedures have made major contributions to fields like environmental sustainability, agriculture, and medicine. It is ensured that indigenous groups are acknowledged for their significant contributions to human knowledge by recognizing and safeguarding their contributions under IPR frameworks.
Traditional knowledge can be protected in two ways under the existing IPR regime: defensively and positively that is Defensive protection and Positive protection.
Defensive Protection- This system protects traditional knowledge from unauthorized intellectual property rights acquisition by third parties. The advantages include:
- A provision requiring the disclosure of the origin of genetic resources and any related conventional knowledge that is pertinent to the innovation in the patent application.
- Establishment of a database with all the information on scientific and technical customary knowledge that is accessible to patent reviewers. This kind of database will facilitate the evaluation of the invention’s originality.
Positive Protection – Positive protection is thought to benefit knowledge holders who often acquire intellectual property rights directly through patents or other types of protection. In this regard, states have adopted several actions. Some states believe that safeguarding traditional knowledge can be accomplished with the current IP laws. Others believe that a new system that is compatible with the existing intellectual property system is necessary because traditional knowledge is unique. The processes known as “sui-generis” are what safeguard customary knowledge. States have occasionally modified or improved new intellectual property rights in light of general knowledge.
The Council for Scientific and Industrial Research (CSIR) of the Government of India and the Ministry of AYUSH have collaborated to create the Traditional Knowledge Digital Library. Its objective is to create a single, multilingual repository of data on traditional knowledge currently in use in India. TKDL can be used as a reference by International Patent Offices (IPOs) before art patent examiners.
PATENTS AND TRADITIONAL KNOWLEDGE
Patent is defined under Section 2(m) of the act -Patent as per this section means a patent granted under this Act. With the help of a patent, the government may prohibit the production, use, or sale of an invention for a specific period. By granting exclusive rights to the inventor for their innovations, patent laws primarily aim to motivate innovators to make greater contributions to their fields.
Traditional knowledge cannot be protected by Indian patent laws, according to Section 3(p) of the Indian Patent Act, 1970. An innovation that is essentially traditional knowledge, or a combination of replication of known properties of components that have been known for a long time, does not qualify as an invention and is not protected by patents.
A patent is granted for an invention and invention means a new product or process that has an inventive step and is capable of industrial application. Patent and traditional knowledge are two different concepts that are related to innovation and intellectual property but both concept operates in two different contexts. Traditional knowledge is not protected under patent law since patents need novelty, non-obviousness, and usefulness qualities that traditional knowledge often lacks due to its long history and vast dispersion within indigenous or local communities.
COPYRIGHTS AND TRADITIONAL KNOWLEDGE
Traditional knowledge, in its simplest form, is usually not protected under copyright law since the legislation usually only protects original works of authorship fixed in a tangible medium of expression. It is possible that the originality and addressing requirements for copyright protection cannot be fulfilled by traditional knowledge. Folklore, collective intellect, and cultural expressions that have been passed down through the years within indigenous or local communities are examples of traditional knowledge.
However, certain elements of traditional knowledge may be protected by copyright law under the following situations:
Original Works: If a particular expression or manifestation meets the requirements of originality and fixation, traditional knowledge may be protected by copyright. For example, works of art, original music, or texts written by members of the community may be protected by copyright.
Anthropological and Ethnographic Works: Works documenting traditional knowledge may be protected by copyright if anthropologists, researchers, or ethnographers meet the originality and fixation requirements.
Derivative Works: Traditional knowledge may be modified, rearranged, or altered in ways that are sufficiently original and creative to be protected by copyright.
TRADEMARKS AND TRADITIONAL KNOWLEDGE
Traditional knowledge (TK) may be protected by certain provisions of trademark law; however, the procedures for application and protection may differ from those for conventional trademarks. Protecting distinctive signs, symbols, or remarks that are used in the marketplace to distinguish and identify goods and services is the primary purpose of trademarks. Trademarks may occasionally incorporate traditional knowledge, which encompasses cultural expressions, symbols, and customs when certain conditions are fulfilled.
Collective marks are trademarks used by members of a group, association, or community to denote a certain quality, origin, or other shared characteristic. Some jurisdictions permit the registration of collective marks. Indigenous or local communities may occasionally apply for the registration of collective marks to safeguard customary representations, patterns, or symbols connected to their cultural history. Certification marks are used to demonstrate that goods and services meet specifications or possess particular qualities. Indigenous or local groups may develop certification programs to promote goods and services that are produced using traditional techniques, and traditional knowledge, or that are sourced from particular places. By using certification marks, consumers may recognize and promote products that are connected to traditional knowledge and cultural heritage.
In some cases, traditional symbols, designs, or expressions that are widely recognized and associated with a particular community may be protected as trademarks if they function to identify and distinguish goods or services in commerce. However, the use of such symbols must comply with trademark law requirements, including distinctiveness and non-genericness.
GEOGRAPHICAL INDICATION AND TRADITIONAL KNOWLEDGE
Geographical indication systems have the potential to preserve traditional knowledge under specific conditions. Geographic indications are used to identify a product as coming from a specific place when its quality, reputation, or other characteristics may be largely linked to its geographic origin. Geographical indicators are typically associated with agricultural products, wine, and cheese, but they can also refer to traditional knowledge specific to a certain region.
Geographical indications might include traditional knowledge and cultural traits related to a product’s manufacturing in addition to its physical attributes. Certain handicrafts, textiles, or craft products, may contain traditional knowledge distinct to a specific region. By identifying traditional knowledge with specific geographic regions and cultural identities, geographic indications help in its preservation and promotion. This may promote the empowerment of traditional producers, the preservation of cultural heritage, and the sustainable development of rural communities. Geographical indication systems often include community involvement and collective rights in the governance and management of protected indications. Benefit-sharing contracts, capacity-building programs, and economic prospects for traditional producers and indigenous communities can all be enhanced by this.
DESIGNS ACT AND TRADITIONAL KNOWLEDGE
In general, decorative elements or visually appealing aspects of a product originating from industrial or handcraftsmanship are protected by the Designs Act. Traditional knowledge may be protected under the Designs Act if it meets the criteria for design protection, especially when it comes to cultural expressions, indigenous designs, or traditional arts and crafts. Traditional knowledge may be eligible for protection if it satisfies the originality requirement and has distinguishing non-trivial design elements.
Certain nations have developed sui generis (unique) legal systems specifically intended to protect artistic works and traditional knowledge, either in place of or in addition to design protection. These frameworks could serve as alternatives to the present agreements for benefit-sharing, protection, and acknowledgment for holders of traditional knowledge.
BIODIVERSITY ACT AND TRADITIONAL KNOWLEDGE
Laws of biodiversity often safeguard the rights and interests of indigenous and local communities, which also protect traditional knowledge. These communities are a wealth of knowledge regarding biodiversity, ecosystem management, and the sustainable use of natural resources. Biodiversity laws may promote community-based approaches to conservation and resource management, recognizing the role of indigenous and local communities as stewards of biodiversity and traditional knowledge.
Traditional knowledge related to biodiversity can be protected under the Biological Diversity Act, of 2002. The act mainly aims to protect and promote traditional knowledge from exploitation and unauthorized use. The act regulates access to biological resources by requiring prior approval from the National Biodiversity Authority and State Biodiversity Authority for any kind of research work, commercial use, etc. The National Biodiversity Authority and State Biodiversity Authority maintain databases and registries of traditional knowledge to prevent its misappropriation and facilitate benefit-sharing mechanisms.
PLANT VARIETIES ACT AND TRADITIONAL KNOWLEDGE
Traditional knowledge concerning plant varieties is protected under some sections of the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001. Protecting plant varieties, upholding farmers’ rights, and promoting the development of new plant varieties are the objectives of the PPV&FR Act. The PPV&FR Act acknowledges the contributions made by farmers and local communities, in particular their traditional knowledge, to the preservation and enhancement of plant genetic resources. Traditional plant variety knowledge, often embedded in local farming practices, can be used to produce new plant varieties.
The PPV&FR Act provides a framework for the protection of recently developed plant varieties that are the result of breeding or selection events, even though it does not specifically protect traditional knowledge. Plant breeders can protect their new varieties and obtain the exclusive right to cultivate, market, and sell them by registering them under the Act.
CASES WHEN TRADITIONAL KNOWLEDGE OBTAINED INTELLECTUAL PROPERTY RIGHTS
- The Neem Case – In this case, a US company named W R Grace patented a drug meant to be used as a pesticide. The main and active component of this medicine was neem. Many traditional communities and Ayurveda consider neem to be a well-known remedy for a wide range of illnesses. Neem is also commonly used as a disinfectant by many tribal cultures. The US and EU patent offices gave the medication patent protection, which sparked a lot of debate, especially among Indians. Following that, there was criticism directed against the US and EU patent offices. The EU revoked the patent on the basis that the invention was invalid due to prior knowledge of the same.
- The Turmeric Case- Turmeric is a tropical plant that is grown in East India. India makes substantial use of turmeric powder for food ingredients, medications, and coloring, among other uses. For example, it is used as a blood purifier to cure colds and as an antiparasitic for various skin infections. It is also an essential ingredient in a lot of Indian recipes. In 1995, the United States granted a patent to the University of Mississippi Medical Centre for the use of turmeric for wound healing. The claimed subject matter was the application of “turmeric powder and its administration” for oral and topical wound healing. The exclusive right for distribution and marketing was given to it. The USPTO received a written protest from the Indian Council for Science and Industrial Research (CSIR), which contested the granted patent and provided proof of prior art. While turmeric has long been known to be used in Indian families, finding written material about applying turmeric powder topically and internally for wound healing has proven to be a difficult effort. After comprehensive research, 32 references in Hindi, Urdu, and Sanskrit were discovered. As a result, the USPTO revoked the patent, finding that the claims included within were obvious and reasonable, recognizing the long-standing custom of applying turmeric to wounds. As a result, the Indian-owned TK was safeguarded in the Turmeric case.
- The Basmati Rice case- Regarding the Basmati rice case, RiceTec Inc., USA, was granted a US Patent for “Basmati Rice Lines and Grains” in 1997. To produce new rice lines, twenty-two semi-dwarf types of Pakistani and Indian basmati rice were crossed with standard varieties. The patent application lists twenty causes, including unique lines of rice developed from rice germplasm and different kinds based on traditional farmers-bred varieties. Furthermore, by stealing the name “Basmati,” Rice Tec asserted its exclusive rights to new kinds that were based on traditional rice varieties grown by generations of farmers. Some of the distinctive characteristics of Basmati, which is the larger Punjab region divided between India and Pakistan. As a result, this company was misleading the public about other, inferior products, which impacted the export markets of Pakistan and India. The Indian government applied a re-examination in 2000, citing a lack of inventiveness and originality in the rice lines under scrutiny, in response to criticism from non-governmental organizations (NGOs). The USPTO only approved five of the twenty claims (three independent claims, 8, 9, 11, and their dependent claims, 12 & 13) in 2001 in response to the request. The invention’s title was also altered from “Basmati Rice Lines and Grains” (claim 10) to “Rice Lines Bas.
CONCLUSION
The relationship between intellectual property (IP) and traditional knowledge is a complex and ever-evolving field that requires scrutiny of legal, ethical, cultural, and social factors. Although the protection of original innovations and artistic creations has long been the goal of intellectual property rights, recognizing and conserving traditional knowledge presents unique opportunities as well as challenges.
Within intellectual property frameworks, traditional knowledge must be acknowledged to recognize the contributions that indigenous and local communities have made to creativity biodiversity conservation, and cultural heritage preservation. By addressing the complex challenges and opportunities at this intersection, societies can strive towards more just, sustainable, and collaborative models of innovation and cultural stewardship.
