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TRADITIONAL KNOWLEDGE
The growing commercial exploitation of Traditional Knowledge based resources makes them increasingly vulnerable to misappropriation and misuse by third parties. This calls for an evolution and change in the policy efforts towards adapting to the changing requirements.
The National Intellectual Property Right or NIPR Policy, 2016, states that there is “considerable unexplored potential for developing, promoting and utilizing traditional knowledge of India”.
There is a dire need to reach out to the less visible IP generators like the Traditional Knowledge (TK) holders. The AYUSH Policy of 2002, and the draft that came out in 2016, too support promotion of the Traditional Medicine industry. Additionally, the National Health Policy of 2017 seeks the mainstreaming of AYUSH systems at par with the modern medicines.
These policies definitely makes it evident there constant efforts are being made to move towards greater utilization of TK. Especially, the traditional medicinal knowledge, which, in turn, leads to concerns on protection of the associated resources.
Issues Today Considering most laws are amended or introduced due to evolution and need, similarly the need to protect traditional knowledge have increased with changing time. Especially there is a need to stop the unauthorized use of TK and commercial misuse of such knowledge that follows unauthorized access. It is imperative to protect the indigenous people from such loss of their knowledge and also help them to preserve such ancient practices. Moreover, protection to TK will promote its wider and efficient use. Previously, there have been several cases of IP misappropriation of Indian Traditional Knowledge which have been documented. To exemplify this point, it includes patents granted on wound healing properties of turmeric and fungicidal properties of neem. In fact recently, efforts to claim copyright over yoga postures was also attempted and attach a trademark to Yoga have been reported. This implies that in the absence of an international regime on TK, this misappropriation will continue. The integration of TK into business models as in the case of Yoga and the use of Intellectual Property Rights and commercialization generate further dilemmas for traditional communities. Challenges to protection of TK exist both domestically and internationally. Adequacy of IP protection to Traditional Knowledge in India India has no substantive act or law to protect traditional knowledge unlike other IPR categories. However, other IP acts contain provisions with respect to traditional knowledge. These include Section 25 and Section 64 of the Patents Act, 1970. These provisions give one of the grounds for revocation of a patent application on the basis of traditional knowledge.
Similarly under the Copyright Act, 1957, there is no specific mention of protecting traditional cultural, literary or artistic work or folklore. However, Section 31A provides for protection of unpublished Indian work. Nonetheless copyright protection in for a limited time period and it also demands certain criterions to be fulfilled. Hence, under this IP as well protection of traditional knowledge doesn’t have much scope as of now.
India has actively participated in TK conventions in the past few years and has made genuine efforts to protect its enormous Traditional Knowledge base at an international level. Access to Indian TK is available at US Patent and Trademark Office, European Patent Office and the Council of Scientific and Industrial Research (CSIR) is day by day improving the efficiency of TK database. As mentioned above that the current IPR system cannot protect traditional knowledge, there are 3 concrete reasons.
Firstly, the current system seeks to privatize ownership and is designed to be held by individuals or corporations, whereas traditional knowledge has collective ownership. Secondly, this protection is time-bound, whereas traditional knowledge is held in perpetuity from generation to generation. Thirdly, it adopts a restricted interpretation of invention which should satisfy the criteria of novelty and be capable of industrial application, whereas traditional innovation is incremental, informal and occurs over time. Therefore, a unique form of protection or Sui Generis protection regime is necessary to protect traditional knowledge.
NEED FOR SUI GENERIS PROTECTION FOR TRADITIONAL KNOWLEDGE
Since, the lack of legal ramifications has exposed TK to rampant misuse and IP misappropriation, there lies an increasing demand of Sui Generis system of Protection for traditional knowledge. This type of protection can plug the existing loopholes in the current IP protection regimes and fix the absolute lacuna in law.
Sui Generis is a Latin word meaning ‘of its own kind’. Sui generis instrument shall provide legal framework of protection of TK. Another benefit of such a protection is the enforcement of right of indigenous communities and the prevention of misuse and control of TK. Moreover the provisions related to Access and benefit sharing system defined under common international regimes will also be improved. In addition to TKDL system, India can work towards a more active approach towards creating awareness and understanding amongst people who are till date completely unaware or have very limited knowledge on Intellectual Property Rights as well as the term ‘traditional knowledge’ itself. This is disappointing but with robust efforts this problem can be tackled.