DEFINING TRADITIONAL KNOWLEDGE:
According to the definition of World Intellectual Property Organization Traditional knowledge is: Indigenous cultural and intellectual property, Indigenous heritage, customary heritage rights. Tradition based knowledge having basis in transmission of knowledge from one generation to other. This tradition based knowledge brings covers a variety of knowledge such as agricultural, scientific, ecological, technical, bio diversity based and medicinal knowledge.
CONTEMPORARY TREND ON PROTECTION OF TK:
Presently a lot of misappropriation is being done of the available traditional knowledge, this has led to the criticism of patent law which has not been effective in preventing such acts. Various communities around the world still rely on traditional knowledge for their survival especially on medicinal and agricultural knowledge for example: In Africa 80% population today also depends on their traditional knowledge.
At present there have been instances where industries have been using traditional knowledge in their manufacturing processes without sharing of profits and without taking permission with indigenous communities.
Formal Patent system covers scientific developments as well as individual innovations but it does not cover in its ambit the scope of traditional knowledge and this endangers the knowledge to be considered as open knowledge in public domain and is exploited without proper authorization.
CONTEMPORARY PROVISIONS TO PROTECT TK:
However if we study TRIPS agreement, a limited amount of indirect protection can be taken for TK protection. Geographical Indication tag is one such example where a tag is granted to goods that are produced with some special attributes and characteristics as well as quality in a particular geographical location. This can also be applied to protect TK of a particular geographical location.
DANGERS TO TK:
- Encroachment of Societies:
Traditional societies are being rapidly encroached through huge demand of commercialization of nature leading to loss of living space and TK.
This approach is being used by various pharma companies to find out genetic and biochemical information and exploit it commercially by developing new products based on the knowledge taken.
- Bio- piracy:
This is defined as theft of genetic properties of a particular plant by process of patenting. Various cases biopiracy of Indian TK are present. For example:
i.Turmeric: In 1993 a university in US was granted right over healing of wounds from Turmeric. It has also been grown constantly for centuries in India with utmost awareness. On reexamination Patent was cancelled.
ii. Neem: Has been used as bio pesticide and medicinal plant in India for centuries and also finds mention in vedas was granted patent protection as fungicide in USA. However later this was revoked by European patent office.
iii. Basmati Rice: This variety is grown in parts of India and Pakistan for several years and US patent office granted patent for it. This case was an example to show the problem in TRIPS that patents were granted for biotechnological processes. This case is being rigorously followed by Indian Government on the basis of violation of TRIPS agreement.
iv. Maca: The extracts of these plants are used to improve fertility and sexual function. Therefore in 2001, two US companies patented its extracts on the basis of “ unlockingMaca’s chemical secrets” using advanced processes.
INDIAN SCENARIO OF IP LAW:
There are some provisions in different acts regarding protection of Traditional Knowledge such as Indian copyright act, 1957. Copyright act doesn’t give any specific mention about protection of Traditional literature and art works but it contains Section 31A that gives protection to unpublished Indian works. Similarly, we have Indian Patent act, 1970 that contains Section 25 and Section 64. Here section 25 talks about opposition to patent and preventing any patent grant beforehand and section 64 talks about revocation of patent that has already been granted. But long term solution is absent.
WAYS TO IMPROVE INDIAN PATENT ACT FOR TK PROTECTION:
- Criteria: Proper applicability of criteria for grant of patent should be followed and any error should be avoided.
- Documenting TK: Prepare a document on the TK so that bio-piracy could be checked. If documents are present then it can be made available to patent claimants as a prior art.
- Sui generis system: Sui generis is a latin word that means “one of its own kind”. This can provide a separate protection to genetic resources as well as other traditional knowledge.
- Digital library for Traditional Knowledge: This technique is already being used for Ayurvedic system in India and contains medicinal formulations. Similarly it can be utilized for Traditional Knowledge.
Tushar Srivastava, 2nd Year LLB, Student at Law School, IIT Kharagpur