What is traditional knowledge and can IPR protect it?

Intellectual property rights and laws across the world were developed in contemporary times and have since kept up with technological advances. However, almost all countries, especially India, have a wealth of knowledge that was developed by native communities and indigenous people. This bank of knowledge has been passed down generations and have come to represent the identity of the community.

A striking example of traditional knowledge is Yoga—a combination of mental, physical and spiritual exercises—that dates back to ancient pre-Vedic India. The exercises developed by our ancestors have been handed down over generations, modified over time and are still relevant in contemporary times.

In the early twenty first century, a movement was organized for the protection of traditional knowledge as an intellectual property of a community. Modelled on technology, industry and innovation, most contemporary intellectual property rights and laws across the world do not afford protection to traditional knowledge.

India, too, does not have separate laws for traditional knowledge. However, there are ways to protect traditional knowledge in the Indian patent system and laws. Our efforts in defensive protection have been recognised worldwide.

But first things first:

What is traditional knowledge?

As the name suggests, traditional knowledge is a bank of wisdom, philosophies, observations, art, literature or expertise that is developed by indigenous people or a community. This bank is inherited through generations within a community. For many communities, these knowledge banks are now a cultural identity. In several communities, livelihoods of community members depend upon this wealth of knowledge.

As it is passed down through generations, this bank is continually developed and modified, making it a living body of knowledge. These valuable knowledge banks are often used and exploited, particularly in the field of science and medicine.

Therefore, indigenous communities are now demanding recognition of traditional knowledge as intellectual property.

Why should traditional knowledge be protected?

Traditional knowledge is important to the integrity of a community. Livelihoods depend on these knowledge systems. Protection of traditional knowledge in Indian patent will not only prevent exploitation of traditional knowledge, but will also help record these knowledge banks.

Many of these traditional knowledge systems are passed down orally and tracing the origin of these systems often becomes difficult. This in turn opens the traditional knowledge systems to exploitation.

One of the key reasons to protect traditional knowledge is to prevent the commercial exploitation of this knowledge system.

In fact, biopiracy is a matter of great concern for indigenous communities and natives. Many native communities have used natural ingredients such as spices and herbs for their medicinal properties. These practices are now being used by large industries without giving due credit to those who developed them. This is called bio-piracy. For example, communities practicing unani or Ayurveda are concerned that the pharmaceutical and beauty industries are exploiting their knowledge (which they’ve gathered over centuries) to make huge profits.

Challenges in protecting traditional knowledge

The absence of adequate laws is only one part of the problem when it comes to the protection of traditional knowledge. There are other challenges that crop up in the quest to protect traditional knowledge:

1. Traditional knowledge, in most cases, is passed down orally from one generation to the next. Without written material, it becomes difficult to trace the origin of the knowledge system. In India, the problem is complicated by the fact that traditional knowledge exists in many different languages and dialects. For example, in the absence of written evidence, the origin of Yoga is not known. While some texts suggest that the practice was present during pre-Vedic era, many have argued that Yoga was first mentioned in the Vedas. Without a credible source, it becomes difficult to protect traditional knowledge of a community, as other communities may claim rights to the same.
2. Most IPs, including patents and copyrights, are granted for a period of time, say 10 years or 20 years. In case of traditional knowledge, the period of protection is a bone of contention. How long can traditional knowledge systems be protected, especially since the knowledge systems are themselves evolving, is a question.
3. There are no specific laws to protect traditional knowledge systems. Some parts and sections of existing laws can be used to protect the rights of the communities.

How does traditional knowledge intellectual property work?

The World Intellectual Property Organisation, too, takes cognizance of the problem. It has reiterated the need for providing protection to traditional knowledge systems through intellectual property rights.

Primarily, there are two methods for providing protection to traditional knowledge systems.

1. Defensive protection: One way of protecting traditional knowledge systems is to provide legal remedies to the community that prevents exploitation of their knowledge systems. This is called defensive protection and is developed with a combination of legal remedies and strategies that can prevent third parties from exploiting the community knowledge networks. One efficient way of doing so is by making a list of existing traditional knowledge systems available to patenting authorities. These lists or ready reckoners can be referred to by patenting authorities while granting patents.
2. Positive protection: Knowledge holders are empowered to seek remedies against misuse of traditional knowledge and also benefit from commercial windfall. Many countries have instituted specific laws that allow knowledge holders to decide what they want to do with the knowledge. They can promote their knowledge bank and amicably partner with commercial organisations to further the knowledge system.
3. Other methods of protection: There are legal remedies within the Indian judicial system that can help protect traditional knowledge. For example, equitable benefit sharing is an agreement that two parties, including indigenous communities, can sign in order to use the knowledge bank for commercial use. Another positive protection tool available to communities and third parties is the Prior Informed Consent, where a third party can seek full consent of the knowledge holder and then use the knowledge.

India’s efforts in protection of traditional knowledge

India garnered global attention with the curious case of turmeric. In a landmark win in 1997, the Council of Scientific and Industrial Research (CSIR), India, was able to revoke a patent filed by two US-based scientists.

The case began in 1995 when two scientists of the University of Mississippi Medical Centre were granted a patent by the US Patents and Trademarks Office (USPTO) for discovering the wound healing properties of turmeric.

This came as a shock to India, where people have used turmeric to treat several ailments including wounds, for many generations. The CSIR then appealed to the USPTO to revoke the patent on the grounds that it was ‘prior art’, a kind of traditional knowledge. What followed was a battle between USPTO and CSIR. Eventually, the CSIR convinced USPTO that the healing properties of turmeric were indeed traditional knowledge. The patent was thereafter revoked.

The episode of the turmeric patent was treated as a red flag for the exploitation of the country’s traditional knowledge, especially in the field of medicine. Since then, CSIR and the government have prepared a digital library for traditional Indian medicinal knowledge. This library has been created to protect the traditional knowledge of Indian medicines and curb misappropriation at International Patent Offices.

Over the years, the Traditional Knowledge Digital Library has systematically and scientifically recorded traditional medicinal knowledge such as Ayurveda and unani from ancient Indian texts. These recording have also been translated into various global languages.

According to the official website of the Traditional Knowledge Digital Library, there are more than 3.6 lakh formulations or practices recorded in the database.

Protection of traditional knowledge on the global scale

The World Intellectual Property Organisation (WIPO) recognises the need for a global solution for the protection of traditional knowledge. Even as some countries provide for such protection, these protections are not available on a global platform.

Communities from across the world are demanding a global legal tool that will provide equal rights for their traditional knowledge. This is referred to as a ‘suis generis’ protection.

However, to bring about such a tool, countries will need to agree on what constitutes traditional knowledge and what rights knowledge-holding communities should have. While on one hand communities want to protect their heritage from exploitation, industry experts believe that such a treasure trove of knowledge should be made available to the public.

While countries agree that suis generis protection is imperative for traditional knowledge, not all countries agree on how this protection can be achieved.

To achieve this consensus, countries must have a proactive approach and introduce policies to protect the traditional knowledge systems. Only with a concerted effort from all countries, can suis generis protection be achieved.

Final note: Given the live nature of traditional knowledge systems, it becomes difficult to define them. Without these definitions, it becomes difficult to provide protection to traditional knowledge systems, even if most countries agree that such protection is important. While designing such protection systems, it’s essential to strike a balance between the interest and livelihoods of the knowledge-holding communities and the overall good of the public. With the Traditional Knowledge Digital Library, India has gone a step ahead and shown the world that with policy changes, protective mechanisms can be put in place to prevent exploitation of traditional knowledge. It’s time for other countries to follow suit.