International Developments Relating to Protection of Traditional Knowledge

INTRODUCTION

Traditional knowledge can be described as “a body of information accumulated through centuries by a group of people living in close proximity to nature.” Since the establishment of the Convention on Biological Diversity (CBD) in 1992, the preservation of traditional and indigenous knowledge (TK) under intellectual property rights (IPRs) has gotten a lot of attention. Indigenous and local communities have utilized traditional and indigenous knowledge (TK) for generations in accordance with local laws, practices, and traditions.

It has been passed down through the generations and has evolved. TK has played, and continues to play, a critical role in critical sectors such as food security, agricultural development, and medicinal treatment. Western cultures, on the other hand, have generally failed to perceive any substantial value in TK, much alone any responsibility linked to its usage, and have passively agreed to or hastened its extinction by destroying people’ living environments and cultural values.

TK is also the source of a wide range of artistic manifestations, such as musical works and handicrafts. In affluent countries, where the demand for herbal medicines has risen in recent years, TM plays a key role.

WHY IS TK IMPORTANT?

The value of traditional knowledge (TK) to its creators and the global community at large, as well as the need to promote, conserve, and safeguard it, have earned increasing acknowledgment international forums. Thus, a WIPO-UNESCO Model Law on Folklore was adopted in 1981; in 1989, the FAO International Undertaking on Plant Genetic Resources introduced the notion of “Farmers Rights,” and in 1992, the Convention on Biological Diversity (CBD) particularly addressed the subject (Article 8(j)).The World Intellectual Property Organization (WIPO) formed an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore in 2000, and it held its inaugural meeting in April 2001.

TRADITIONAL KNOWLEDGE PROTECTION IN LAW

Opinions on how TK should be protected, as well as whether TK should be protected at all, are greatly divided. It is well acknowledged that intellectual property rights (IPRs) are unsuitable for this type of knowledge in their current form. Is it, however, necessary to place or leave TK in the public domain for anyone to use as they wish? This does not appear to be fair or rational to many indigenous peoples, traditional communities, and developing country governments.

In response, it is demanded that this issue be addressed at the national and regional levels, as well as at the highest levels of the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO), and the Convention on Biological Diversity (CBD), Conference of the Parties (COP).

The trends discussed here suggest at least three potentially overlapping scenarios for TK legal protection in the future:

1. 1. continued and/or increased reliance on the existing legal protection for TK;
  2. development of non-uniform, country- or region-specific means of protecting TK; and
  3. development of internationally harmonized approaches to TK protection.

INDIA’S PROTECTION OF TRADITIONAL KNOWLEDGE

The country’s biodiversity and TK are inextricably linked. It is a non-tangible component of the resource. TK has the potential to be turned into a commercial opportunity, offering useful leads for product and process development.

After the permission granted by the Indian government, USTPO can now access the database of Traditional Knowledge.

On November 23, 2009, the Indian Department of Industrial Policy and Promotion (DIPP) and the United States Patent and Trademark Office (USPTO) announced that they had signed an MOU on comprehensive bilateral cooperation for IPR protection and enforcement. The USPTO and DIPP will collaborate on a variety of IPR issues under the parameters of the MOU, with a concentrate on capacity building, human resource development, and public understanding of the importance of IPR.

There are already a number of additional international legal frameworks and tools that deal with intellectual property protection in the context of traditional knowledge. Among the most well-known are:

1. The United Nations Draft Declaration on the Rights of Indigenous Peoples: According to Article 29 of the UN Draft Declaration, indigenous peoples are entitled to full ownership, control, and preservation of their cultural and intellectual property. States have the right to take distinctive measures to control, evolve, and safeguard their sciences, innovations, and cultural manifestations, such as human and other genetic resources, seeds, medicines, expertise of flora and fauna properties, oral traditions, literary works, designs, and graphic and visual arts.

2. Global Standards: A recent positive initiative is the creation of a set of corporate guidelines for enterprises who seek to create commercial pharmaceuticals using native flora and indigenous knowledge. Delegates from 166 nations negotiated and agreed global principles during a two-week UN-sponsored CBD meeting in The Hague in April 2002, with the goal of encouraging pharmaceutical corporations to form responsible arrangements with countries whose resources they use.

INTERNATIONAL FORUMS PROTECTING TK

UNEP/CBD, WIPO, UNCTAD, and the WTO have all dealt with TK and intellectual property issues. Some of these groups have collaborated with one another. WIPO and UNEP, for example, conducted cooperative case studies on the role of IPRs in sharing benefits from the utilization of traditional knowledge and associated biological resources, while FAO and the CBD Secretariat often collaborate on agricultural topics of mutual concern.

Of course, the roles of these various groups and fora differ greatly.

1. UNEP/CBD: Since 1996, the Conference of the Parties (COP) has discussed matters concerning intellectual property rights (IPRs) at its third and fourth sessions, respectively, in November 1996 and May 1998. Under the CBD, the implementation of article 8 (j) has been thoroughly investigated.

The Fourth COP, in particular, established an ad hoc Open-ended Inter-Sessional Working Group on Article 8(j) in April 1998 to, among other things, develop a work plan for the implementation of Article 8(j) and related provisions and to advise on the development of legal and other appropriate forms of protection for subject matter covered by Article 8(j).

2. WIPO: WIPO and UNESCO collaborated on Model Provisions for National Laws for the Protection of Folklore Expressions against Illicit Exploitation and Other Prejudicial Actions. WIPO established a Global Intellectual Property Issues Division in 1998, which conducted multiple studies on traditional knowledge and, in particular, performed fact-finding missions in various parts of the world to identify the issues at stake and the concerns of traditional knowledge holders.

3. FAO: The issue of TK protection has also come up in the context of the formulation and application of the notion of Farmers’ Rights, which was adopted during the 1994 revision of the International Undertaking on Plant Genetic Resources for Food and Agriculture. Article 9.2(a) of the final document, which was decided to adopt as a new treaty by the FAO (Food and Agriculture Organization) Conference in Rome in November 2001, calls for safeguards to ensure “traditional knowledge,” but it only refers to knowledge “relevant to plant genetic resources for food and agriculture” due to the scope and purpose of the Treaty. As a result, Article 9.2 has a limited scope than Article 8(j) of the CBD, and would not be applicable to knowledge about therapeutic or industrial uses of plant genetic resources, for example.

4. WTO: The TRIPS Council is an important platform for discussing intellectual property rights, biodiversity, and the protection of traditional knowledge, notably in the context of the revision of Article 27.3. (b). The CBD Secretariat, on the other hand, has yet to be granted permanent observer status by the TRIPS Council. The number of observers authorized is extremely limited, and NGOs are not permitted to attend. The WTO Secretariat has addressed the relationship between the TRIPS Agreement and the CBD. This relationship, particularly the protection of TK, has been considered by the WTO Committee on Trade and Environment (CTE).

CONCLUSION

According to the Indian government, “the methods for protecting TK are always changing and evolving.”. The nature of entitlements and benefits distribution is likewise a grey subject. Even at the international level, there is still a lack of transparency, and governments are struggling to comprehend the situation.”

To conclude, developing nations’ stances want some acknowledgment and protection for TK, but there appears to be substantial uncertainty regarding how to approach the matter, the type and breadth of protection, and the extent to which the issue should be brought under the TRIPS Agreement. Others appear to be aiming to preserve the legislative space available at the national level, while at least one country has advocated developing mandatory requirements in the context of the TRIPS Agreement.