TRADITIONAL KNOWLEDGE & THE NEED OF ITS PROTECTION IN THE CONVENTIONAL INTELLECTUAL PROPERTY SYSTEM

Paper Details Paper Code: RP-CLA-V2-07 Category: Research Paper Date of Submission for First Review: March 28, 2022 Date of Acceptance: July 6, 2022 Citation: Rizwana Sultana, “Traditional Knowledge and the Need for Its Protection in the Conventional Intellectual Property System”, 2, AIJACLA, 94, 94-100 (2022). Author Details: Rizwana Sultana, Student, NERIM Law College, NERIM Group of Institutions, Guwahati

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Abstract “Traditional Knowledge” refers to the sum totals of all inventions, developments and innovations that took place over time and were passed down from generations to generations as conventional knowledge. These knowledge of particular communities have established a cultural attachment as a result of being passed down through generations leading to communal ownership of the particular collection of knowledge. It is undoubtedly evident from the recent trends in the area of science and technology that many of these knowledge practices have been the foundation for new inventions. Innovations based on TK benefits the various intellectual properties from patent to trademark, and geographical indication. Indigenous people’s identities, cultural heritage and livelihoods are all based on TK. The indigenous people and local communities being the guardians and original owners of traditional knowledge thereby seek intellectual property protection as intangible assets. However, it is disheartening to note that TK having ancient roots is not protected by conventional intellectual property systems. This article highlights the inadequacy of protection mechanisms for TK as well as the importance and need of protection of TK as Intellectual Property which is the need of the hour in the present-day setting. Keywords: Traditional Knowledge; Indigenous People; IP Protection; WIPO; Defensive Mechanism; Positive Protection

INTRODUCTION Indigenous peoples' wisdom, knowledge, concepts, traditions, customs, and innovations are referred to as traditional knowledge. Traditional knowledge, which is founded on centuries of experience and adaptations to the local culture and environment, is typically passed down orally from generation to generation. It is typically held collectively and conveyed through songs, tales, cultural practices, rituals, and so on. Traditional knowledge enables the environmentally benign, traditional use and management of resources, as well as indigenous agricultural practices that support sustainable development. "Traditional Knowledge," according to the World Intellectual Property Organization (WIPO), is defined as: Traditional knowledge (TK) refers to the knowledge, know-how, skills, and practices that have been developed, maintained, and passed down within a community. These practices are frequently an integral part of the community's cultural or spiritual identity. Scientific, technical, agricultural, and medical knowledge all contain elements of traditional wisdom. Traditional knowledge includes things like "Neem," which has been used by humans for ages and is used for a variety of things like medicine, cosmetics, and pest repellents. Other examples include understanding of conventional medical practices, conventional hunting and fishing methods, understanding of animal migration patterns, understanding of water management, etc.[1] Historically, traditional knowledge has been passed down the generations through customs that serve distinct purposes for various types of traditional knowledge. The modes of intergenerational transfers differ according to the social and cultural customs that are particular to the communities that practice them. Traditional medical practices like kampo, unani, Ayurveda, siddha, homoeopathy, acupuncture, and yoga, to name a few, are available and can be used to treat a variety of illnesses—although not all—and are especially successful in treating stress- and lifestyle-related illnesses, which are among the non-communicable diseases with the fastest rate of growth.[2] The paper addresses some of the issues surrounding conventional knowledge that have been brought up by the legal academic community: Whether traditional knowledge has to be protected within the traditional intellectual property system. Whether there are any safeguards, stances, or laws for the preservation of traditional knowledge at the national or international level?

IMPORTANCE OF TRADITIONAL KNOWLEDGE AND THE NEED FOR ITS PROTECTION Traditional knowledge is becoming more extensively acknowledged in recent years for its importance. Indigenous peoples have a rich understanding of nature and ecosystems that has developed over many years. This understanding is the foundation of traditional knowledge. A well-known quotation can be used to highlight the significance of traditional knowledge: Amadou Hampate Ba once said” When an elder dies, a library burns."[3] Traditional knowledge is essential to industry, agriculture, and the people who use it in their daily lives. It has the potential to be extremely important in promoting sustainable development, solving global problems including climate change, resource management and conservation, and advancing scientific and technical research.[4] Traditional knowledge also has the potential to speed up environmental management plans that will maintain, enhance, and promote biodiversity and eventually help manage healthy ecosystems.[5] Indigenous traditional knowledge in the educational field is a crucial strategy for conserving and sustaining indigenous cultures and identities as well as for spreading knowledge about various environmental challenges and protecting the environment.[6] Conventional intellectual property (IP) systems typically view traditional knowledge (TK) as existing in the public domain and being available for use by anybody. Indigenous peoples, local communities, and many States contend that this leaves Traditional Knowledge open to unwelcome appropriation and misuse. For instance, a pharmaceutical company could appropriate a traditional remedy and patent the resulting invention, or an indigenous folk song could be adapted and copyrighted without acknowledging the indigenous community that created the song or sharing any of the benefits resulting from the adaptation.[7] The goal of protection, in short, is to ensure that the intellectual innovation and creativity embodied in Traditional Knowledge are not inappropriately used by recognizing their exclusive rights, i.e., prohibiting others from making certain uses of Traditional Knowledge. Protection of Traditional Knowledge in the Intellectual Property System may mean the protection of Traditional Knowledge against their misuse or misappropriation, such as their copying, adaptation, or use by unauthorized third parties.[8] Indigenous communities have been exploited, contributing to socioeconomic inequity and eroding the traditional knowledge they possess, as a result of factors including racism, colonialism, and dispossession. Additional factors contributing to the increased concern for traditional knowledge protection include bio-piracy, which is the unlicensed and commercial abuse of traditional information, as well as patenting of traditional knowledge.[9] In order to prevent patentability without their consent and to exploit the knowledge and resources fairly in accordance with the constraints imposed by their traditions, the indigenous people have therefore sought greater protection and control over them. Many contend that there should be well-established, culturally acceptable, and predictable regulations because of the transnational scope of traditional knowledge misappropriation and misuse at the international level.[10]

MECHANISMS FOR PROTECTION OF TRADITIONAL KNOWLEDGE Since there is no suitable system for protecting traditional knowledge, there have been several discussions on its protection as intellectual property. Positive Protection and Defensive Mechanism are two strategies that have recently surfaced for the protection of traditional knowledge.[11] Positive Protection establishes laws, norms, and regulations to protect traditional knowledge.[12] In essence, defensive mechanism calls for adopting actions to stop the acquisition of intellectual property rights over traditional knowledge, such as patenting traditional knowledge.[13] Following the well-known case of the United States Patent & Trademark Office, wherein a patent was granted on the healing properties of turmeric and with much difficulty Council of Scientific & Industrial Research (CSIR) proved the prior existing knowledge of such properties of turmeric with the help of numerous antecedents, a searchable database of traditional medicine has been developed by India that can be used by patent examiners as proof of prior art when reviewing patent applications.[14] At International Patent Offices, TKDL serves as a guide for patent examiners (IPOs).[15] Additionally, documentation, which is a private archive of traditional knowledge held only by one particular indigenous tribe, might aid in safeguarding traditional knowledge. Databases of traditional knowledge, like the one on traditional medicine in India, are also essential for defensive protection within the IP system. There is a strong preference for the Defensive Mechanism for protecting traditional knowledge because Positive Protection in the form of laws and statutes has not yet been implemented in both international and national contexts.

PROTECTION OF TRADITIONAL KNOWLEDGE AT THE INTERNATIONAL LEVEL Numerous international instruments recognize the value of traditional knowledge and guarantee indigenous peoples' right to promote, defend, and preserve it. The protection of indigenous peoples' rights to their traditional knowledge is emphasized in Article 31 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).[16] In accordance with Article 8(j) of the Convention on Biological Diversity (CBD), indigenous peoples and local communities have a special relationship with biological resources and can contribute their traditional knowledge to the conservation of biological diversity. [Article 8(j)][17]. In accordance with Article 8(j) of the Convention on Biological Diversity (CBD), indigenous peoples and local communities have a special relationship with biological resources and can contribute their traditional knowledge to the conservation of biological diversity. The CBD has established a working committee to protect traditional knowledge for this reason. In accordance with the UN Declaration, other UN agencies have policies and programmes that stress the value of traditional knowledge in defending the rights of indigenous peoples.[18] Numerous governments are working to put Article 8(j) of the Convention into practice through their national action plans, strategies, and programmes, as well as through particular laws and policies aimed at safeguarding traditional knowledge.[19] Additionally, in the Primary Healthcare Declaration of Alma Ata, the World Health Organization acknowledged the value of traditional medical knowledge as a source of primary healthcare.[20] Additionally, the International Treaty on Plant Genetic Resources for Food and Agriculture guarantees the conservation of traditional agricultural knowledge and the respect of farmers' rights relevant to plant genetic resources for food and agriculture.[21] The International Year of Indigenous Languages was declared by the UN General Assembly in 2019 in order to save indigenous traditional knowledge.[22] The Generation, Transmission, and Protection of Traditional Knowledge were the focus of the 2019 session of the United Nations Permanent Forum on Indigenous Issues. This theme aimed to support the recognition and respect for indigenous peoples' traditional knowledge based on their right to self-determination and the determination of their own development priorities.[23]

PROTECTION OF TRADITIONAL KNOWLEDGE IN INDIA Traditional knowledge is an essential component of the culture and heritage of many indigenous tribes in India, a country widely known for its biodiversity. Contrary to other forms of intellectual property like patents, trademarks, copyrights, and geographic indications, which are all covered by substantive laws, India has no legal framework to safeguard traditional knowledge. However, other IP laws, like the Patents Act of 1970, have specific provisions relating to traditional knowledge. Traditional knowledge is expressly disregarded as an invention or an original concept under Section 3(p) [24] of the Patents Act. A patent application may be revoked on the basis of conventional knowledge under Section 25(1)(k) [25] and Section 64(2)(b) [26] of the Patent Acts. For instance, the procedure of cutting, roasting, and combining dry fruits before adding them to the Chyawanprash is disclosed in the patent application for a method of making an improved Chyawanprash, which, according to Section 3(p) of the Patents Act of 1970 (as modified in 2005) [27], is not an innovation. Due to the fact that it is based on customary knowledge, this innovation is not patentable under the Act. But the creation of a legal framework for the defence of traditional knowledge is urgently required. India has been attempting to take a more proactive approach in the meantime to increase community and individual understanding of the value and significance of traditional knowledge as well as how to conserve it.

CONCLUSION Traditional Knowledge often referred to as the living body of knowledge, is a vital component of a community's identity, culture, and tradition and must be preserved in order to foster economic growth and progress. The present intellectual property system, which normally provides protection for a certain amount of time to inventions and authors' original works, does not apply to it. As a result, people and governments around the world have urged for a global agreement that would guarantee its protection. Within the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore, discussions are on the way to draft an international legal instrument. In the meantime, measures must be put in place to guarantee indigenous peoples and local communities can participate in decision making. In order to promote, respect, and protect the traditional knowledge of indigenous communities, governments and non-governmental organisations (NGOs) can play a proactive role through campaigns and the dissemination of awareness of traditional knowledge.

[1] WIPO, ‘Traditional Knowledge’, < https://www.wipo.int > accessed 2nd February, 2022 [2] Indian Council For Research on International Economic Relations, ‘Who owns Traditional Knowledge?’, <https://wwwicrier.org> accessed 2nd February, 2022 [3] Khurana & Khurana, ‘India: Traditional Knowledge and Patents’, <https://www.mondaq.com/india/patent/810280/traditional-knowledge-and-patents> accessed 2nd February, 2022 [4]The United Nations Permanent Forum on Indigenous Issues, ‘Traditional Knowledge and the UN’, <https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2019/04/Traditional-Knowledge-backgrounder-FINAL.pdf> accessed 2nd February, 2022 [5] Ibid. [6] United Nations Economic and Social Council, ‘Indigenous People’s Traditional Knowledge Must Be Preserved, Valued Globally, Speakers Stress as Permanent Forum Opens Annual Session’, <https://www.un.org/press/en/2019/hr5431.doc.htm> accessed 2nd February, 2022 [7] WIPO, ‘Traditional Knowledge’, <https://www.wipo.int> accessed 2nd February, 2022 [8] WIPO, ‘Traditional Knowledge’, <https://www.wipo.int> accessed 2nd February, 2022 [9] Bency Baby T and Timmakkondu Narasimman Kuppusami Suriyaprakash, 'Intellectual Property Rights: Bioprospecting, Biopiracy and Protection of Traditional Knowledge - An Indian Perspective, <DOI: 10.5772/intechopen.99596> accessed 2nd February, 2022 [10] WIPO, ‘Traditional Knowledge’, <https://www.wipo.int > accessed 2nd February, 2022 [11] Rohaini, Rohaini & Ariani, Nenny, 'Positive Protection: Protecting Genetic Resources Related to Traditional Knowledge in Indonesia. FIAT JUSTISIA', 11, <DOI: 10.25041/fiatjustisia.v11no2.985> accessed 2nd February, 2022 [12] Curci J, “Positive Protection of Traditional Knowledge,” The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property (Cambridge University Press 2009) [13] Curci J, “The Defensive Protection of Traditional Knowledge in International Patent Law,” The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property (Cambridge University Press 2009) [14] Khurana & Khurana, ‘India: IPR Vis-à-Vis Traditional Knowledge’, <https://www.khuranaandkhurana.com/2018/10/05/ipr-vis-a-vis-traditional-knowledge/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration> accessed 2nd February, 2022 [15] Office of Controller General of Patents, Designs and Trademarks, ‘GUIDELINES FOR PROCESSING OF PATENT APPLICATIONS RELATING TO TRADITIONAL KNOWLEDGE AND BIOLOGICAL MATERIAL’, <http://www.ipindia.gov.in/writereaddata/Portal/IPOGuidelinesManuals/1_39_1_5-tk-guidelines.pdf>, accessed 2nd February, 2022 [16] The Declaration on the Rights of Indigenous Peoples 2007, Art 31 [17] The Convention on Biological Diversity 1993, Art 8(j) [18] The United Nations Permanent Forum on Indigenous Issues, ‘Traditional Knowledge -The United Nations’, <https://www.un.org/indigenous> accessed 2nd February, 2022 [19] Supra 14. [20] WHO, 'WHO called to return to the Declaration of Alma-Ata',International Conference on Primary Health Care, <https://www.who.int/teams/social-determinants-of-health/declaration-of-alma-ata> accessed 2nd February, 2022 [21] Article 9 - Farmers’ Rights, The International Treaty on Plant Genetic Resources for Food and Agriculture, 2004 [22] United Nations Department of Economic and Social Affairs Social Inclusion, '2019 International Year of Indigenous Languages', <https://www.un.org/development/desa/dspd/2019/01/2019-international-year-of-indigenous-languages/> accessed 2nd February, 2022 [23] United Nations Department of Economic and Social Affairs, 'Special Theme: “Indigenous Peoples’ Traditional Knowledge, Generation, Transmission And Protection”', <https://www.un.org/en/desa/special-theme-%E2%80%9Cindigenous-peoples%E2%80%99-traditional-knowledge-generation-transmission> accessed 2nd February, 2022 [24] The Patents Act 1970, s 3(p) [25] The Patents Act 1970, s 25(1)(k) [26] The Patents Act 1970, s 64(2)(b) [27] The Patents Act 1970, s 3(p)