Introduction
In this day of rapid technological progress and globalization, the protection of intellectual property rights and the preservation of traditional knowledge are more crucial than ever. A valuable resource that is susceptible to exploitation or loss is traditional understanding. It usually originates from native cultures and is passed down through the generations. The relationship between traditional knowledge the reasons it’s critical to strike a compromise that upholds the rights of those who possess traditional knowledge while promoting innovation and development.
Traditional knowledge
It encompasses the knowledge, traditions, and innovations that cultures have developed over time and managed to retain collectively. It is not limited to any one subject and can span a broad range of subjects, such as music, art, agriculture, and medicine. Traditional knowledge is closely integrated with a community’s cultural and spiritual identity through oral or experienced transmission. Knowledge, know-how, skills, and practices that are created, maintained, and transmitted from generation to generation within a society and frequently constitute a component of its cultural or spiritual identity are referred to as traditional knowledge (TK). It is critical to realize that traditional knowledge is not solely based on antiquity. It is a naturally occurring, dynamic body of information that has been thoughtfully created and maintained by a community. The customary wisdom becomes ingrained in this community to the point where it contributes to its identity. Traditional wisdom was irrelevant until recently. People have become aware of its importance and unique value in the modern world in recent years. You must acknowledge that conventional knowledge includes a practical component in order to comprehend its significance. It was created as a thought-provoking reaction to life’s requirements. As such, society stands to gain much from it both directly and indirectly. For instance, the Kani tribes in South India are known for their medical expertise, which contributed to the creation of the sports drug Jeevani. It is a medication that reduces stress and weariness. Its foundation is the herbal remedy Arogyapacha. Thus, both current and future generations can profit greatly from old knowledge.
Challenges
Even with its priceless contributions to humanity, conventional knowledge has certain drawbacks.
Biopiracy: There’s a possibility that conventional wisdom will be used improperly, particularly in fields like traditional medicine and agriculture. Biopiracy is the practice of obtaining patents for traditional medicinal procedures or agricultural techniques, thereby profiting from the communities that invented them.
Erosion: If younger generations move to cities or take up more modern lifestyles, traditional wisdom may vanish. Cultural diversity and the potential benefits of this knowledge are also in danger due to this decline.
Lack of Protection: Unlike modern intellectual property, traditional knowledge is easily appropriated and often needs stronger official protection.
Indigenous cultural expression and traditional knowledge are not easily protected by the intellectual property framework. Conversely, there are instances in which the intellectual property framework functions to permit the commercial exploitation of Indigenous cultural expression and traditional knowledge for enormous profit, with no financial gain for the Indigenous communities that initially made it available.
As an illustration:
Indigenous people may be aware of the therapeutic benefits of a specific plant. With that information at their disposal, scientists study the plant. They develop a medicine by identifying the chemicals that have the desired therapeutic effect. The pharmaceutical business reaps substantial earnings from the production and marketing of the medicine, hence providing financial benefits to its stockholders. But there aren’t any financial advantages for the Native American community that enabled this. It is possible to alter an Indigenous folk song’s melody such that copyright applies to the new work. The recording’s performance as well as royalties are paid to the copyright holder. Nevertheless, the Indigenous community who “owned” the music prior to its modification does not get any royalties or money.
Different ways that traditional knowledge is protected
Two types of protection are being sought for traditional knowledge internationally: Protective measures and Defensive strategies
Protective Defensive : The goal of defensive protection is to prevent outsiders from obtaining intellectual property rights related to traditional knowledge. The finest illustration of this is India’s TKDL. TKDL will assist in making sure that incidents such as the grating of a patent on turmeric don’t occur again.
Advantageous Defense : Communities are empowered by positive protection because it gives them the freedom to disseminate traditional knowledge, choose how to use it, and profit from its commercial use.
Indigenous people: Indigenous people are defined as follows by the Indigenous and Tribal Peoples Convention of 1989: Tribal people who, either entirely or partially, are ruled by their own customs and traditions and who stand out from other national groups due to their unique economic, social, and cultural circumstances. These individuals, who are recognized as indigenous due to their ancestry. “Traditional knowledge” is the knowledge that is created, preserved, and fostered by indigenous communities. Because of its dynamic nature, the TK varies according to social, climatic, and geographic conditions. Among TK’s characteristics are: TK is passed on via the generations. Typically, the information is communicated verbally, but it is occasionally transmitted in writing. The community as a whole holds TK.
Traditional knowledge and Patents
Section 3(p) of the Indian Patent Act, 1970 prohibits the protection of traditional knowledge under Indian patent laws. A combination or replication of known properties of traditionally known components, or an innovation that is effectively traditional knowledge, is not an invention and is not subject to patent protection. For instance, the method of preparing an improved Chyawanprash described in the patent application comprises chopping, roasting, and combining dry fruits with the Chyawanprash; nevertheless, this procedure does not qualify as an invention under Section 3(p) of the Patents Act 1970 (as amended in 2005). Since this invention relies on conventional knowledge, it cannot be patented under the Act. Nevertheless, in the event that the present TK significantly change IP protection can subsequently be pursued if the innovation satisfies the conditions of Indian IP legislation. Indian law offers suitable safeguards to preserve traditional knowledge. Conventional knowledge is public knowledge by definition, so any application for a patent pertaining to TK does not meet the definition of an invention under Section 2(1)(j) of the Patents Act, 1970, which states that an invention is “a new product or method requiring an innovative phase and capable of industrial use.” Furthermore, “a substance obtained through a mere admixture which results only in the aggregation of the properties of the components thereof or process for producing such substances” is not an innovation and is therefore not patentable, according to Section 3€ of the Patents Act.
Patent
Patents granted may be revoked in opposition under clauses (d), (f), and (k) of section 25(2) of the Patents Act, 1970. Patent applications based on TK that violate the law may be denied under Section 15 or in pre-grant opposition under clauses (d), (f), and (k) of section 25(1). The Innovation in dispute has its origins in the Patent Act of 1970, which contains provisions requiring TK to be disclosed. The Act’s Section 10(4)(ii)(D) mandates that the source and place of origin of any biological material employed in the invention must be disclosed in the specification. The patent strategy may provide security for certain aspects of TK. Technical problems identified in the previous paintings with creative and inventive solutions globally can be protected by filing for a patent. For example, patents may protect the trademark because it deals with modern subjects. Procedures used in the production of goods separated from biological resources like microbes, plants, and animals can be protected by patents. The codified TM does not meet the novelty requirements to be covered under patents. However, we will use codified knowledge regarding TM as prior art to prevent anyone from obtaining a patent.
Conclusion
Conventional wisdom possesses a remarkable capacity to address the new issues facing humanity. Although using this information is very important, it must be balanced with security, advertising, and benefit sharing. One could refer to traditional knowledge as the newest IP member. However, in addition to the (un)will of nations, judgments about how to handle this child must take into account a number of issues. Put more accurately, traditional knowledge, or the informal sector information network, is primarily oral, poorly documented, and thus not defendable. Although India has made progress and established a repository of its ancient knowledge, the necessity for a legal instrument is become more pressing on a global scale. Interest-worthy is the blending of traditional information architectures with an up-to-date IPR framework. A generis law Is frequently suggested as a potential remedy to better conserve traditional knowledge; but, until legislation is passed, initiatives like Startup India, Digital India, and the National IP Policy will preserve the rapidly disintegrating traditional knowledge framework. It wouldn’t be erroneous to state that in order to secure the survival of both humanity and the species, the current generation will need to assist in protecting the priceless knowledge of a dying generation.
References
1. https://blog.ipleaders.in/ipr-vis-vis-traditionalknowledge/#:~:text=This%20followed%20a%20well%2Dknown,recorded%20in%20ancient%20Sanskrit%20texts.
2.https://www.scconline.com/blog/post/2020/06/22/intellectual-property-rights-and-protection-of-traditional-knowledge-a-general-indian-perspective/
3.https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1981642
4. https://www.wipo.int/tk/en/tk/
5. https://www.un.org/en/academic-impact/we-are-indigenous-addressing-global-challenges-indigenous-knowledge
6.https://www.business.qld.gov.au/running-business/risk/ip/ip-kit/browse-ip-topics/traditional-knowledge/issues
7.https://www.intepat.com/blog/traditional-knowledge-and-intellectual-property-rights/
8. https://www.iiprd.com/preserving-heritage-traditional-knowledge-and-intellectual-property-rights/#:~:text=The%20protection%20of%20intellectual%20property,vulnerable%20to%20exploitation%20or%20loss.
9. https://iptse.com/what-is-traditional-knowledge-and-how-to-protect-it/
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Judgement Analysis Written by – K.Immey Grace
