Intellectual Property Protection of Traditional Knowledge

 

THIS ARTICLE WAS WRITTEN BY PRIYANKA PAREEK A STUDENT OF COLLEGE OF LAW AND GOVERNANCE, MODY UNIVERSITY.

INTRODUCTION

Humans since time immemorial have been passing on knowledge. This knowledge is ancient in nature and has been followed since ages. It is a gift of ancestors and therefore, it can’t be separated from them no matter what. It is their innovation, invention, practice etc. which have been developed over the years according to the changing needs of the society. This Traditional Knowledge is a valuable heritage for the communities and cultures that develop and maintain it, as well as for the other societies and the world as a whole.[1] It’s also multi-dimensional extending to areas including medicines, biodiversity, healthcare, art, dance etc. Traditional Knowledge is thus the totality of all the knowledge and practices, whether explicit or implicit, used in the management of socio-economic and economic facets of life. This knowledge is established on past experiences and observations.[2]

Intellectual property is the property we possess in the form of knowledge, ideas, innovations, creativity, research etc. it is nothing else but the human intellect. The rights related to it are known as the intellectual property rights. It is the product of human mind and is similar to any property, whether movable or immovable, wherein the owner may exclusively use his property at will and has the right to prevent others from using it, without his permission.[3] Intellectual property rights are the fastest emerging concepts globally. They are the fastest growing because of the pace at which the technical and scientific developments are taking place in almost every field intellectual property rights are customarily divided into two main areas:[4]

1. Copyright and rights related to copyright: this includes the literary and the artistic works like paintings, books, computer programs etc.
2. Industrial property: this IPR can also be divided into two broad categories one related to scientific inventions and other relating to distinctive signs.

Traditional Knowledge plays a vital role in the global economy. But it is seen that the modern economic policies and laws (especially modern property laws) undervalue this knowledge: at best they ignore it and worst they contribute to its destruction.[5] Therefore, it is the need of the hour to protect this Traditional Knowledge which has contributed so positively to each and every aspect of our lives. The Convention on Biological Diversity which came into force on 1994 was the first ever international treaty to recognize the important role of Traditional Knowledge. The convention lays down the basic requirements that the parties to the Convention preserve and maintain such Traditional Knowledge; promote its wider application with the approval and involvement of its holders; and encourage the equitable sharing of the benefits from its use.[6]

There is an other Agreement on Trade Related Aspects of Intellectual property Rights which is an international agreement administered by World Trade organisation that sets down the minimum standards for many forms of Intellectual Property as applied to nationals other than WTO.[7] This agreement introduced the Intellectual Property Rights to the International Trading System and remains the most comprehensive International Agreement till date. It came into force on January 1, 1996.

But even after such major steps the protection of Traditional Knowledge is not up to the mark. It is being exploited by each and every day by every possible user. Big multinationals are using it for free and making profits in billions and trillions. The worst part is the people who are its real inventors are not even able to share the wealth and profits it is leading to. They are not even being credited for the same. Intellectual property rights are one of the most important tools which can be useful in preserving and protecting knowledge. They also play a major role in bridging the gap between indigenous and local communities, its inventors and the other societies, its users. Many of intellectual property rights may appear to be more or less neutral, but some aspects do contribute to the problem of knowledge loss. It can be seen that the rights over intellectual property provide limited incentives for the management and development of knowledge within the communities, some form of intellectual property rights can be very useful for the communities as they would give them what they deserve i.e. they credit for its idea, innovation etc. and the benefits along with the profits which it is providing. And in the end the utility of IPR can also be enhanced by the help of some modifications and implementation of better policies in the category of Traditional Knowledge.

CONFLICT OVER TRADITIONAL KOWLEDGE AND INTELLECTUAL PROPERTY RIGHTS

Now there is a continuing controversy over the particular point of impacts of Intellectual Property over the Traditional Knowledge of different Indigenous Communities. There is a concern that these Intellectual Property Rights are inadequate for the Traditional Knowledge and their intellectual and cultural property.[8] There comes an argument that this is going to cause the erosion of the Traditional Knowledge. Because there has always been a belief that there should be a free sharing of the knowledge so that in place of an individual, the community should be benefited. But these Intellectual Property Rights provide too much consideration to a specific individual who is having the knowledge. There is a concern that Intellectual Property Rights only encourage the commercial use of any Traditional Knowledge. On the other hand advocates of Traditional Intellectual Property Rights system argue that these systems create profits and benefits for the inventors of any such knowledge. And this will further encourage others to conserve Traditional Knowledge.

Intellectual Property Rights provide incentives to all those individuals, group of individuals or communities who are the specific inventors of that Intellectual Property. But the case of Traditional Knowledge is quite different. In Traditional Knowledge, there is no as such specific founder or inventor of this Indigenous Knowledge. Traditional Knowledge is transferred from one generation to the other and there is no identifiable individual inventor. Thus it has been widely stated that Intellectual Property Rights are not suitable for Traditional Knowledge because they protect knowledge that has been created by individuals not recognize collective rights.[9]

But the reality in this case is more complicated than these generalisations. First, while it is true that many Indigenous cultures appear to develop and transmit knowledge from generation to generation within a communal system, individuals in local and Indigenous communities can distinguish themselves as informal creators or inventors separate from the community.[10] And the equal important issue is just opposite to the same condition. Some of the traditional societies are reported to recognize the different types of Intellectual Property Rights over property which may be held by individuals, lineages and families or communities.[11] In some of the cases there are knowledge divisions in different people of the community. Thus sharing the benefits in the community has no guarantee whether the person who is working for the conservation is getting the rewards or not.

IPRs are one of the mechanisms used to maintain the existing systems of knowledge and technology creation characteristic of capitalist industrialized societies. Most IPRs are market-oriented mechanisms, which only aim to assure gains and a share of the economic benefits to the developers of that particular knowledge.

Patents, for example, are useful only where there is a market for a product subject to the patent or other right, or for the product that is produced by the process subject to the patent. Geographic indicators are useful where consumers are willing to pay a premium on the market for products manufactured in the relevant region according to that region’s traditional methods.

Advocates on both positive as well as negative sides of this system have advanced their claims in moralistic terms. It is argued that, there is a core of moral value to existing IPR systems. This reflects a widely held notion that a person has a moral right to control the product of her labour and creativity.[12] Yet while Intellectual Property principles may have a moral core, there is no clear moral basis for the specific forms that IPRs have taken under existing regimes, or could take under various proposals. Modern thinking on IPR systems is that they are socially agreed-upon incentives designed to encourage innovation as well as public disclosure of information about those innovations-at least in the case of patents, in which the application is published once the patent is issued.[13] The precise outlines of an IPR are defined by striking a balance among various social goals. On one side, a private property right is conferred to reward a specific inventor’s or creator’s investment in research and development, and to encourage public disclosure of the invention or creative work. On the other side, the right is limited in duration and subject to exceptions, in order to maintain the public domain needed for a free flow of ideas and information for use by all inventors and creators. As one commentator noted, “Intellectual Property Rights are limited monopolies conferred in order to gain present and future public benefit; for the purpose of achieving those goals, the ‘limitations’ on the right are just as important as the grant of the right itself.[14]

BIO-PIRACY                                                                                                            

Bio-piracy refers to unauthorised use of Biological Resources such as plants, animals, micro-organisms etc. and Traditional communities’ knowledge on biological resources.[15] Bio-piracy also defines unequal share of benefits between a patent holder and Indigenous community whose knowledge or resources has been used. This clearly shows that the person who commits bio-piracy enjoys the maximum benefit at the cost of the Indigenous people’s knowledge. It also indicates misappropriation and monopolisation of Traditional Population’s Knowledge and Biological Resources unlawfully. Normally, biotechnology companies commit bio-piracy when there work is based upon natural varieties, which are found in developing countries among Indigenous people. Whenever they commit such acts they have to pay royalty for them. In most of the times multinational companies use the country’s biological and intellectual wealth without getting permission from the communities who have developed this knowledge, this amount to bio-piracy. There are various traditional products which are subjected to bio-piracy by multinational companies, such as; Neem and Basmati.

The TRIPS agreement allows member states to exclude from patentability inventions which are contrary to public order and morality or detrimental to health and environment. Therefore, it can be said that TRIPS agreement is in conflict with the Convention on Biological Diversity (CBD), which recognises the sovereign rights of states over their biological resources and prior informed consent over access to genetic resources. India has also ratified the Convention on Bio Diversity which tries to provide security for sovereign rights recognised under this convention. In fact the culture and tradition of Indigenous people are very much threatened by IPR Regime as imposed by the TRIPS agreement. The Patent Act of India was amended latest in 2005.[16] The main features of this amendment are:

• Introduction of product patent protection in all fields of technology;
• Deletion of provisions relating to exclusive marketing rights;
• Introduction of a provision enabling grant of compulsory license of export of machines to countries which have insufficient or no manufacturing capacity to meet emergent public health situation.

Prior to amendments to Patent Act provided only process patent for food, medicine or drug substances. But after the amendment, Indian companies are given a right to manufacture products patented elsewhere by employing a non-infringing process under exceptional cases.[17] The TRIPS agreement also has some provisions for protection of Traditional Knowledge. The obligation to protect geographical indications can be used to protect Traditional Knowledge associated with the goods. Doha Declaration of 2001, in WTO ministerial conference, says that, TRIPS council should examine the relations between the TRIPS agreement and the UN Convention on Biodiversity, the protection of Traditional and Indigenous knowledge and folklore etc.[18] Besides, International Labour Organisation’s Convention 169 also recognises and protects the social, cultural, religious and spiritual values and practices of Traditional and Indigenous People.[19] Above all the sui generis legislation needs to be developed for the purpose of protecting Traditional Knowledge. India has already enacted the law to provide for protection of biological diversity,[20] sustainable use of its components and equitable benefit sharing arising out of the use of biological resources. The legislation also provides for a National Authority, which will grant approvals for access and ensures equitable sharing of benefits. Following are the features of Biological Diversity Act of India, 2002.

The Act:

• Prohibits transfer of Indian genetic material outside the country without approval of the India government;
• Patents or other Intellectual Property Rights over such material or over related knowledge can only be taken seeking permission in advance;
• Provides for the levying of approximate fees and royalty on such transfers and Intellectual Property Rights;
• Provides for sharing of benefits of various kinds including transfer of technology, monetary returns, joint Intellectual Property Rights ownership etc.;
• Provides measures for habitats and species protection;
• Provides for the protection of Indigenous knowledge through appropriate legislation at local, state and national levels.

Further the TRIPS[21] agreement mandates protection for plant varieties either by patenting the plants of through effective sui generis system. In our country formers are not habituated for patenting plant varieties, as there is ignorance about the long patenting process. The process of developing a new Plant Variety Protection Act in India started in 1993. Dr. M.S. Swaminathan, a known agriculture scientist drafted the bill and said that the drafted Plant Variety Protection Act should recognise the rights of farmers and breeders. He said, farmers and breeders are allies in the struggle for sustainable food security and hence there rights should be protected. The result is the Protection of Plant Varieties and Farmers’ Rights Act, 2001.[22] The main objectives of this Act are:

• To recognise and protect the rights of farmers for their contribution made in conserving, improving and making plant’s genetic resource available for development of varieties.
• To protect plant breeders’ rights, to inspire for investment in research and development both in private and public sector for the development of new plant varieties.
• To facilitate growth of the seed industry in the country to ensure the availability of high quality seeds and planting material to farmers.

The Act also guarantees rights for the farmers to use, save and re-sow exchange or share or sell their farm products including seeds. The farmers can also seek protection under the Act if they develop new strains through selection and breeding, if they satisfy the conditions such as novelty, distinctiveness, uniformity and stability.

CASE STUDIES ON TRADITIONAL KNOWLEDGE AND IPRS CLAIMED

To have a discussion about the impacts of IPR on the sharing of benefits from the commercial use to traditional and Indigenous knowledge can be even more beneficial if it is analysed with the help of different cases. These studies help to analyse the actual role of IPRs. Some of the case studies are as follows:

1. THE TURMERIC PATENT:

Turmeric is a spice long which is used in India as a flavouring or Colorant in food. It is an important ingredient in medicines and cosmetics as well. It is derived from the root of Curcuma longa, a plant in the same family to which ginger belongs. It has been used as a traditional medicine since ages in different regions, including India.[23]

In 1995, the U.S. Patent and Trademark office (PTO) granted patent no. 5,401,504 for the use of powdered turmeric for speed up healing of wounds. The patent was assigned to University of Mississippi Medical Centre. The Council of Scientific and Industrial Research (CIR) of India challenged to this patent in October 1996. The CIR argued that the patent is failed to the legal requirement of novelty because the use of turmeric to heel wounds is a part of the prior art. CIR also presented a number of publications from India which indicates that turmeric was a well known traditional remedy in India. In August 1997, the U.S. Patent and Trademark Office rejected the Patent, finding that it constituted prior art as represented by different Indian Scientific Publications. This case thus demonstrates the importance of documentation of Traditional Knowledge. The concept of being a ‘Prior Art’ and the practice of reviewing it, should be there to reduce the chance of success over these kind of non-novel patents.[24]

2. BASMATI RICE PATENT:

In 1997, the U.S Patent Office granted a patent in September 1997 to ‘Rice Tec’ for a strain of Basmati Rice, aromatic rice which is grown in India and Pakistan for centuries. This case has not yet been resolved, but the Indian Government is pursuing the case actively, stating that it violates the TRIPS agreement and CBD. According to South Asia Commission on Economic and Social Policy, Rice Tec’s patent also violated the CBD in not recognising the sovereign rights of India and Pakistan over Basmati Rice.[25] According to Vandana Shiva, the theft involved in this case is threefold:

1. A theft of collective intellectual and biodiversity heritage on Indian farmers;
2. A theft from Indian traders and exporters whose markets are being stolen by Rice Tec Inc.;
3. And finally a deception of consumers since Rice Tec is using a stolen name Basmati for a rice which are derived from Indian rice but not grown in India and hence are not of same quality.[26]

This case demonstrates the problem as illustrated in TRIPS that patents are granted to biotechnological processes. Thus, even if Basmati rice has been in South Asia for centuries, Rice Tec just altered it slightly through crossing with Western strain of grain, and claimed the patent.

3. NEEM TREE PATENT:

Since ages, rural people in India have been using parts of Neem tree for a number of uses which ranges from toothpaste to pesticides. A number of corporations both Indian and foreign have taken patents on inventions employing materials derived from the Neem tree in uses that often relate to traditional uses of Neem.[27] For instance, a U.S. company, W.R. Grace, had patented a number of inventions relating to Neem tree. One patent taken out by Grace in the U.S. in 1990 covered a technique for improving storage stability of Neem seed extracts containing azadirachtin.[28] Another patent obtained by Grace in 1994 covered a storage stable insecticidal composition including a Neem seed that has increased stability.[29] The heightened stability of this preparation over traditional Neem preparations presumably makes it more convenient for commercial distribution as well as farm use. Many of these patented inventions are different from traditional use of Neem. They apply only to specified inventions, without interfering with Indian farmers’ traditional practices. Contrary to some public declarations, there is no patent on the Neem tree.[30] The “seed itself-being a product of nature-is not patentable unless considerably modified.”[31]

It is possible that some of the patents were not novel because they not only drew upon knowledge of traditional practices but those practices were a part of those patents. The range of Neem related patents should be examined and compared. As the turmeric example indicates, some of them may constitute prior art in the form of Traditional Knowledge, which should not have been patented. Indeed, the European Patent Office has reportedly disallowed one patent held by W.R. Grace on this ground.[32]

CONCLUSION AND SUGGESSTIONS

The conclusion in that can be drawn here is that the present legal regime in the field of education is somehow inadequate or incomplete. This fact is quite obvious that the tribal people who possess the Traditional Knowledge are not at a position to enjoy the benefits which they can derive with the help of the Traditional Knowledge. As many of their Traditional Knowledge like, medicinal plants, folkdance, handicrafts, their music, ceremonies and culture are not documented, there is a scope of pirating these by others including multinational companies. These companies are making money by the full utilising their knowledge by not sharing profit to them. Therefore, there should be immediate measures taken by government for documentation of all types of Traditional Knowledge possessed by the Indigenous communities. And if in any case this is not done, then big companies, at the cost of the local, tribal and Indigenous people would conquer their Intellectual Property.

And for that matter, there are several areas where useful work should be done to enhance the sharing of benefits related to IPR with Indigenous and local communities. There must be constitutional and legal protection to safeguard the Traditional Knowledge possessed by the tribal population. There must be adequate sharing of profit for utilising the Traditional Knowledge for commercial purposes. A number of trusts are to be constituted for promotion and preservation of Traditional Knowledge and studies should be carried out for the matter of uses of Traditional Knowledge and sharing of its benefits. Documentation of different kinds of Traditional Knowledge should be undertaken. Prior informed consent must be obtained from the knowledge holders before the use of that knowledge. There must be an involvement of Indigenous and local communities in applying and utilising their knowledge to the development of new products. In the area of biodiversity, convention on biological diversity must take primacy over trade related Intellectual Property rights (TRIPS). Protection of biodiversity and the Traditional Knowledge is the inevitable task before the nations in the interest of mankind. There are many challenges before the third world countries posed by the IPR regime, which needs to be addressed:

• Protection and preservation of Traditional Knowledge;
• Access to and sharing to benefits of traditional resources knowledge developed by the Indigenous communities.
• No alteration of Indigenous and tribal community from their Traditional Knowledge and habitat.
• Help to local and Indigenous communities to develop their own economic uses of Traditional Knowledge must be provided.

Now days the International market is developing at a great pace. And in this new International Patent regime, it is high time to protect and preserve the rich heritage, because this is adverse to the interests of Indigenous and tribal communities. It is estimated by the World Health Organisation that 80 per cent of world’s population depends upon the Traditional Knowledge of medicine for their health.[33] Traditional Knowledge is not only important for those who depend upon it, but also equally important for the modern industry, agriculture, and sustainable development. Thus preservation of this Traditional Knowledge is a must in the present. But at the same time, in an economy that in increasingly global and knowledge based, Intellectual Property regimes must adapt in response to the concerns of diverse constituencies. To ensure that these regimes are effective and have legitimacy, IPR policy makers should work with these constituencies, these Traditional and Indigenous knowledge holders and explore the practical options, which are going to be highly useful in the further development of this field.

[1] David R. Downes, How Intellectual Property  Can Be a Tool To Protect Traditional Knowledge, 25 COLUMBIA JOURNAL OF ENVIROMENTAL LAW 253 (2002)

[2] Dr. John Mugabe, Intellectual Property Protection and Traditional Knowledge, AFRICAN CENTRE FOR TECHNOLOGICAL STUDIES NAIROBI KENYA.

[3] Laws Relating To Intellectual Property Right, National E-Governance Plan, government Of India,  http://business.gov.in/legal_aspects/laws_ipr.php (August 22, 2014).

[4] What Are IPRs, World Trade Organisation, 2014,

http://www.wto.org/english/tratop_e/trips_e/intel1_e.htm (August 22, 2014)

[5] Supra 2

[6] Convention on Biological Diversity, 1994.

[7] TRIPS, 1996, Art. 1(3).

[8] Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (Geneva: Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities. Working Group in Indigenous Populations (1993),

Doc. No. E/CN.4/ Sub.2/AC.4/1993/CRP.5.

[9] Josephine R. Axt. Al., Biotechnology, Indigenous Peoples, And Intellectual Property Rights 58 (1993), (August 22, 2014)

http://ipmall.info/hosted_resources/crs/93-478_930416.pdf.

[10] Anil Gupta, Building Upon What The Poor Are Rich In: Honey Bee Network Linking Grassroots Innovations, Enterprise, Investments And Institutions, (August 23, 2014)

http://csf.Colorado.edu/sristi/papers/building.html

[11] David A. Cleveland & Stephen C. Murray, The World’s Crop Genetic Resources and the Rights of Indigenous Farmers, 38 Current Anthropology 477, 483-85 (1997).

[12] Thus, the United Nations Universal Declaration of Human Rights provides that “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” Universal Declaration of Human Rights, adopted Dec. 10, 1948, G.A. res. 217A (Ill), U.N. Doc. No. A/810 at 27 (1948).

[13] Michael Blakeney, Trade Related Aspect Of Intellectual Property Rights: A Concise Guide To The TRIPS Agreement 151-52 (1996).

[14] James Boyle, Shamans, Software, And Spleens: Law And The Construction Of The Information Society 138 (1996).

[15] Dr. Sreenivasulu N.S., Intellectual Property Rights 269 (Regal Publications, New Delhi-110018, 2007)

[16] The Patents Act, 1970, The original Patent Act of India is the Patent Act of 1970, the same has been amended in 1999, 2002 and latest by 2005 to implement the provisions of the TRIPS agreement.

[17] Indian Patent Act, 1970 Sec. 92A (as amended in 2005)

[18] Doha Conventions 2001, Ministerial Conference Fourth Session, 14 Nov. 2001

Click to access ddec_e.pdf

[19] International Labour Organisation, Convention no. 169, June 27, 1989

http://www.ilo.org/Indigenous/Conventions/no169/lang–en/index.htm

[20] Biological Diversity Act, 2002

[21] TRIPS Agreement, 1994, Art. 27.3b.

[22] Protection of Plant Varieties and Farmers’ Rights Act, 2001

[23] Jim Duke, Dr. Duke’s Phytochemical and Ethnobotanical Databases, (August 24, 2014).

http://www.ars-grin.gov/cgibin/duke(ethnobot.pl)

[24] Sanjay Kumar, India wins Battle with USA over Turmeric Patent, 350 Lancet 724 (1997); U.S. PTO Patent No. 5,401,504.

[25]Dr. Vishwas Kumar Chauhan, Protection of Traditional Knowledge in India by Patent: Legal Aspect,

IOSR Journal of Humanities and Social Science (JHSS) ISSN: 2279-0837, ISBN: 2279-0845. Volume 3, Issue 1 (Sep-Oct. 2012).

 http://www.iosrjournals.org/iosr-jhss/papers/Vol3-issue1/F0313542.pdf

[26] Rajshree Chandra, Knowledge As Property: Issues in The Moral Grounding of Intellectual Property Rights 309 (Oxford University Press 2012)

[27] Anil Gupta, Patent on ‘Neem’: Will it deprive Indian farmers of right to use it? (1996), (August 25, 2014).

http://csf.Colorado.edu/sristi/papers/patentonneem.html

[28] U.S. Patent No. 4,946,681.

[29] U.S. Patent No. 5,124,349.

[30] Supra note 27

[31] Ibid

[32] David R. Downes, How Intellectual Property Could Be A Tool To Protect Traditional Knowledge, 25 Colum. J. Envtl. L. 253 2000, 281

[33] WHO Report, 1993.