INTRODUCTION
Numerous industries that primarily rely on local communities’ knowledge, practices, innovations, techniques, and technologies for the protection and utilization of genetic resources, as well as for various human activities, including healthcare, agriculture, food preservation, and sustainable development. Traditional knowledge (TK) encompasses all forms of knowledge, including indigenous knowledge, local knowledge, folklore, traditional medicinal practices, their applications and preparation, handicrafts, cultural expressions, treatment methodologies, and any manufacturing processes; as well as knowledge pertaining to the utilization of plants, seeds, and other materials. [1]
Biological and/or genetic resources are typically associated with traditional knowledge. Numerous methods are available for the protection of traditional knowledge. Human cultures have consistently generated, enhanced, and transmitted knowledge throughout generations. Their cultural identities frequently rely predominantly on this “traditional” information. The vast majority of persons predominantly rely on traditional knowledge in their everyday lives. Numerous individuals in impoverished countries depend on traditional knowledge for their food security and health. In several countries, the sole economically viable therapeutic option available to the impoverished is a traditional remedy. [2]
In developing nations, traditional medicines fulfill the medical requirements of up to 80% of the population. Furthermore, several contemporary pharmaceuticals are derived from the understanding of the therapeutic attributes of flora. The utilization and continual enhancement of plant varieties by local farmers, together with the dissemination and interchange of these varieties and associated information, are essential for the agricultural systems of developing nations. Western multinational corporations utilizing biological resources in developing countries must contribute to the preservation of traditional knowledge at both local and global levels. The necessity of such a system is fervently debated in several international forums, as the conservation of traditional knowledge, being a worldwide concern, requires international collaboration, which relies on a robust and effective international framework. The insufficient protection of traditional knowledge has thus emerged as a matter of global concern. It is unsurprising that individuals are discussing it.
The intricacy of the issue renders the defense of TK both domestically and internationally problematic; it engenders conflicting interests among many stakeholder groups. primarily addresses the necessity of safeguarding traditional knowledge. Who possesses protected traditional knowledge and benefits from its conservation? What objective is intended to be accomplished by safeguarding intellectual property—both moral and pecuniary rights? What activities are deemed inappropriate or prohibited concerning protected traditional knowledge? Should the right to conserve traditional knowledge be restricted or exempted? What is the appropriate period for safeguarding? What level of protection do intellectual property rights now provide? Which gaps require filling? What punishments or fines should be imposed for actions deemed unlawful or unethical? In what ways should national and international regulations vary? What challenges must be addressed at both national and international levels? What is the appropriate treatment for rightsholders and foreign beneficiaries? Can Access and Benefit Sharing (ABS) be utilized to protect traditional knowledge? Can security be afforded to conventional knowledge to prevent origin disclosure? Documenting Traditional Knowledge for Prior Art Investigation. What are the essential values, constraints, and legal framework of WIPO’s proposed Convention on the Protection of Traditional Knowledge? Do India’s primary regulations for the preservation and protection of traditional knowledge, referred to as the Sui generis system for the protection of traditional knowledge in India (TKDL), align with global trends?
While TK’s policy difficulties are numerous and intricate, the IP challenges may be classified as either defensive or proactive protection.[3]
Defensive protection comprises strategies employed to prevent unauthorized third parties from asserting intellectual property rights on traditional knowledge. WIPO has amended the Minimum Documentation of the Patent Cooperation Treaty and the International Patent Classification system. Numerous governments and groups are progressively establishing traditional knowledge databases that may function as evidence of prior effort to challenge a patent claim for such knowledge. The World Intellectual Property Organization (WIPO) created a toolkit designed to assist traditional knowledge (TK) holders in documenting their TK.[4]
Two further facets of positive traditional knowledge protection through intellectual property rights are being examined: the prohibition of unlawful use and the proactive utilization of traditional knowledge by the originating community itself.
The global community endeavored to establish an international legal framework for preservation, recognizing and safeguarding traditional knowledge. In 1981, UNESCO and WIPO sanctioned a draft legislation concerning folklore. In 1989, the FAO proposed farmer rights while developing its International Undertaking on Plant Genetic Resources.
In 1992, the Convention on Biological Diversity (CBD) emphasized the need of preserving and enhancing traditional knowledge. Twenty years later, comprehensive and widely approved regulations for the preservation and dissemination of traditional knowledge remain absent. The CBD establishes protocols for disseminating the benefits of access to related information and genetic resources. Concerns exist about proponents of traditional knowledge and those who oppose intellectual property regulations globally. Numerous events utilizing traditional knowledge have garnered international notice. Conventional knowledge has gained significant prominence in the broader discourse on intellectual property.[5]
Among the frequently referenced “complications” arising from the provision of patent protection for concepts associated with traditional knowledge existing in the public domain are ayahuasca, neem, and turmeric. of these instances, invalid patents were issued due to the examiners’ deficiency of requisite conventional knowledge. The Hoodia plant species was granted a patent. The matter at hand was whether the San, who had the traditional knowledge foundational to the innovation, were entitled to a fair share of any income from commercialization, rather than the question of the patent’s validity.
Due to these widely reported instances, several developing nations, custodians of traditional knowledge, and advocacy organizations are advocating for enhanced preservation of traditional knowledge across various contexts. This objective resulted in the establishment of an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore within WIPO. The preservation of traditional knowledge and folklore is being considered by the CBD and many international organizations, including UNCTAD, WHO, FAO, and UNESCO. Furthermore, the Doha WTO Ministerial Declaration emphasized the significance of ongoing TRIPS Council efforts for the protection of traditional knowledge. The author of this paper highlights the challenges associated with traditional knowledge patent protection as intellectual property rights (IPR) and underscores its importance. The author also recommends new intellectual property rights measures to safeguard traditional knowledge.
Established in September 2000, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) provides a platform for WIPO member states to discuss intellectual property issues, including benefit-sharing, access to genetic resources, and the safeguarding of traditional knowledge and cultural expressions. In WIPO disputes, the terms “expressions of folklore” and “traditional cultural expressions” are utilized interchangeably.
In 2009, WIPO members resolved that the IGC should initiate formal negotiations to establish one or more international legal instruments to ensure the effective preservation of genetic resources, traditional knowledge, and traditional cultural manifestations. A tool or method may range from a formal treaty mandated for ratifying governments to a proposal for WIPO members. [6]
[1] Mayank Kapila, Understanding Traditional Knowledge in Post TRIPs Regime, I CLC SLR 133-134 (2013).
[2] Graham Dutfield, Protecting Traditional Knowledge and Folklore- A Review of Progress in Diplomacy and Policy Formulation, 1 UNCTAD-ICTSD 1 (2003).
[3] Graham Dutfield, Protecting Traditional Knowledge and Folklore- A Review of Progress in Diplomacy and Policy Formulation, 1 UNCTAD-ICTSD 1 (2003).
[4] Mayank Kapila, Traditional Knowledge: A Movement From Commons Towards Privatization, 3 IJAR 354-357 (2015).
[5] A. Chander& M. Sunder, The Romance of the Public Domain, 92 CALIF. L. REV. 1358 (2004).
[6] Carol M. Rose, The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems, 83 MINN. L. REV. 129 (1998)