The fact that Traditional Knowledge is being widely discussed in different international forums points out to the fact that it encompasses both opportunities and challenges.
Indigenous and native communities who through the decades and centuries have preserved and propagated the traditional knowledge sources that have been developed by their communities and have been prevalent in their environment since time immemorial, treasure this traditional knowledge as a part of maintaining their very own cultural identities. This very traditional knowledge forms the basis of their ways of life and endows their cultural values, spiritual beliefs, intellectual vitality, and holistic development. However, in the recent years, many international companies and industries have tried and many a time been successful in obtaining patents for inventions that have been derived from the traditional knowledge given by these indigenous communities for their own commercial and economic advantages, without sharing the benefits with these communities or taking their prior consent. The local communities end up feeling that their traditional knowledge base is being misappropriated and that their right to exclusive utilization of these knowledge resources is being infringed.
The more shadowy side to the picture is that there are no proper and formal patent laws in place to protect this traditional knowledge base of the communities from misappropriation and infringement. The subsequent sections of the article will be dealing with the challenges that the local communities face by the virtue of being traditional knowledge holders and the rest of the sections will deal with the various protection methods that are available worldwide, emphasis being on the patent system as a means of protecting traditional knowledge and the additional provisions that have been set-up in order to reduce illegal patents on traditional knowledge around the world.
CHALLENGES FACED BY TRADITIONAL KNOWLEDGE HOLDERS
The various troubles that are faced by the local communities who are the traditional knowledge holders are listed as the following:
- Loss of the traditional knowledge: There are many factors that impinge on the communities who possess and disseminate the traditional knowledge to the future generations which causes this knowledge to be irretrievably lost. Some of these factors can include acculturation, migration, subjugation of traditional lifestyles by modern lifestyle techniques, external social and environmental burdens, etc.
- Lack of respect for such knowledge: Most of the times, the person administering or teaching about the traditional knowledge-based remedies and medicines does not isolate or describe each chemical compound that it is made up of individually, due to which the modern scientists, physicians and the general masses develop a sort of skepticism regarding that person’s expertise. This results in disregarding their knowledge and years of experience and taking away the respect and appreciation that they deserve.
- Commercial exploitation of traditional knowledge: The most pertinent problem faced by these knowledge holders to date is the fact that their knowledge is commercially exploited without taking their prior consent or equitably sharing the benefits so derived. This problem mainly results because there is no formal IP system in place, there is a lack of a unified voice of these communities, obscure policies concerning utilization and protection of the traditional knowledge is prevalent in most of the countries.
MECHANISMS FOR THE PROTECTION OF TRADITIONAL KNOWLEDGE
There are mainly two types of approaches in the IP system for the protection of traditional knowledge:
- Positive protection: Through this, the traditional knowledge holders can take action or seek remedies against any practice of misuse of traditional knowledge. These can include the existing IP laws and legal systems that are in place, including the law of unfair trade practices, those IP rights that have been adapted to focus on traditional knowledge and ‘sui generis’ systems in IP laws and independently that give rights to traditional knowledge holders. For example, in Foster v Mountford, the plaintiffs successfully argued that the publication of a scared-secret materials book titled Nomads of the Australian Desert should be banned due to breach of confidence by the anthropologist Dr. Mountford and that the book can also challenge the social and religious stability of this hard-pressed community.
- Defensive protection: Through this method, the knowledge holders can safeguard their rights by blocking any person trying to exercise illegitimate or invalid IP rights over traditional knowledge. The most important form of defensive protection is through the use of patents. Using defensive protection through the patent system can prevent others from patenting traditional knowledge illegally. For example, if the relevant traditional knowledge is made available in the public domain through publication in a journal before the patent has been applied for, then the traditional knowledge becomes prior art. Due to it becoming a prior art, the traditional knowledge cannot be said to be novel or inventive and a patent cannot be validly claimed over it. However, since traditional knowledge as prior art isn’t given much importance, its significance should be increased so that patents aren’t given to traditional knowledge that already exists in the public domain and is ignored as prior art.
The Government of India, recognizing the inadequacy in the Patents Act, 1970 have put up certain provisions that can safeguard the Indian traditional knowledge. This has been done by establishing the Traditional Knowledge Digital Library (TKDL) with the objective of preventing any sort of misappropriation of Indian traditional knowledge on Ayurveda, Unani and Siddha medicinal systems. This library makes available Indian traditional knowledge which are already in public domain, to the patent examiners around the world so that patent applications that claim patents over Indian traditional knowledge are rejected at the examination stage itself. For example, in the famous case where the U.S. Patent and Trademark Office granted a patent for the use of turmeric to treat wounds was later revoked because the medicinal properties of turmeric were already documented in ancient Indian Sanskrit texts and formed a part of the traditional knowledge of India.
As has been made clear through the above discussion, the present IP systems, new or expanded, have proven to be inadequate in more ways than one. This calls for taking account of the needs and expectations of the traditional knowledge holding communities through sui generis methods and involving international bodies like the World Intellectual Property Organization (WIPO) to build a solid legal foundation to safeguard their rights.