INTELLECTUAL PROPERTY AND TRADITIONAL WISDOM: INSIGHTS FROM INDIA

INTRODUCTION:

Intellectual property rights (IPR) serves as a fundamental apparatus for protecting Inventive pieces and pioneering creations whereas traditional knowledge is a collective heritage, passed down through generations without formal documentation. In recent years, the symposium around the inclusion of conventional knowledge in IPR has expanded, which encompasses the challenges and opportunities to find a balance between preserving cultural heritage and protecting visionary endeavors, innovations, novel contributions, and ingenious artworks of the local communities. India, a land steeped in ancient traditions, with a rich cultural heritage, offers a unique perspective for examining the intersection of traditional wisdom and IPR and recognizes the need to protect it from misappropriation and exploitation. The country has a vast array of indigenous communities that have unique knowledge systems that have been passed through generations. They may include folk dances, medicinal treatments, agricultural practices, domestication of animals, craftworks, and many more. Protection of this knowledge is crucial for sustainable development, equitable sharing, promotion of the heritage of traditions, and safeguarding the unique ways of living of different communities. This article delves into the insights and challenges associated with protecting traditional knowledge in India through IPR mechanisms.

• Keywords: Intellectual Property Rights, fundamental apparatus, traditional knowledge, cultural heritage, ancient traditions, unique perspective, indigenous communities, sustainable development.

IMPORTANCE OF TRADITIONAL WISDOM AND THE NEED FOR ITS PROTECTION:

Traditional wisdom that has been passed down generations for centuries and put to us local people, indigenous communities as per their customary laws. Traditional knowledge is of vital significance, involving a wide array cultural, environmental social and economic dimensions. Conservation of biodiversity and sustainable management of natural resources through practice like wildlife conservation, environment protection cannot be done without remote sensing as it is proved useful for environmental stewardship. It includes the folklore, rituals, languages and customs that create a sense of bonding both within families for generations and among small-scale societies. In such areas, where modern health care services and medicines are sparse traditional knowledge is often the main ingredient for traditional pharmaceutical production.Many of the modern medicines and technological innovations have their roots in traditional knowledge and by integrating them with contemporary frameworks we can develop holistic solutions to global challenges.

Over the years, the importance of traditional knowledge and its protection has gained growing recognition on an international basis as well. The goal of protection is to ensure that there should not be any kind of misuse and misappropriation such as copying, or adaptation by unauthorized groups. Indigenous communities are discriminated against and harassed based on racism, colonialism, economic status, dispossession, etc. contributing to socioeconomic disintegrity and erosion of traditional knowledge. Bio-piracy, which is commercial and unlicensed abuse of traditional knowledge, is also one of the factors for its immediate protection.  Safeguarding traditional knowledge protects the very ideas (IPR), prevent patentability without consent that maintains dignity and respect of indigenous locals, monetary incentives offer a fair degree of royalties in return for their contribution this would lead to social economic upliftment.

MECHANISMS, AND CHALLENGES FOR THE PROTECTION OF TRADITIONAL KNOWLEDGE:

Mechanism are different types of techniques and structures developed in order to protect the traditional knowledge not only from exploitation but also loss or misuse that will enable them be respected, preserved as well used properly.

There are broadly two categories of mechanisms that include- positive protection and defensive protection. Positive protection establishes legal frameworks, IPRs, Customary Laws, Agreements, Cultural-Heritage preservations, documentation, and other policy and regulatory mechanisms. On the other hand, Defensive protection mechanisms call for adopting actions to actively stop the acquisition of Traditional knowledge such as patenting laws, community protocols, traditional knowledge registries, etc. There is a strong preference given to defensive mechanisms because they aid more effectively in safeguarding traditional wisdom as all types of documentation databases are private archives that are held by local communities. On the other side, Positive Protections have not gained enough strength in the forms of laws and status on both national and international levels.

Additionally, the protection of traditional knowledge contains significant challenges. A major issue is the lack of codification and documentation, making it difficult to preserve under conventional IPR systems, which mandate clear ownership and written shreds of evidence. Another challenge is complex Ownership and Recognition, as there is not a single defined owner but a community is involved in any creation. Many foreign entities often patent traditional Indian medicines without acknowledging or compensating the original knowledge holder which is identified as Biopiracy. The lack of robust mechanisms to facilitate benefit-sharing also exacerbates the exploitation problem of Traditional knowledge.

LEGAL FRAMEWORK IN INDIA FOR PROTECTION:

India has progressive legal measures including legislative, institutional mechanisms and documentation initiatives for the protection of traditional knowledge. To prevent traditional knowledge from being exploited, many laws have been passed over the years to protect them. Prominent ones are:

• Biological Diversity Act, 2002: It is an exhaustive Indian legislation for the conservation of extensive biological diversity as proposal like secure sustainable development to secure fair and similar advantage sharing due on resources or knowledge associated with traditional systems. This is a landmark initiative to fulfill obligations under the Convention on Biological Diversity (CBD).
• Traditional Knowledge Digital Library (funded by both the CSIR and Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy) — India has launched an innovative mechanism under TKDL to protect Traditional Indian Knowledge at Patent Offices across the globe.
• Geographical Indication (GI Tag) – The act which preventing un-authorized use of a geographical indications on products having special links to the place by registration & Protection for Goods in India, This law protecting GIs extends IP protection beyond that available under trade mark laws and Added an another layer over it, where any GI tagged product are prohibited from using their name across adoption /adaption or used anywhere if they not owing directly connect with Authentic Place. This act has been used to protect many traditional Indian Products like Bhagalpur Silk, Darjeeling Tea and Madhubani Paintings among other things, from unauthorized use of names.
• The Patent Act, 1970: Section- 3(p) of this act clearly defines the aggregation and duplication of Traditional knowledge of known properties for traditionally understood contents as not patentable.
• Guidelines for ABS (Access and Benefit Sharing): Guidelines issued by India on the pre-requisite of ensuring prior informed consent, establishing mutually agreed terms based approvals concerning Nagoya Protocol, traditional knowledge & biological resources.
• National Innovation Foundation (NIF): NIF is established to accept, respect and protect individual creativity through documentation of people’s knowledge/innovations/skills.

COMMON PRECEDENT CASES IN TRADITIONAL KNOWLEDGE

• Turmeric patent case (INDIA VS. USA) :

In 1995, the United States Patent & Trademark Office granted the patent to two non-resident Indians on the healing properties of turmeric, Council of Scientific and Industrial Research (CSIR) proved that India had prior knowledge about it, leading to the patent being revoked in 1997.

• Neem Tree (INDIA vs. USA and EUROPE)

One of the best-known examples is 1990s India where neem tree (Azadiratcha indica) – long used for centuries in traditional medicine and as a pesticidal agent, but suddenly sought after by drug stores worldwide- quickly became an emblematic discussion commodity when patents started being granted on compounds known to be biologically active from this plant but at last, the European Patent Office revoked it.

CONCLUSION:

The convergence of intellectual property and traditional wisdom in India reveals both significant challenges and unique opportunities. There has been a non-jurisprudential advocacy to protect and conserve the traditional knowledge that is essential in terms of investment. India has the opportunity to lead on protection of cultural and biological diversity, by putting traditional wisdom into function within modern IP as well as encouraging international cooperation.  India’s proactive measures have already laid a strong foundation for the protection of traditional wisdom. These initiatives are crucial for documenting, digitalizing, and preventing its misappropriation and ensuring that it is recognized as prior art in patent applications worldwide. However, the journey is far and needs consistent efforts to achieve the goal. By adhering to the rules and regulations we can adequately recognize and protect the nuances of traditional wisdom.

AUTHOR: RIDHI AGGARWAL (Institute Of Law, Nirma University)

REFRENCES:

IPR and Traditional Knowledge, Manupatra (2023), https://www.manupatra.com/roundup/363/articles/ipr%20and%20traditional%20knowledge.pdf

World Intellectual Property Organization, Introduction to Intellectual Property and Traditional Knowledge, World Intellectual Property Organization (2023), https://www.wipo.int/export/sites/www/tk/en/docs/ip-tk-introduction-en.pdf

IP Leaders, IPR vis-à-vis Traditional Knowledge, iPleaders (July 10, 2024), https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/

Council of Scientific & Industrial Research, Traditional Knowledge Digital Library, CSIR, https://www.csir.res.in/documents/tkdl