Why India Needs A Sui Generis Law For Traditional Knowledge Protection

May 30, 2026
6:50 am

In the constantly evolving and ever-changing paradigm of India’s IP Law Framework, the Geographical Indications of Goods(Registration and Protection) Act 1999(hereinafter referred to as “the Generis Law Act”) emerged as a standalone sui generis legislation for the protection of goods whose quality, reputation, or other characteristics are attributable to a specific geographical location, which, in many cases, is also its site of production.

The legislation was introduced with the objective of safeguarding the rights of those who produce such goods in a particular geographical location. India, being a signatory to the WTO’s TRIPS Agreement, was under an obligation to enact the same. Article 22 of the TRIPS Agreement mandates that members must provide the necessary legal means to protect goods possessing a unique quality, reputation, or other characteristic attributable to their geographical origin.

The GI Act: Limitations & Impact

Unlike conventional intellectual property rights, such as copyright, trademark, patents, or design, the Generis Law Tag is distinct in its nature and function. The former protections grant exclusive individual rights due to a work’s uniqueness or distinctiveness, coupled with fixated originality and temporal rights, whereas the latter relates to collective rights associated with the indication of geographical origin.

The Gl Act neither protects the good in itself nor grants the exclusive manufacturing rights, rights over its design or visual appearance, to any particular individual or group of individuals.

Another way to analyse GIs is through the purview of protection available to “intangible traditional knowledge and practices” (hereinafter referred to as TKP). In a country as diverse as India, intangible traditional knowledge and practices form an integral part of social and cultural life, intangible traditional knowledge and practices form an integral part of people’s lives. No single individual or group of individuals can claim sole right of proprietorship over them.

These are inter–generational, community-owned, constantly evolving, ancient practices. Sometimes, many of them have shared community ownership, with multiple communities practising the same traditions over centuries. The GI Act’s protection is inherently goods-centric, rendering intangible traditional knowledge and practices entirely outside its legislative ambit.

Although separate legislations exist for certain categories of TKPs, such as the Biological Diversity Act of 2002(for biologically associated TKPs), Protection of Plant Varieties and Farmers’ Rights Act of 2001, etc, the larger issue remains unresolved, and that is, the current IP regime fails to provide adequate protection to TKPs.

An important international development in this particular segment is the adoption of the Nagoya Protocol under the Convention on Biological Diversity. Through this, fair and equitable sharing of benefits from the use of genetic resources and associated traditional knowledge is ensured at the global stage.

Yet, the importance of the GI Tag is immense as it promotes the producers of a good from a particular place and encourages exports of authentic products. It also helps the rural community through small businesses to grow further and compete economically against big market giants. The authenticity certified through the GI Tag satisfies the consumer, too, regarding the genuineness of the product and prevents misleading indications.

Also, the GI Tags contribute to the preservation of the local production techniques, craftsmanship, and the unique, longstanding cultural identity associated with it. The enactment of this piece of legislation has protected a series of indigenous commercial products, sustaining the lives of millions of rural people. One of the earliest and most well-known examples of this protection was the GI Tag awarded to Darjeeling tea.

Though the stated objectives of the legislation have economically materialized into reality, the constant challenges faced due to new loopholes in the law pose serious questions for us. The dissonance between the other IP Law Frameworks and the GI Act has constantly affected the interests of smaller businesses and rural livelihoods. Recent controversial cases surrounding various international brands “seeking design inspiration” without attributing credit to the original artisans raise serious questions regarding when design inspiration becomes cultural imitation and how effective the enforcement mechanism of IP Laws is at the international level.

The issue is not confined merely to instances of brands like Prada engaging in practices of commercial cultural appropriation, it raises deeper questions regarding the collective rights associated with traditional knowledge, inter-generational artistic creations, and enforcement mechanisms through which true objectives can be achieved in letter and spirit.

GI Tag Framework: A Trojan Horse Of The Indian IP Regime

Among all the IP Laws, the Generis Law Act is one of the few frameworks through which local communities and indigenous traditions benefited a lot. On the surface level, the picture appears to be serene, beneficial, and harmless, but deeper examination reveals the structural and legislative inadequacies and how structural and legislative inefficacies contribute to devastating consequences. Recent controversies surrounding the Prada–Kolhapuri controversy force us to look beyond the peripheral level.

This is not a novel challenge, but instead, similar cases have been observed across multiple industries in recent years. Last year, Dior (formally Christian Dior SE), a French multinational luxury fashion house, attracted substantial critical scrutiny for its Paris collection featuring “a gold and ivory houndstooth coat”, with critics pointing out that this centuries-old metal embroidery technique emanates from northern India.

Interestingly, in all these cases, the compelling argument from the other side is also worth noting. The proposition is that such an amalgamation of traditional artistic creations, coupled with modern ideas, results in new trends, through which the original producers also take immense benefit. They further argue that, by doing so, they invoke aesthetics from different traditions, spotlighting them on a global scale to enhance their economic value in the global markets.

Though it’s true and an undeniable fact that such cultural adaptations and appropriations do result in higher popularity. Still, this indirect benefit can’t be used as a safety valve to justify the immoral, unethical practices of these global brands. The benefits accruing from such practices largely remain confined to global brands, with local craftsmen and traditional art practitioners receiving only a fraction of the economic benefits.

From the legal perspective, the GI Tag holders cannot exercise their rights against such practices because it does not amount to infringement under section 22 of the GI Act. The loopholes exploited here are that the global brands never use the geographical location when associating their product(s) with the registered GI Tag good(s); instead, “design inspiration” is being used to justify this. Through this mechanism, they circumvent the very objective that the GI Act aims to achieve. The question here is, when does this design inspiration become cultural imitation and start violating the basic fundamental principles of established commercial practices?

Apart from the GI Act, all other IP Legislations too falls short of protecting indigenous communities’ efforts. Tangible Traditional Knowledge and Practices cannot be properly accounted through the Western-oriented prism of Copyright, Patent, Trademarks, and other IP outputs. Conventional IP Laws rely on individuality, exclusive ownership, and identifiable authorship. Different legislations have distinct limitations in the context of these tangible traditional knowledge systems.

The Patents Act, 1970:

The Patent Act was legislated to protect innovative ideas and inventions. It requires novelty to gain protection, along with individual ownership and identifiable authorship. Traditional Knowledge and Practices, being in the public domain for centuries, often fail to qualify for this test. There is no provision to award rights to the whole community, and consequently often face uncredited commercialisation of their knowledge.

A few well-known examples of this in recent memory are the Basmati Rice Patent Dispute and the Turmeric Patent Dispute. Though a negative protection to local communities and practitioners of these traditional knowledge systems exists under section 3(p) of the Patent Act, it only prevents others from patenting inventions or any alteration associated with traditional knowledge. This does not award protection to its practitioners or local communities who have sustained these knowledge systems through oral transmission and intergenerational inheritance.

The inadequacy of existing legal frameworks leaves tribal and indigenous communities vulnerable to the erosion and misappropriation of their distinct customary practices and knowledge systems. The day is not far when Yoga, India’s indigenous practice, will find itself fully commercialised, culturally appropriated, and divorced entirely from its origins.

The Copyright Act, 1957:

The Indian Copyright Act, 1957, governs the protection of literary, artistic, musical, dramatic, and cinematographic works. The limitation due to the requirement of sole ownership, coupled with the protection being limited in duration (the author/creator’s life span + 60 years), fails to provide adequate protection to traditional knowledge systems and the unique, distinct artistic creations originating from them. Though, like the Patents Act, some protection is awarded here also.

The Copyright Act primarily protects original works fixed in a tangible medium. This fixation requirement may, for example, protect the tribal folklore, but fails to protect the essence, the idea, and the traditional knowledge system in itself from which these originated in the first place. The failure to protect intangible aspects, which in fact form the most integral part, from which such artistic expressions emerge, raises serious concerns.

Here, it is pertinent to highlight Section 31A of the Act. Through this provision, the unpublished work of a dead or unknown person can be published on the request made by any third party. Perhaps the gravest consequence of a tribe’s extinction or assimilation into the mainstream population is not merely the loss of its people, but the legal abandonment of its artistic heritage, works that are stripped of an identifiable author or community ownership, fall under this provision, where misappropriation becomes not just possible but legally permissible.

The Courts’ Approach:

Though inadequate legislative protection exists, understanding the court’s approach in this regard becomes important to trace how this particular IP segment has been transformed over the years. Through multiple judgments rendered by the courts of this land, several principles have been established in the realm of protection awarded to artistic creations originating from traditional knowledge systems.

With respect to patentability of the invention or ideas emanating from traditional knowledge systems, the courts have established the principle that mere aggregation does not amount to innovation. In M/s.The Zero Brand Zone Pvt. Ltd. Vs. The Controller of Patents & Designs, the Madras High Court held that the traditional knowledge boundary under section 3(p) of the Patents Act is not confined to formally documented entries. Instead, it extends beyond this and encompasses even undocumented knowledge prevalent in common community practice.

The limitation under the said section does not require the invention to be identical to traditional knowledge, but even the amalgamation of several traditionally known practices to constitute a new product without demonstrating any tangible technical advancement would trigger the above-mentioned provision.

Thus, the court upheld the Controller’s decision to reject the Patent application for the claimed product as Panchagavya and associated herbal leaves constitute traditional knowledge under the above-mentioned provision of the Patent Act. This judgment also gave an expansive reading of the phrase “in effect” mentioned in the above-mentioned provision, declaring that circumventing the exclusionary provision by recasting traditional knowledge in a product does not constitute a patentable case.

Whereas, in 2009, the apex court in its judgement in Academy of General Education Manipal v. Malini Mallya (AIR 2009 SC 1982), allowed Late Shri Dr. Kota Shivarama Karanth’s (Jnanapeeth awardee) developed dance form “YakshaRanga” based on a traditional dance form Yakshagana to be an original, unique and distinct dramatic art form eligible for protection under the Copyright Act.

The court noted that sufficient original creative contributions were made by highlighting that Dr Karanth’s derivative work based on a traditional art form (YakshaRanga) contained seven distinct Prasangas (episodes) along with changes introduced to the Raga, Tala, scenic arrangement, and costumes. This also highlights the structural problem, as the copyright protection for the traditional dance form is not vested with the traditional community of Yakshagana practitioners, who for centuries kept it alive through oral traditions and intergenerational transmission.

The inconsistency and presence of fault lines in the structural approach of our IP Laws have led our courts to give unsatisfactory judgments in the context of traditional communities preserving and practicing their knowledge systems. The courts have consistently struggled to protect the rights as well as to recognize the adaptive distinct creations emanating from the traditional knowledge systems.

Filling The Void: Global Precedents And The Sui Generis Solution:

The present situation compels us to think of a solution where the rights and interests of practitioners of traditional knowledge systems are protected, along with recognizing the distinct nature of unique adaptive works, truly seeking inspiration for cultural appreciation and not for cultural appropriation. In this context, the International legal framework provides some ray of hope.

Global Precedents:

Internationally, several mechanisms are adopted to resolve this dissonance, which existed in their IP regime too; one such case is that of Panama. A country in South America enacted a sui generis legislation for the protection of traditional cultural expression. The “Special Intellectual Property Regime on Collective Rights of Indigenous Peoples for the Protection and Defense of their Cultural Identity as their Traditional Knowledge” was enacted to protect the rights of indigenous communities of Panama.

It is one of the first comprehensive sui generis legislations specifically enacted for the protection of traditional knowledge in the world. The ownership and rights were awarded as collective rights to every person of the community to which that particular traditional knowledge or practice belongs. A substantive criterion for identifying the traditional knowledge and its associated practices, along with the community that sustained it, was laid down in this law.

Similar examples can be found in the Southeast Asian context, from the cases of the Philippines and Thailand. In the Philippines, the enactment of the “INDIGENOUS PEOPLES RIGHTS ACT (IPRA) 1997” and the “PROTECTION AND PROMOTION OF TRADITIONAL THAI MEDICINAL INTELLIGENCE 1999” of Thailand can serve as the central focus of our research for an Indian context-based legislation.

Apart from this, several international conventions and protocols also exist for the integrated approach towards protecting the rights of indigenous people. The Nagoya protocol of 2010 under the Convention on Biological Diversity(1992),(India ratified the same in 2012), which reaffirms the commitment and acknowledgement towards these communities, showcases that a collective approach can bring forward a significant change.

In 2000, the World Intellectual Property Organization set up an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC). Subsequently, through a continued dialogue process, the WIP reached an agreement titled “WIPO TREATY ON INTELLECTUAL PROPERTY, GENETIC RESOURCES AND ASSOCIATED TRADITIONAL KNOWLEDGE” in 2024. For the Indian context, several of these solutions offer valuable and instructive lessons through which a pragmatic Indian context-suited solution can be derived.

The Sui Generis Solution:

India lacks a comprehensive legislation on this segment of the Intellectual Property regime. The current legal framework falls short in providing adequate protection and, at times, negatively affects the rights of indigenous communities. The best way forward is to enact a similar legislation to that of Panama, but considering the unique aspects of Indian traditional knowledge.

One such attempt was made by Dr Shashi Tharoor(M.P., Lok Sabha) through a private member bill, “The Protection of Traditional Knowledge Bill, 2022 (Traditional Knowledge Bill)” during the 17^th Lok Sabha term, but subsequently lapsed on the dissolution of the 17^th Lok Sabha in 2024. This bill was based on the recommendations received by him on his earlier similar private member bill introduced in Lok Sabha in March 2017 titled “THE PROTECTION OF TRADITIONAL KNOWLEDGE BILL, 2016”.

In both bills, the main objective was to safeguard the traditional knowledge from being patentable and protect the rights of those indigenous communities that sustained such practices and knowledge. It vests rights over traditional knowledge in the Union of India, along with the States, if such traditional knowledge is either solely practised in that state or within multiple states.

While it absolutely banned the patentability of any traditional knowledge, along with this, it also addressed remedies for misappropriation of traditional knowledge (See Section 10 of the bill). The provision for the establishment of the Traditional Knowledge Fund, the National Authority on Traditional Knowledge, and the Knowledge Society through this bill would further act for the development of the local communities.

Though the bill had many considerable shortfalls, such as inadequate enforcement mechanisms, conflicts with the existing GI framework, and overlap with the Biodiversity Act, it still offers insightful ideas and solutions for further work.

Though not a standalone legislation on traditional knowledge, the Indian government in 2001 started the initiative of “The Traditional Knowledge Digital Library (TKDL) project” in collaboration between Council of Scientific and Industrial Research (CSIR), Ministry of Science and Technology, and the Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy (AYUSH), Ministry of Health and Family Welfare, of India.

Through this initiative, traditional knowledge has been properly documented and classified under the Traditional Knowledge Resource Classification (TKRC). With attempts like this, coupled with sui generis legislation and sustained efforts through the digitisation of the traditional knowledge systems, we can protect, preserve, and proliferate our heritage and generational knowledge. The Indian IP Framework must evolve in a way that traditional knowledge can be accommodated and flourish under its regime.

Why India Needs A Sui Generis Law For Traditional Knowledge Protection

The GI Act: Limitations & Impact

GI Tag Framework: A Trojan Horse Of The Indian IP Regime

The Patents Act, 1970:

The Copyright Act, 1957:

The Courts’ Approach:

Filling The Void: Global Precedents And The Sui Generis Solution:

Global Precedents:

The Sui Generis Solution:

Author Details: MR. Ojas Rai, Soon To Be A Student Of B.A. LL.B. (Hons.) At National Law School Of India University, Bengaluru

References: –

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