PROTECTION OF TRADITIONAL KNOWLEDGE AND IPR: DOES

INDIA NEED A SUI GENRIS LEGISLATION?

“When an elder dies a library burns”- this old African proverb may be the best way to
understand Traditional knowledge.

Traditional knowledge (TK) refers to knowledge that people of an indigenous community, in

one or more society, based on experience and adaption to a local culture and environment,
have developed over time, and constantly shaped by innovations and practices of each
generation.

TK systems have significance and relevance not only to its holders but also to the rest of the
mankind. The knowledge which is in oral form should be preserved and codified to facilitate
security. Efforts are needed to develop an essential native content and value. The survival of
TK is under threat. The variables that posture risk are: increased demand of
commercialization of biodiversity and traditional knowledge; and disruption in
interrelationship between TK generators and their resources due to business of bio-trade1.

Need has also been felt to secure this form of inappropriate use and to provide a catalogue or
even full knowledge of the many different expressions of folklore their countries possess.
There is an urgent need for the recognition and protection of traditional knowledge and
natural resources found in the developing world.

Traditional knowledge is a collectively owned property and is integral to the cultural identity
of the social group in which it operates and is preserved. India does not have any particular
enactment for protecting traditional knowledge. But the Patents Act, Plant Variety Protection
and Farmers Right Act, Biological Diversity Act, and Geographical Indication of Goods Act
have provisions that can be utilized for protecting traditional knowledge. The concept of
Access and Benefit sharing2, which is an integral part of protecting traditional knowledge has

1
Bio trade refers to the movement of biological resources between countries, companies, academic
institutions and individuals for actual or potential profit.
2
An Access and Benefit Sharing Agreement (ABSA) is an agreement that defines the fair and equitable sharing
of benefits arising from the use of genetic resources.

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specific reference to the Biological Diversity Act and also the Plant Variety Protection and
Farmers Right Act has gained significance.

The case study of Jeevani drug (Trichopus zeylanicus) gives an insight into the concept of
Access and Benefit sharing. The importance of traditional knowledge is highlighted in the
revocation of patents granted to derivatives of Neem, Turmeric and Basmati on the ground
that they were part of the traditional knowledge of our country.

Attention has been drawn to the international initiatives at protecting traditional knowledge,
international undertaking on plant Genetic Resources for Food and Agriculture and the
Agreement on Trade Related Aspects of Intellectual Property Rights. But there are no
uniform standards regarding the protection of different types of traditional knowledge owned
by local communities. The reason for this divergence of laws is that the international
community never had an occasion to look at the protection of traditional knowledge in its
entirety. There is an urgent need to enact a sui generis3 or alternative law to protect traditional
knowledge.

Traditional knowledge is worthy of protection. However there is no single binding treaty on

the protection of TK. The absence of a universally accepted definition of traditional
knowledge and a lack of defined parameters for the protection of such knowledge is one of
the major obstacles to the protection and acknowledgement of this knowledge. It has been
found that the use of patents, trademarks, geographical indication and copyright may not be
the appropriate way to protect traditional knowledge. More appropriate tools for the
protection of the traditional knowledge include: the documentation of traditional knowledge,
a mere registration and innovation patent system, and the development of a sui generis
system4.

Intellectual Property Right offers two forms of protection to traditional knowledge:

 Defensive protection or measures which ensure that IP rights are not given to parties
other than the customary holders. Some countries and communities are also

3
Sui generis literally means “of its own kind” and consists of a set of nationally recognized laws and ways of
extending Plant Variety Protection (PVP) other than through patents.
4
A Sui generis system consist of some standard forms of intellectual property protections combined with other
forms of protections, for protecting traditional knowledge and genetic resources.

2
 developing traditional knowledge database that may be used as evidence of prior art
to defeat a claim to a patent on such traditional knowledge, and
 Positive protection of traditional knowledge that empower TK holders to protect and
promote their traditional knowledge. In some countries, sui generis legislation has
been developed specifically to address the positive protection of traditional
knowledge. Providers and users may also enter into contractual agreements and use of
existing IP systems of protection.

There are number of international agreements that touch upon the rights of traditional
knowledge holders, but three have a particular bearing on the relationship between traditional
knowledge and the patent system: the Convention on Biological Diversity (CBD);
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS); and the
Patent Cooperation Treaty (PCT).

The theory underlying the CBD Convention was that while traditional communities may not
have invented knowledge and ought the medicinal properties of local plants, they ought to be
rewarded nonetheless for their preservation and conservation of biodiversity through the
limited rights to control and compensation. Traditional knowledge exists in public domain.
In some cases, indigenous peoples are concerned about the inappropriate use of their
knowledge. Indigenous people want to ensure that bio prospecting does not occur without the
Prior Informed Consent5 (PIC) and they must have equal share in any benefits.

The preamble to the CBD Convention recognizes “the close and traditional dependence of
many indigenous and local communities embodying traditional lifestyles on biological
resources, and the desirability of sharing equitably benefits arising from the use of traditional
knowledge, innovations and practices relevant to the conservation of biological diversity and
the sustainable use of its component”6.

The Patent Cooperation Treaty raises issues regarding traditional knowledge protection in at
least two respects, and while both directly concern the international phase, they have national
phase implications. The first issue concerns the extent to which countries are free to create
rules, in particular relating to the disclosure of origin of traditional knowledge, that have an

5
PIC is the permission taken from original holder of biological resources and related TK to access and
commercial exploitation of resources and associated knowledge.
6
Article 8(j) of CBD convention allows countries to make sui-generis laws at national levels.

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impact on the international phase. The second concern the extent to which the non-building
prior art search that occurs during the international phase is likely to identify and properly
search inventions based on traditional knowledge7.

The protection of traditional knowledge, genetic resources and folklore has provoked a long
and interesting debate between developed and developing countries. Developed countries
have used arguments such as, traditional knowledge is in the public domain and there is no
such thing as “bio piracy8” and therefore can be patented9. On the other hand, developing
countries argue that the actual intellectual property right system leads to unfair situations,
such as misappropriation of traditional knowledge, bio piracy and an unsustainable use of
biodiversity; they claim the requisite of disclosure of origin 10, and benefit sharing11 and they
are not liable to be patented.

There are many problems experienced by indigenous people when they are trying to protect
their traditional knowledge under IP laws as they fail to satisfy the requirements for the
intellectual protections. Patents provide a legal monopoly over the use, production and sale of
an invention, discovery, or innovation for a specific period. In order for an invention and
innovation to be patentable, it generally must meet three criteria: novelty, non-obviousness,
and industrial application. Since, most of the traditional knowledge is ancient and has been
for a long period of time, they are unable to meet the requirements of novelty and
inventiveness and therefore patent protection may be difficult to meet12.

Another important point is that possession is the most important basis to claim for patent
protection, thus traditional knowledge is common knowledge and a product of collective
experience without an individual act of creation; therefore it gets precluded from getting
protection.

7
Texas Wesleyan Law Review, volume 15
8
Bio piracy can be defined as obtaining IPR to gain monopoly right over the biological resources or TK based
commercial products without consent, recognition and associated knowledge.
9
Supra note 7
10
IP and TK, genetic resources and folklore
11
Benefit sharing refers to an agreement of sharing benefits resulting from commercially exploiting the
biological resources and associated knowledge of a traditional community with that community.
12
Supra note 10

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Following are the steps that have been taken by the Indian Government to protect
Traditional knowledge (SUI GENERIS SYSTEM).

India is a party to the convention on CBD. The CBD offers opportunities to India to realize
the benefit of these resources. India has already enacted an Act to provide for protection of
biological diversity, sustainable use of its components and equitable benefit sharing arising
out of the use of biological resources. It addresses the basic concern of access to, collection
and utilization of biological resources and knowledge by foreigners and sharing of benefits
arising out of such access. The legislation also provides for a National Authority, which will
grant approvals for access, subject to conditions, which ensure equitable sharing of benefits.
The main intent of this legislation is to protect India’s biodiversity and associated knowledge
against their use by individuals without sharing the benefits arising out of such use and also
check bio piracy.

The Indian legislation for the protection of Plant Varieties and Farmers’ Right Act, 2001
also acknowledge that the conservation, exploration, collection, characterization, evaluation
of plant genetic resources for food and agriculture are essential to meet the goals of nation
food and nutritional security as also for sustainable development of agriculture for the present
and future generations.

The Geographical Indication of Goods (Registration and Protection) Act, 1999 is another
step taken by India. The Act primarily intends to protect the valuable geographical
indications of our country. The protection under the Act is available only to the geographical
indications registered under the Act and to the authorized users. It may be possible for the
holders of the Traditional knowledge in goods produced and sold using geographical
indications can register and protect their traditional knowledge under this law13.

Various suggestions have been advanced in India to extend protection to knowledge,

innovations, and practices. These include documentation of traditional knowledge,
registration and innovations patent system, and development of sui generis system. It is
sometimes believed that proper documentation of associated traditional knowledge could help
in checking bio piracy. In pursuance thereof, the Government of India created the Traditional
knowledge Digital Library (TKDL), an integrated global bio piracy watch system that allows

13
Dr. Elizabeth Varkey, TK- the changing scenario in India pdf.

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for the monitoring of patent applications that seek to patent Indian medical systems. It serves
as a prior art registry and as a defensive mechanism against bio piracy.

“The Protection, Conservation and Effective Management of Traditional knowledge Relating

to Biological Diversity Rules, 2009” (also known as Traditional knowledge Rules 2009),
the rules have been drafted by the National Biological Authority under section 36(5) and 62
of the Biological Diversity Act, 2002 to protect Traditional knowledge.

To conclude as protection of traditional knowledge definitely needs a framework as it is the

foundation of large percentage of the world’s population and must be secured. Legislation on
IP can become blessing if we have the ability to protect traditional knowledge. The current
sui generis system and procedures for protecting the indigenous knowledge are yet to be
worked out traditional knowledge holders must have the capacity to play an active role in the
procedure without shouldering the burden of combating those who seek to obtain patents.
Once traditional knowledge is protected from foreign IP rights and the original holders of the
knowledge benefit from its commercialization, the misappropriation of traditional knowledge
will be limited and the gap between developing and developed countries narrowed.