Protecting ‘Trade’-itional Knowledge: Towards the Economic Development of Local Communities
Some of our most important knowledge about the world is not contained in books. It is living knowledge; embedded in local practices and passed on from one generation to the next. No single definition could possibly do complete justice to the diverse forms of knowledge that are held by traditional communities. The wider significance of �Traditional Knowledge� (TK) means that it arises in international discussions on a host of topics including trade and economic development. However, knowledge is not �traditional� only because of its antiquity. Much traditional knowledge today is a vital and dynamic part of the contemporary lives of many communities. It essentially is a form of knowledge which has been developed, sustained and passed on within a traditional community. It is its relationship with the community that makes it traditional.
Human societies have seldom been self-sufficient in all respects. They have not only consumed knowledge-based and other goods which are produced locally, whether by themselves or others but have also given them, shared them, received them, owned them and most importantly exchanged them with others including those from different communities. These were in fact, the nascent beginnings of trade. Even in the present world economy, TK is a means to social and economic development. For example, the Seri people of Mexico use the Arte Seri mark to distinguish their craftworks based on their TK and other genetic resources, and to support a sustainable trade in these products.
Whether TK should be legally protected or not, is a question that has been on the anvil for a considerable amount of time. Perhaps the most important agreement to put TK protection on the international agenda was the Convention on Biological Diversity (CBD) of 1992. Today, commercial exploitation of this knowledge by third parties is only one of the concerns that confront TK holders. This is what primarily raises questions of legal protection, prior informed consent and equitable benefit-sharing by the local communities.
Protection of traditional knowledge through intellectual property law is being sought in the forms of �positive protection� and �defensive protection�. Positive protection refers to the acquisition by the TK holders themselves of an intellectual property right such as a patent or an alternative right provided in a sui generis[i] system. Defensive protection refers to provisions adopted in the law or by the regulatory authorities to prevent intellectual property right claims to knowledge, a cultural expression or a product being granted to unauthorised persons or organisations. In deciding the kind of legal protection that could be accorded to TK, the aspirations and expectations of TK holders must be borne in mind. Critics of the idea of legal protection argue that creating a TK regime would represent the removal from the public domain of a very large body of practical knowledge about solutions relating to health, agriculture and the environment. However, enforceable legal rights are not the only thing on which the benefits derived from trade hinge upon. It also depends on the ability of traditional communities to take advantage of national and international law including property and access rights relating to land, natural resources and intellectual property.
Numerous times though, instead of protecting this knowledge, intellectual property law may have actually assisted in its commercialisation by individuals or entities that are external to the TK generating community. Naturally, the situation that results is an inequitable one in which the knowledge is made marketable and is profited from without attribution or compensation to the knowledge-generating community.
Closer home, in the recent past, India has had to thwart attempts by western usurpers who were attempting to patent the medicinal value of the neem plant and the healing properties of turmeric for their own economic benefit. The creation of the Traditional Knowledge Digital Library (TKDL) is a noteworthy effort on the part of the intellectual property administrators in India, to document in detail a vast pool of traditional medicinal knowledge that we possess. That the TKDL has been hugely successful is evident from the fact that as of June 2011, in Europe alone, India had succeeded in bringing about the cancellation or withdrawal of 36 applications to patent traditionally known medicinal formulations, in under 2 years.
Even with wide-spread cases of attempted or successful TK usurpation, not all hope is lost. There are, albeit a few cases where the benefits of monetisation of knowledge derived from traditional communities flow back to them. One such example is found in the southern part of India � the medicinal knowledge of the Kani tribes led to the development of a sports drug named Jeevani. Two patent applications were filed on the drug and the technology was then licensed to an Indian pharmaceutical manufacturer pursuing the commercialisation of Ayurvedic herbal formulations. In order to share the benefits of the TK-based drug, a trust fund was subsequently established.
For a holistic solution to the problem of protection of TK; given the complexity of the issue, workable measures need to be devised based on consensus achieved on their adoption. Measures may be conceived at both the national and international levels, but they must be consistent, coherent and mutually supporting. The active participation of traditional knowledge holders and traditional communities should be encouraged in the formulation of policies at both levels. Adjustments can also be made to use the current IP regime in a manner that maintains balance between the protection and preservation of TK and the free exchange of knowledge.The protection of TK is an evolving field, one that will continue to pose questions forcing the international community of policy makers to think that it might just be necessary to come up with a common framework for countries to follow, within which they can further develop their national laws.
– Anandita Bagchi
- World Intellectual Property Organisation; Intellectual Property and Traditional Knowledge; Booklet No. 2
- National IPR Policy (First Draft): December 19, 2014
- WIPO Magazine; Protecting India�s Traditional Knowledge: June 2011
- Andanda, Pamela; Striking a balance between Intellectual Property Protection of Traditional Knowledge, Cultural Preservation and Access to Knowledge; Journal of Intellectual Property Rights; Vol. 17: November 2012
[i] Sui generis measures are specialised measures aimed exclusively at addressing the characteristics of specific subject matter, such as TK