the impact of ipr on traditional knowledge

7/28/2019 The Impact of IPR on Traditional Knowledge

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LawQuest 2008. All Rights are Reserved.

The Impact of Intellectual Property

Rights on Traditional Knowledge

By Poorvi Chothani, Esq.

LawQuest,Mumbai

www.lawquestinternational.com

November 24 - 26, 2008
http://www.lawquestinternational.com/http://www.lawquestinternational.com/


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Introduction

Traditional Knowledge (TK) is a collective knowledge belonging to an

indigenous community

Usually passed on from the elder members of the community to younger

generations

Generally, TK is expressed orally and exists in the form of beliefs, customs,

practices, folklore, songs, etc.

Need to protect TK by means of Intellectual Property Rights (IPR) is

internationally recognized

Various international organizations like WTO, FAO etc. are highlighting theneed to protect TK.


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Nature of Traditional Knowledge

No universally accepted definition for TK

TK is very diverse in nature

TK contains a rich understanding of plant, crop and tree species, medicines,

animals and local ecological and biological resources.

TK differs from modern western knowledge

Unlike modern western knowledge, TK does not confer monopolistic rights

upon the holders of such knowledge

Modern western knowledge is well documented and systematically

published through lectures, publications etc. whereas TK is expressed orally

E.g. An example of documented TK is Ayurvedic medicines


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Challenges Faced by Traditional

Knowledge

Encroachment of the modern lifestyle Reluctance of younger generation to follow and observe TK

Lack of respect and recognition to the value of TK Exploitation of TK for commercial purpose without offering compensation to

the indigenous community

Difficulty in expressing and documenting TK

Difficulty in identifying the title holders of TK


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Protection of Traditional Knowledge

Recognizing the value of TK as a major source of information;

Granting respect to indigenous communities;

Removal (or reduction) of a perceived injustice when such knowledge ismisused to create monopolistic rights;

Use of TK only with the consent of the indigenous community

Preservation of traditional lifestyles;

Protection or preservation of the environment;

Offering fair compensation to indigenous community if TK is used forcommercial gain; and

Promotion of its use for further development


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Impact of Intellectual Property Rights on

Traditional Knowledge

IP protection entitles the holder to have a monopolistic right to the exclusion of others

IPR includes patents, copyrights, trademarks, designs, trade secrets etc.

Referring to TK by some kind of mark, symbol etc. will help in identifying TK and prevent its in-appropriate use by non-indigenous community

e.g. A national certification trademark granted to Aboriginal and Torres Straits in Australia

Concept of Novelty and Prior Art and Dichotomy with Patent requirements

Impossible to Protect as Confidential Information or Trade Secrets

Full disclosure of TK to the Patent examiner and obtaining prior informed consent of the indigenous

community by offering them compensation helps in patenting products based on TKe.g. Grant of US patent for healing characteristics of turmeric was denied because of the lack ofnovelty

Expressing TK in the form of writing will enable to grant copyright protection to holders of TK


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Limitations of IPR

Difficulty in expressing TK in the form of writing, mark etc. Ignoring the existence of TK before granting patents suggests lack of

novelty

TK belongs to indigenous groups that cannot be easily identified

Granting protection to TK only for a limited period cannot serve the

purpose of preserving TK


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Geographical Indications (G.I.)

G.I. provides information on the source and origin of the product

G.I. reflects the quality, reputation and other characteristics attributed to the

products belonging to a particular geographical location

G.I. gained its importance as part of IPR under TRIPS Agreement India has enacted the G.I. of goods (Registration and protection) Act, 1999

IPR gives monopolistic rights for new and creative work whereas G.I. is a

part of TK belonging to indigenous community

E.g. Basmati rice, Swiss chocolates, Kolhapuri chappals, Darjeeling tea etc.


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Extension of Geographical Indications

Article 23 of Trade Related Aspects of Intellectual Property (TRIPS)Agreement reflects the extension of G.I to wines and spirits

Many developing countries including India are highlighting the need toextend G.I to other products to:

- promote export of valuable goods

- increase transparency in international trade

- recognize statutory protection to products belonging to a particularlocation

- help in reducing litigation costs

- help consumers to make informed choice


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International Initiatives to Protect Traditional

Knowledge

Paragraph 19 of the Doha Ministerial Conference provided a mandate to theTRIPS Council to examine the relation between the TRIPS Agreement andthe Convention on Biological Diversity

In 1982, World Intellectual Property Organization (WIPO) and United Nations

Educational, Scientific and Cultural Organization (UNESCO) adopted Modelprovisions for national laws on the protection of expressions of folkloreagainst illicit exploitation and other prejudicial Acts

In 1989, Food and Agriculture Organisation (FAO) introduced the concept offarmers rights into its international undertaking on Plant and GeneticResources

In October 2002, member states of WIPO established an inter-governmentalcommittee on IP and Genetic Resources, Traditional Knowledge andFolklore


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Conclusion

Preservation and protection of TK is important for sustainable development of

indigenous community

TK holders should continue protesting the misuse of their knowledge

International IPR regime has succeeded in protecting TK in some form

Need to create new right to protect TK is a must


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the impact of ipr on traditional knowledge

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