Indian Journal of T raditional Knowledge Vol. 2(2) . Apr il 2003. pp.l}l} - IO(i

Traditional knowledge: Its significance and implications*

S K Tripathi

Department of Secondary & Higher Educati on. MI-IRD. Government o f India. Shastri Bhawan. New Delhi 110001

The new millennium poses seri ous challenges to the internati onal legal community to sct new intern at ional legal standards for tack ling the problems o f in tell ec tual property protection th rown open by the technological developments. Protecti on of the T radi ti onal Know ledge (TK) of the local and indigenous communiti es seems to be one of the most contentious and compl icated issues. The hi storical development of protection of intell ec tual propcrty in the wake of industrial revo lution and its subsequent juri sprudential justifi cat ions based on indi vidual pri va te property ri ghts, pushed the traditional knowledge and the innovati ve pract ices based on it outside the purview of the formal intellectual property protection regime. Traditional know ledge was treated as know ledge in the public domain for free exp loitation without showing any respect nor concern for the efforts taken by the communiti es to preserve and promote the same. The new technologica l developments, particu larl y in biotechno logy , clearl y demonstrate the significance and usefulness of traditional know ledge for the development of new products of commerc ial importance. The formal intellec tual property sys tem never faci litated the custodians of traditional know ledge to enjoy and share the benefits derived from the new com mercial exp loitation of their knowledge base. The need to protect the traditional knowledge captured the attention of the internationa l community only recentl y hut the standard setting was left to the national governments. The absence o f internati onal standards, however, causes serious concern s for the protection of traditional knowledge and the benefits of new technology reach ing the custodians.

Hi storica ll y, the communiti es surv ived on their traditional knowledge base. The products they manufactured formed part of thei r li ve lihood. Even today many local and indigenous communiti es in the Asian countri es meet their bas ic needs from the products they manufacture and sell based on their traditi ona l knowledge. Maintenance of thei r health even now is based on traditi onal med icines derived from plants and other natural products. The deve lopmen t of new techno logy and the new use o f traditional knowl edge

"' Inaugura l Address of Shri S.K. Tripath i. Education Secretary. Govt. of India at the WIPO-Asia Pacific Seminar on Intell ectual Propert y and Genetic Resources. Trad itional Knowledge and Folk lore. 11 th Novt.:mber 2002. Cochin .

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based products today is the major threat to the surv i va l of many of these commu ni ti es . T he modern cultural industri es (printing, film and record ) as well as the manurac turing industri es (tex tile, handicrart s, pharmaceuti ca l, seed, etc.) now commerciall y ex pluit the trad iti onal knowl edge based products using new technology without the permission and sharing of profits w ith the communiti es. It is poss ible today to hring out new products or rind ou t new use of ex isting products based on traditi onal know ledge utili zing the technolog ica l deve lopments in the fi eld o f biotechnology. This is proved beyond doubt parti cularl y in the f ield of medicines, agriculture, ctc. The bio-prospecting helps th e sc ienti sts in the modern pharmaceu ti ca l research laboratories to get the know-how to develop new products or new use of ex isting products. Similarly trad iti onal designs or th e arti c les are reproduced by the modern industri es for its application in the consumer products . The development o f new products or new use of ex ist ing products enab les the industri es to get protecti on for these products th rough the formal intell ec tual property laws.

The lega l norms relating to the forma l intellectual property ri ghts based on copy right. patent , des ign. etc .. were developed to tackl e the social problems that emerged clue t:) the scientifi c developments during industrial revo lution in the W est. The legal norms crys tall ized to protect the new knowledge have a signifi cant bearing on the manner in which the western sys tem looked at sc ience and sc ientifi c developments. Thu ~ the concept o f 'orig inality' , ' novelty', 'utility', ' non-obv ious or in venti ve step' etc .. used to find out th e i tems th at are to be protected through the formal intellec tual property sy ~ t e m

addressed onl y th e scientifi c developments based on the western understanding of sc ience. Simil arly the insistence o f the identity o f the crea tor o f the new knowled ge -author or in ventor as the case may be - for the purpose o f affording protection also rel'lects the indi vidual private property juri sprudence underl y ing the protecti on of intell ec tual propert y. These concepts kept the trad iti ona l knowledge and the products based on it outside the scope o f formal intellec tual property sys tem and trea ted it as know ledge in the public domain for exploitati on w ithout authori zation. T hus the know ledge base o f th e community remains without any lega l protec ti on, where as rhe crea tors of new know ledge based on it using modern sc ience were allorded protecti on hy the formal sys tem. The provis ions in the TRIPS Agreement are a clear indication in thi s direc ti on. Thi s ca ll s for a dillerent juri sprudential approach for the protection of trad iti onal knowledge.

The intern at ional community on different occas ions made some attempts to protec t traditional knowledge. The first attempt perh aps was made by WIPO- UNESCO on develop ing the model prov isions for national legislati on for the protecti on o f folkl ore. Certa in traditional knowledge of the commLlIlity in the form of literature, music, craft s etc. is recogn ized for protection from reproduction without authorization . But there i" no express provision recognizing the ownership of thi s knowledge with the communiti es . The power to give authorization was left with the community or government authorit ies. Even though there was an attempt to bring out an international convention in line with the

TRIPATHI: TRADITIONAL KNOWLEDGE: SIGNI FICANCE & IMPLICATIONS 101

model provI sIons, this could not materialize because of various reasons. It appears majority of the countries have not followed the model provisi ons for protecting folkl ore probably because of the limitations of the provi sions.

One could see another attempt in the United Nations Draft Declaration on the Ri ghts or Indigenous People, 1994. They are also given the right to manage them. The provisions in the Convention on Biological Diversity to recognize and respect the traditional knowledge of the local and indigenous communiti es in the geneti c material s and share the benefit derived out of its use seems to be the first express internati onal commitment. The Convention mandates the approval and invol vement of the communiti es in the use of their traditional knowledge. Even in thi s Convention the ownership of traditional knowledge was not addressed. Many countries are ye t to bring out legislation to give effect to the provisions of the Convention.

The TRIPS Agreement also has some provisions having limited application to the protection or traditional knowl edge. The obligation to protect geographical indications can be used to protect traditional knowledge if associated with the indication used for production and sale of goods. It is made clear that a given quality, reputati on or other characteri stics of the goods essentially attributable to its geographical ori gin arc to be considered in identifying the geographical indications for protection . Thus it may be poss ible for protection through geographical indication the traditional knowledge associated with goods.

Thus it is clear that there is a general agreement within the internati onal community that there is a need to recognize the traditional knowl edge. It is also ev ident th at wherever possible it must be identified with the community and treat them as the holders of such knowledge if it is confined to the community . It is the notion of collective enjoy ment of property by the members of the community that is refl ec ted in these norms. The concern is to recogni ze it, take measures to ensure that communities are in vo lved in the . preservation and development or it and proper benefits return to them in case or commercial exploitation by others . But the method o f achieving it is left to individual nations. But there are no uniform norms regarding the protec tion of different types or traditional knowl edge owned by local communities . The reason being that thc international community never had an occasion to look at the protecti on of traditional knowledge in its entirety. The absence of uniform norms led to the setting up o f an Intergovernmental Committee on Intellectual Property and Genetic Resources. Traditional Knowledge and Folklore by WIPO. The document prepared by the WI PO Secretariat identified many issues to be examined by the Committee. The approach seems to be to keep the issues of genetic resources, traditional knowl edge and folklore separate rather than to look at it from a holi stic manner. Thi s seems to promote the commercial interest rather than the human rights of the community behind thi s knowledge base . The nations representing the custodians of the traditional knowl edge base need to intervene to ensure that the new international norms do not vitiate the genuine interest of the indigenous and local communities .

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T raditional knowledge is generall y associated w ith biol ogical resources and is in variabl y an intangible componen t of such a biologica l resource . Traditi onal knowledge has the potential o f being translated into commercial benefits by prov iding leads/c lue, ror development o f use ful practi ces and processes for the benefit of mankind . The valu ah le leads/c lues provided by TK save ti me, money and in ves tment of modern biot ech and other industri es into any research ;lIld product development. Logica ll y, therefore. a s h ~lre

o f such benefit s should accrue to the creators and/or holders o f such tracliti on;i1 knowledge. Some coun tri es have spec ific legi slati on protec ting thi s kind of knowledge w hile SO IllC other cou ntri es k eltheir ex isting IPR reg ime protects such know ledge. As of now, India does not have a spec ifi c slIi g(,lIeris leg islation to protec t such TK and folklnre but is in th e process o f devel oping such a leg islation. However, in certain areas like ro lk dances and performances, th e performers o f ro lklore get certain protection under our ex isting copyri ght law and by impli cati on incidental protection is ex tended to such folklores and rolk dances. But to get substanti ve and real benefit for the traditi ona l knowledge holders. the promulgati on o f an appropri ate SlIi g(,lI (' ris system or leg islati on could be very helpful. India is, therdore , taking appropri ate steps towards rraming a i:l\v in thi s regard.

The deliberati ons or the rirst two sess ions of WIPO's Intergovernment al CO lllm ittee were quite use fu l and achieved considerable progress in identiry ing the issues that needed to he addressee! in the area or Intell ec tu al Property Rights ( IPRs) relat ing to tradit iun;i1 know ledge and ro lk lore. access to geneti c resources and benefit sharing. The issue llr intell ec tu al propert y pro tec ti on to be prov ided in areas, which have so rar remained outside th e conventiona l sys tems or intell ec tu al property protecti on. was also given adequate attention. The Third Sess ion or the Intergovernmental Committee did dwell on mode l contractu al ag reements, elec troni c database for geneti c resources. in ve ntori e~ or ex isting databases or Traditional Know ledge, poss ible clements or SlIi g(,lI eris systelll ror the protection or Traditi onal Know ledge and on the experi ences of indi vidual nati ons in the area or Traditional Kn owledge and Fo lk lore. What remains to be done is the formulation of a legal framework at the internati onal level. We hope the nex t Intergovel'llmental Seminar w ill make further progress in thi s regard .

I would now elwe ll upon various deve lopments that have taken place in our cou ntry in the recent past in the areas or patents, biologica l di versity , pl;lnt geneti c resources. traditi onal knowledge and ro lklore.

India is one o f the twelve mega-biod i versity countri es o f the world . With onl y 2.4 per ce nt of the land area, India already accounts for 7 per cent to R per cent o f th e recorded spec ies of the wor lel. Thi s number is based on the survey of 65 to 70 per ce nt of the total geographical area of the country. Over 47,000 spec ies of plants and X I ,000 spec ies of animals have been recorded by the Botanica l Survey of Indi a and the Zoo log ica l Survey or India, respecti ve ly. It is ant icipated that some of the remai ni ng areas (e.g., Himalayan reg ion, A&N Islands) may be far ri cher in biologica l diversity than most of the areas already surveyed. India is also one of the twelve primary centres of ori g in of culti vated

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plants and is ri ch in agricultural bi odi versity. India is equall y ri ch in traditi onal and indigenous knowledge, both coded and informa l.

In th e recent past. there have been several cases of bio-piracy of TK from Indi a. First it was the patent on wound-hea ling properti es o f IIO/di (turmeri c): now patents have been obtain ed in other countri es on hypog lycaemic properti es of "are/a (b itter gourd), brinjal. etc. An important critici sm in thi s contex t relates 10 foreigners obtaining patents based on Indian biologica l material s without acknowledging the source of their knowledge or sharing the benefits. There is also the view that the TRIPS Agreement is aiding the exp lo itation of biodiversity by privatizing biodi versity expressed in li re rorms and know ledge.

Recentl y amended patent law of ours contains provisions for mandatory di scl osure or source and geographica l ori gin or the biological materi al used in the in vention ,vhi le appl y ing for patents in Indi a. Prov isions have also been incorporated to include non­disc losure or w rongful disclosure or the same as grounds for opposition and for revocation of the patents. if granted. To protect traditi onal know ledge from bei ng patented, prov isions have al so been incorporated in the law to include anticipation of invention by ava ilable local knowledge, including oral knowledge. as one or th e grounds ror oppos ition as also for revocati on o f patent. In or(;er to further strengthen these provi sions, a new prov ision has been addcd to exc lude innovati ons whi ch arc basica ll y traditional know ledge or aggregation or dupli ca ti on or known properties or traditiona ll y known componen t or componen ts rrom being patented.

India is a party to the Convent ion on Biological Di versity (CB D). which came into rorce in Decembcr 1993 . The CBD offers opportuniti es to India to rea li zc the benefit or these resources. The Bill on Biological Di versit y is already passed in the Winter Sess ion of the Parliament in December 2002. The leg islati on addresses the basic conce rn s or access to. collec ti on and utili za ti on of biological resources and knowledge by foreignCl"s and sharing of benefits ari sing out of such access. The legislation also provides for a National A uthor ity. which w ill grant approvals for access, subject to conditi ons. which ensure equ i tab le sharing of benefits. The main intent of thi s leg islati on is to protec t India's biodivers ity and assoc iated knowledge against their usc by indi v iduals/organi za ti on w ithout sharing the benefit s arising out of such use and also to check bio-piracy. T he leg isl at ion provides for a federa l management st ructu re with the Nati onal Biodi versit y Authority (N RA) at the apex and Biodiversity Management CO lllmittees (BMCs) at Inca l com munit y leve l. The BMC and the NBA is required to consult BMC in dec ision relating to the use of biological resources/related know ledge within their juri sd iction . T he leg islati on also provides for promotion of conserva ti on. sustainab le usc and documentati on o f biodiversity. Prior approval o f NBA would be required for app ly ing for any form of IPR within or ou tside Indi a for an in vention based on research or in formati on on biological resource obta inecl from Inelia.

The Indi an legislation for the Protection of Plant Varieties and Farmers' Ri ghts Ac t 200 I al so acknowledges th at t he conservati on, exploration , co llecti on, characteri za ti on.

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eva luation of plant geneti c resources ror food and agri cul ture are essenti al to meet the goa ls o f nati ona l food and nutriti ona l security as also for sustainabl e development or agri culture for the present and future generati ons. It also acknowledges that the plant genetic resources fo r food and agricu lture are the raw materia l indi spensab le for crop geneti c improvemen t. The concept of effecti ve benefi t shari ng arrangement between the provider and the rec ipient of the plant geneti c resources forms an integral part o f our Act. The amount o f benefit sharing will be based on the extent and nature of the use of genetic material of th e claimant in the development of the vari ety and also the commercial usc and sale in the market o f the variety. To make thi s meaningfu l, mandatory disc losure of the geographi cal locat ion from where the geneti c material has been taken and informati on relating to the contributi on, if any , of the farm ing community invol vi ng such vari ety . has been made. The protection provided to a plant variety bred by a breeder can be cance lled i f there is an om ission or wrongful di sc losure of such information.

The Geographical Indication of Goods (Registration and Protection) Act. 1999 passed by Parliament is another step taken by Indi a. The Act primarily intends to prot ct the va luable geographi ca l indica ti ons of our country. The protection under the Ac t is available on ly to the geographical indication reg istered under the Ac t and to Ihe au thori zed users. The Act permits any association of persons or producers or any organizati on or authority es tablished by law representing the interes t of the producers or goods to reg ister a geographi ca l indication. It may be possible to argue th at the holders o f the traditional know ledge in goods produced and so ld using geographi ca l indicat ion can reg ister and protect their traditional knowledge under this law.

Various suggesti ons have been advanced in India to ex tend protecti on to knowledge. innovati ons and practices. These include: (i) documentation o f TK; (ii ) registration and innovati on patent system: and (iii) development o f a s!li gCll c ris system. It is sometimes bel ieved that proper documentation of associated TK could help in check i ng bio-pi racy . Documentation could be a double-edged sword . It IS assumed that if the material/knowledge is documented, it can be made available to patent exam iners the world over so that prior art in the case of in ventions based on sueh material s/k now ledge are/i s read il y available to them. It is also hoped th at such documentation would facilitate tracing o f indigenous communiti es with whom benefits o f commerciali zati on or such material s/know ledge has to be shared.

On the other hand, others believe tha t documentation may faci litate bio-piracy. They argue that a trade secret of an indigenous community would be maintained only unti I it is closely held by the com munity - as soon as it is put on paper, it wi ll become accessib le 10

pirates and would be purloined . Th is dilemma is the subject of discussions in national and international debates on benefit sharing. Some suggest the empowerment o f the indigenous communit ies themselves so that they are ab le to get legal protect ion for closely held knowledge without the in vo lvement of outside agencies. Neverthe less, documentation has one clear benefit. It wou ld check patents based on TK in the publ ic domain that are today difficult to prevent due to lack of avai labil ity of information with

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patent exami ners. I n pursuance thereo f. we havc documented Tradi tional K nowledgc in the form of a digital library.

Documen tation or tradi ti ona l knowl edge is also ack nowledged as a means or gi ving clue recognilion to th e traditional knowledge holders. Thi s parti cular aspect or documenting formulations in the Ayurved ic system of med ici ne in India in thc shape or T raditional Knowledge Digital Li brary (TKDL) is already on and "ve appreciate the cfrorts of WIPO to arrange for a presentati on in thi s regard as al so on the top ic of Hea lth Heritage Data Base for the benefit of the members attending the las t Intergovernmental Committee meeting in Geneva in June 2002. The scope o f thc TKDL work relates to the transcripti on o f 35,000 rormulati ons used in Ayurvedic systcm or med icines. These detai Is are bei ng converted into Patent App l ica ti on Format and w i II i ncl ude desc ri ption. meth od or prcparati on, claim and the usage or the bibliography. The retri eva l wi ll be based on the T rad itional Know ledge Resource C lassificati on (TKRC) and Internati ona l Patent C1assirication ( IPC). T he orig inal Sanskrit tex t is tran slated and prescnted in French, German , Eng li sh, Japancse, Span ish and Hindi through unicode technology that is language independent. T he total number or pages in each language wi ll be I AO.OOO. Thc loca l names o f plants are converted into botanical names and Ayurvedic descriptions or di seases into modern medica l terminology. The TKDL w ill eventuall y cover other indigenous system li ke Unani . Siddha, Naturopathy, fo lklore etc. The documentation or such traditiona l knowledge in a digitized rormat would, it is hoped. pre ve nt patenting or knowl edge which is alrcady in the publi c domain. Such digital database would enab lc Patent Ofri ces al l over the world to se,irch and examine any preva lent use/prior art . and th ereby prevcnt grant or such patents and bio-piracy. Also in India. preparati on or villagc-wi se Commu nity Biodiversity Reg isters (CB Rs) fo r documenting all knowledge. innovations and practices has been undertaken in a rew Statcs.

Documentati on or TK is one mcans of gi ving recognition to knowl edgc holdcrs. But mcre documentation may not cnab lc sharing o f benerits ari sing out or the use of such knowl edge, unless it is backed by some kind of mechani sms ror protccting the knowledgc. This necess itates the need for cxtend ing some kind or protcction to TK. Documentat ion of TK may only serve a defensive purpose. namely that or preventi ng the patenting or thi s knowl ecige in the form in wh ich it ex ists. Documentation /)(' r Sr!,

however. wi ll not facilitate benefi t sharing with the holders or T K . With all thesc efforts some ex pcrts still suggest that a SlIi gel/ai.1 sys tem separate

from the ex isting IPR system should be designed to protect the tradi ti onal knowledge or the local and indigenous com muniti cs of India. Howevcr, the parameters, elements and modalities of a SlIi gel/ eris system are still bcing workcd out. The Departmen t or Secondary and Higher Education of Governmcnt of India has set up a Core Group to look into the matter and some model leg islation is under serious consideration.

In order to co llate the v iews of other bio-resources and TK rich countries, an international semi nar was convened wi th the parti cipation or representati ves of Brazi I. Cambod ia, Ch i le, China, Colombia, Cuba, Egypt, Kenya, Peru , Philippines, Sri Lanka.

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T hail and. Ven ezuela and India at New Delhi during 3-5 April , 2002 . A number or internati onal ex perts and intergovern mental organi zati ons expressed their views and covered issues including the commerciali zation of TK, exchange of national experi ences o f systems for protec tion o f TK including sui gcncris systems and the internati onal dimension o f protecti on of'TK. Participants noted that trad itional and loca l communiti es hi stori ca ll y deve loped customary and other forms of protec ti on over TK which enabled its preservati on and growth . Loss o f' bio-d iversity and its assoc iated TK is in part due to increasing globa li zati on. It is also in part due to mis-appropriation or TK inter (l lio through improper granting of patents and lack of rewards to TK holders in their patent system. To offset such impacts o f g lobali zati on slli gCll cris systems at the national levc l to protect TK and reward to TK holders were suggested. While these do provide the means o f' protec ti on and growth of' TK w ithin nati onal j urisdiction, th e participants fe lt tha t such national sys tems by themselves would not be adequate to full y protec t and preserve th e TK . For example, the ab ility of a patent o ffi ce in a nati onal juri sd icti on to prevent bi o-piracy as well as to install informed consent mechani sm to ensure reward to TK holders, does not ipso fac to, lead to similar acti on on the patent app li cati on in other countri es. The need, therefore, was expressed for an international Ji'Ol llcwork for protec ting the TK . It was relt that the ex isting forms of IPR protecti on reg imes may not sufficientl y recogni ze the ri ghts o f' T K holders. Sirn ilarl y , benefit sharing mechani sm installed through nati onal legis lation would need to be recogni zed in user countries.

The common thread running in all these diffe rent areas of acti vity is tha t owners of TK should be adequately compensated and rewarded for their contribu tions. We fee l that the progress and experi ences in this area at the nati ona l level should be rev iewed regularl y so th at a suitable internati onal framework is set in place in the near future.

Whil e we acknowledge the tremendous contri butions or all th e ex isting agreements at the internati onal leve l. we feel th at the WIPO is in a far more advantageous position to synthes ize the vari ous concepts and mould them into an I PR framework. To state that the entire issue is very comp lex and has economic imp li cati ons is to state the obv ious. Whereas the deve lopi ng countries, by and large, have possessed ri ch biolog ica l diversit y. plant geneti c resources . associated trad itional know ledge and ro lk lore, the developed countri es have the technologica l resources to exploit these resource commcrciall y. The iss ue then becomes one o f sharing the benefits accruing out or such exp loitation. The common good of mankind should ac t as the catal ys t for achiev ing an equitab le distributi on of benefits across the world . In thi s endeavour we fee l confident that WIPO is the most idea l and neutral platform to harmon ize the very compl ex issues to ensure justice for all . We feel very encouraged by the contributions or all the members as also o f the WIPO in unlock ing the hidden treasure and bringing forth on to this plat fo rm for the eventual common well being of mankind Fi nall y, I must record my deep sense of apprec iation and gratitude for all the determined efforts and hard work put in by the Cochin Un iversity, WIPO and the Ministry in bringing together everyone on board here at thi s wonderful locati on for the Conference.