GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND TRADITIONAL CULTURAL EXPRESSIONS
PUBLISHED ON 18.10.2021 BY MS. APARNA JAIN, MS. HARINDER NARVAN, MS. AASHRIKA AHUJA AND MS. NEHA CHAMOLI
There are many traditional forms of Intellectual Property rights in creative and innovative products as well as processes that indigenous people, local communities and governments seek protection for. These include genetic resources, traditional knowledge and traditional cultural expressions. These traditional form of assets refer to the totality of all economic, cultural and religious knowledge and practices that reflect the identity of a community. It is considered the property of the entire community, and do not belong to any single individual within the community. For example – a traditional pharmaceutical remedy, an indigenous folk song or any invention derived from genetic resources. Traditional knowledge refers to traditional based literacy, artistic, scientific, medicinal, marks, symbols design etc. Example of traditional knowledge includes knowledge about the use of specific plants thereof, identification of medicinal properties in plant and harvesting practices. Traditional knowledge that is particularly associated with biodiversity and genetic resources (GRs), is also considered as an important step in achieving sustainable development. This knowledge is transmitted from one generation to another. Genetic resources are defined in the Convention on Biological Diversity (CBD) and refer to parts of biological materials that contain genetic information of value which are capable of reproducing or being reproduced. For eg:- material of plant, animal, or microbial origin, such as medicinal plants, agricultural crops and animal breeds. At Knowledgentia Consultants, which is the best law firm in India for Global IPR protection, we assist our clients through solutions for patenting and protecting their traditional culture, identity and heritage through various means.
The main international document that protects these IP assets is the United Nations Declaration on the Rights of Indigenous Peoples. This Declaration recognizes that indigenous people are equal to everyone and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity. Article 31 of this Declaration further provides that indigenous people have the right to maintain, control, protect and develop their Intellectual Property over cultural heritage, traditional knowledge and traditional cultural expressions. There have been constant debates in the international arena specifically over the identity of owners, bearers and custodians of these IP assets but there are various reasons that are crucial to according protection to these forms of IP. The significance of the same is as below :-
- Traditional knowledge is deep rooted in many countries of the world, this knowledge is vital for their well- being and for sustainable development, besides monitoring their cultural liveliness.
- With respect to health care system WHO (world health organization), has state that 80% of the world population depends on traditional medicine for its primary health care and traditional knowledge is indispensable for its survival.
- Essential for maintenance of the genetic resources for continued survival of the community. The community have adopted the indigenous knowledge system to conserve and utilize the biological diversity of their surroundings.
- The recognition of the creativity of the traditional communities is essential for the conservation of biodiversity as well as conservation of intellectual diversity.
PROTECTING TRADITIONAL KNOWLEDGE, TRADITIONAL CULTURE EXPRESSION AND GENETIC RESOURCE
The main objective of protection is:-
- To ensure that innovation and creativity embodied in traditional knowledge, traditional cultural expressions is not wrongly used.
- To improve the livelihoods of the ITK holders and communities
- To benefit national economy
- To prevent bio piracy
- To conserve the biodiversity
- Wealth creation, trading opportunities and sustainable economic development, including promotion of equitable benefit sharing from use of TK/TCEs;
- Safeguarding of the cultural identity and values of communities;
- Empowerment of TK/TCEs holders
IP protection entails recognizing and exercising exclusive rights, i.e., excluding others from carrying out certain acts. IP protection can also include non-proprietary forms of protection like moral rights, equitable compensation schemes and protection against unfair competition. Despite various international agreements aimed at balancing the intellectual property protection, there are differences among national laws, and especially those regarding patenting for example USA extended patent protection to genetically engineered organisms but many other countries oppose to extending the patent to such subject matter. In addition different countries have different conditions for disclosure of information on this invention. These differences in national application of intellectual property law are at center of much on debate of intellectual property protection, and more specifically the extent to which TRIPS broaden and harmonizing the law.
HUMAN RIGHTS PROTECTION OF TRADITIONAL KNOWLEDGE
Two protective paradigms have been employed to protect traditional knowledge using intellectual property tools.
- The first protective paradigm used to prevent others from using intellectual property rights over traditional knowledge. For example, creation of traditional knowledge databases to give evidence regarding traditional knowledge as prior art to prevent perceived abuses such as bio piracy. These databases help in securing rights over traditional knowledge since traditional knowledge discloses to public hence it provides some protection. However different communities have their own laws to regulate the use of TK.
- The second protective paradigm (often called “positive protection”) is achieved by either using the existing laws or using legislative means to enact new sui generis laws. Some have argued that some countries like the United States may face constitutional problems with granting perpetual rights to these communities.
In order to protect traditional knowledge many other countries are using existing laws example, Environmental management act and other acts related to TK. However, many countries are still undecided and have argued that the form of protection should refer to collective human rights to protect their distinct identities; religious and cultural heritage.
India does not have a sui generis law to protect TCEs and folklore and relies on existing IP laws for protection of the same. This sole dependence on IP laws has been criticised because of inherent conflicts between the nature of the IP and traditional cultural expressions. There are no provisions like Prior Informed Consent, as is provided in Biodiversity Act 2002 for accessing biological resources. Further there is also a lack of research and literature at national level. A documented TK attains the feature and character of prior art and because it is available in public domain, there cannot be any limitation and prevention of commercial use of such knowledge. Section 3 (p) of the Patents Act, clearly mentions that traditional knowledge shall not be considered as an invention or an innovative idea. To avoid and prevent granting of patent to traditional knowledge in India, an initiative has been taken to document and publish all the TK by an e-library and such library is called as Traditional Knowledge Digital Library (TKDL). TKDL provides with details of scientific and traditional knowledge arranged in a manner according to the classification of international patents. Protection of traditional knowledge, genetic resources and Traditional Cultural Expressions can also be used to conserve the environment and promote sustainable agriculture and food security. That is why it becomes essential to appropriately recognize and provide means to protect these forms of IP assets. At Knowledgentia Consultants, we support many TCE owners to rely on the GI Act to protect products of their labour, particularly in case of handlooms and handicrafts. With the trademark, copyright and patent legislations we have enabled many of our clients to preserve and protect their repository of art forms and folklore.
What we need the most today is participation from different stakeholders and discover ways to prevent conflict of interest between rightful owners and users by using existing legislations. Knowledgentia Consultants has earned a name as one of the most client focused trademark and brand registration firm in India. Providing best copyright registration services in India and having a team of top most patent consultants in India, we are you one-stop solution for all kinds of legal, compliance and supplemental matters. In case of any query regarding this matter you may email us at firstname.lastname@example.org or visit our website –knowledgentia.com.