Traditional Knowledge under the aegis of Intellectual Property Right

The Author, Jaanvi Rathi is 5th year Law Student at Vivekanada Institute of Professional Studies, GGSIP University, New Delhi.

Traditional Knowledge (TK)

The term “traditional knowledge” also known as folk/local knowledge, refers to a living body of knowledge that is developed, preserved and passed on from generation to generation within a community, thus becoming the identity, culturally or spiritually, of the said community. The World Intellectual Property Organization (WIPO) refers traditional knowledge as “indigenous cultural and intellectual property”, “indigenous heritage” and “customary heritage rights”[1].

In other words, it refers to the developments and innovations of indigenous and native communities and is often transmitted orally. It tends to be practical in nature and collectively owned by a community. These innovations further take the form of stories, folklore, cultural beliefs and values, community laws, music and songs, including the fields of agriculture, fisheries, species, health, forestry and the environment.

One of the most essential elements of traditional knowledge is that it must have ancient roots. But what makes knowledge or cultural expressions “traditional” is not their antiquity but the fact they are presently an essential and dynamic part of the lives of many communities, being developed, sustained with a sense of belongingness to the community.

Traditional Cultural Expressions (TCEs)

In the essence, the term “traditional cultural expressions” finds its meaning similar to the term “traditional knowledge”, however, the World Intellectual Property Organization (WIPO) lays emphasis on distinguishing the two, for the reason that a different set of policy questions emerges in their specific cases and thus different legal tools are likely to be applied for their protection.

Succinctly, TCEs refers to the structural form in which traditional culture is expressed. They are noticed to be an essential and integral part of the cultural and social beliefs and values of the indigenous community forming an integral part of their heritage. They are also handed down from one generation to another but are also constantly evolving and developing in the environment by their holders. TCEs can be both tangible and intangible. Usually, it has been seen to be a combination of the two, as with any material tangible object there will inevitably be a symbolic or religious element present making it difficult for the two to be separated. For example, a painting (a tangible expression) that expresses elements of a traditional and cultural story (an intangible expression).

Holders of Traditional Knowledge and Traditional Cultural Expressions

One of the main issue and ongoing debate is over the identity of the owners or custodians of TK and TCEs. They are generally originated and held collectively by the communities rather than individuals, as it is commonly agreed that the said protection should principally benefit the holders i.e. the indigenous people and local communities that preserve, develop and maintain the TK/TCE with them and seek to pass them on between generations. In some instances, it could be possible that recognition may be given to particular individuals within a community such as certain traditional healers or individual farmers working within the community, essential making them the beneficiaries. Ordinarily, this recognition arises through customary understandings, policies and laws.

Role of IPR in protecting TK and TCEs

Traditional Knowledge and Traditional Cultural Expressions are often vulnerable to acts of misappropriation and exploitation as they can be both valuable cultural assets as well as economic assets which can be traded for income generation purposes and further resulting in economic development. Further they may even serve as an inspiration to other creators who can modify them into new innovations, thereby accruing no benefits to the communities of origin. For these reasons it has been identified and seen necessary to secure TK and TCEs through certain forms of legal protection.

There are two paradigms that have been employed under Intellectual Property Protection:

1. Positive Protection – This approach of the IP system is designed and framed in such a way that it empowers the holders, if they wish, to acquire IP rights in their TK and TCE. Positive protection, succinctly, is the granting of rights that enables the communities and indigenous people to promote their TK/TCEs, control its uses, prevent unwanted uses by third parties and benefit from its commercial exploitation.
2. Defensive Protection – This approach of the IP system aims to stop/prevent people who do not belong to the community i.e., third parties from acquiring IP rights over traditional knowledge. This strategy might also be used to safeguard sacred traditional and cultural manifestations, such as names, symbols or words, from being registered as trademarks.

Meaning thereby that a variety of IP tools can be used to protect TK and TCEs. On the one hand, positive protection means making use of these tools for their own purposes and on the other hand, defensive protection means preventing anybody else from having access to these tools, when it goes against the interest of the holders of TK and TCEs.

“Protection” can have different meanings, but WIPO summarizes it as the form of protection of IP law, values and principles to prevent misuse, ill-treatment, copying or any other kind of illegal activity or exploitation.

However, the international legal system has not yet surfaced with an instrument for specific and customized protection of such traditional or indigenous knowledge and even though some national laws do accord protection, this cannot be held sufficient for other countries as well.

Protection Under Intellectual Property

The IP system aims to protect and prevent innovations, creations, artistic works etc. from exploitation, unauthorized use, commercial use and copying, but these conventional IP rights are vast and diverse in their nature and are thus governed by a set of rules such as Patent law, Copyright law etc. Therefore no “one-size-fits-all” solution exists to suit all the needs and requirements of the holders seeking protection. WIPO has been emphasising on the need of developing new forms of IP protection for TK and TCEs as their diversity requires flexibility in fashioning the said international instrument. On the other hand, for the time being such traditional forms of innovation can be protected, to some degree, by the existing IP laws and legal systems. Certain options for protection, outside the purview of IP, are also available that duly exist in our legal system, such as trade practices, consumer protection and labelling laws, the use of contracts, customary and indigenous laws and protocols, cultural heritage preservation etc. further including civil liability and common law remedies, such as unjust enrichment, rights of privacy, blasphemy, as well as criminal law.

Existing Conventional IP System to Protect TK and TCEs

Various holders find the existing IP laws and legal system and the rights therein useful and strategic. As earlier discussed, “positive” protection of TK and TCEs entails the active exercise of IP rights in TK and TCE subject matter whereas “defensive” protection refers to strategies aimed at ensuring that third parties do not gain illegitimate IP rights over TK and TCE subject matter (for example, patenting an age-old remedy).

Thus, the existing system includes protection under copyright and related rights, certification trademarks, collective marks, graphical indications (GIs) and labels of authenticity.

1. Copyright and related rights

The traditional and original forms of innovations and adaptations may be copyrightable to some extent hence indigenous holders can seek protection against such reproduction, broadcasting, adaptation and other forms of communication to the public.

The existing system of copyright can further provide protection against insulting, discrediting, offensive, demeaning a particular use of a work as the goal is to prevent such exploitation and misuse and rather promote respect for cultural and spiritual values.

2. Distinctive signs, designs and unfair competition

Protection under the laws of collective marks, GIs, and industrial designs, as well as unfair competition law may often be direct or indirect in nature. These branches of IP legal system aim at the protection of established reputation and honour, uniqueness and goodwill, such as may be enjoyed by an indigenous community in the production of their said innovations such as handicrafts, artworks and other traditional products. Therefore, a few of these indigenous and traditional names, signs and symbols particularly associated with TK can be protected as trademarks and hence be safeguarded against the third parties’ claims.

One of the issues that often pertains is the regarding the use of misleading and false claims as to origin/authenticity and quality of a product. In other words, an indigenous art may carry a label falsely stating that it is “authentic” or originates from a particular community and in order to prevent this from happening certification marks can be used. Unfair competition law, as well as trade practices and labelling laws, are also helpful in this regard. Action can be taken against false or misleading claims regarding the authenticity of a product and its origins with a particular indigenous community. Furthermore, GIs can be used with respect to tangible products such as handicrafts that have qualities or characteristics derived from their geographical origin. The design, appearance and visual attributes of textiles, carvings, sculptures, pottery, woodwork, metalwork, jewellery, basket weaving and other handicraft could be protected as industrial designs.

3. Patent

India’s Patent Act clarifies the status of TK within the legal system of patent, enunciating that TK is a form of information that has already been in existence, written or unwritten, passed on from generation to generation by various communities. The Act comprehensibly states that:

“an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.”[2]

This section clearly mentions that TK shall not be considered as an invention or an innovative idea within the meaning of the said Act. The rationale behind this being that once documented the TK attains the attribute of prior art. The term “prior art” refers to the entire body of knowledge which is available to the public before the date of filing of an application for certain industry property titles, essentially patents, utility models and industrial designs. If traditional knowledge related inventions on comparison with relevant prior art do not fulfil the requirements of novelty and inventive step, then they are duly granted patents. This identification of prior art constitutes a cornerstone for the substantive examination of applications for these property titles. Therefore, a documented TK on attaining the features of prior art enters the public domain, thereby making it difficult to establish any limitation or prevention of commercial use of such knowledge.

The recent amendment[3] in India’s patent law states provisions for mandatory disclosure which was introduced to complement the Biological Diversity Act, 2002, which aims to protect absolute rights over genetic/natural resources and requires prior authorization and approval from the NBA[4] before applying for a patent for inventions that manoeuvre biological material from India. The provision mandates that while applying for patents in India:

“disclose the source and geographical origin of the biological material in the specification, when used in the invention.”[5]

The patents laws come into picture with respect to undocumented TK which are held by various indigenous communities in order to prevent organizations which are trying to get ownership over such TK in order to exploit the same for their own commercial gains. From the technical viewpoint of the legal system undocumented TK can be proven to be a novel and unconventional invention. With the intent to provide a solution to this problem, the Indian Patent Office issued a circular[6] stating that the patents which are pending within the TK domain will be made available online and any objection with regard to the same can be made at the said Patent Office.

The Patent Cooperation Treaty (PCT) is a WIPO-administered treaty for international cooperation in the field of patents duly provides for an international search and examination, which takes into account information resources related to TK, thus increasing the possibility of locating a relevant TK at an early stage in the life of a patent. The provisions[7] under PCT further make it abundantly clear that a simple oral disclosure of TK will not subsist as prior art for an invention said to be derived from a TK.

Summing up, the basic rule is that when people innovate within the traditional framework, they may use the patent legal system to protect and prevent their innovations from exploitation. In other words, inventions derived from TK may benefit from patent protection. Moreover, systems have been put in place to ensure that illegitimate patent and legal rights are not granted to TK based inventions that in reality not a true invention per se.

Traditional Knowledge Digital Library

Traditional Knowledge Digital Library or TKDL was a crucial and paramount initiative taken by the Government of India as an effort taken to revoke the patent on turmeric for its wound healing properties and characteristics by United States Patent and Trademark Office (USPTO) and another patent on neem for its antifungal features granted to European Patent Office (EPO).

In the year 2005, approximately 2000 patents were granted, annually across the world, regarding the Indian medicines. To avoid/prevent this concerning situation, an initiative has been taken to document and publish all the TK, such as ancient texts on Indian medicines, by this e-library, including 5 different foreign languages, namely, English, French, Spanish, Japanese and German. The system of this well-oriented library (TKDL) provides details of traditional as well as scientific knowledge arranged in an organized manner according to the classification of international patents, across the globe.

Challenges faced under the existing IPR System

The current IPR system is unfit and unable to protect traditional knowledge for various reasons. Firstly, IPR legal system currently privatizes ownership held by individuals or corporations and promotes personal monopoly, whereas on the other hand TK/TCEs are often held and owned collectively by a community or communities. The subject of collective ownership rights is still alien to many IPR system all over the world. Secondly, the protection provided under the current IPR system is often time-bound and has to come to an end eventually, whereas TK/TCEs are held perpetually and permanently as being passed from generation to generation. Thirdly, the IPR system has always adopted a restricted approach regarding the interpretation of invention which must satisfy certain conditions of novelty, industrial application, inventive step etc, whereas TK, by its very nature, is incremental, informal and occurs over a period of time.

Time and again policy debates have underlined the limitations of existing IP laws and the entire legal system that revolves around it in meeting all the requirements and expectations of the holders of TK and TCEs. It had repeatedly failed to discover a delicate balance between protecting the rights of indigenous communities and the benefits arising out of commercialization of developments over the subject matter of such TK. Certain adaptations or modifications to the current system of IPR to better accommodate the interest and needs of the TK/TCEs holders, are the need of the hour. Thus, making it clear that there being a general agreement within the international community that there is dire need to recognize and safeguard traditional knowledge and look at the protection of TK/TCE in its entirety.

Sui Generis Systems and Protection

It is abundantly clear that the existing and conventional IP systems not sufficient to cater to the unique character of TK/TCEs since the current system has its own downside and loopholes. When the said two worlds of TK and IPR overlap with each other, there appears a need to find a path that strikes a balance between the two. This striking balance can thus be achieved through Sui Generis, or alternative law system.

For various reasons regarding the non-fulfilment of the needs of TK/TCEs holders and the inability to protect traditional knowledge in is entirety, has thus prompted many countries and regions to develop their own distinct sui generis system, or a specific and special system for protecting TK/TCEs. As the term “sui generis” suggests, meaning “of its own kind”, it is a set of specialized measures and a legal framework aimed at exclusively protecting and addressing the characteristic of specific subject matter. What fabricates an IP system into a sui generis model is the moulding and constructing of it features to essentially accommodate special characteristics and specific policy requirements. Such specialised sui generis instrument shall provide a tailor-made legal framework for the protection of traditional knowledge, enforcement of the rights of indigenous communities thereby preventing misuse and exploitation of TK and accruing all the benefits to the said community.

In addition to the present TKDL system, India can establish a more comprehensive approach, firstly to generate awareness and understanding among people who are still completely unaware or have very limited knowledge on Intellectual Property Rights as well as the term 'traditional knowledge' and the legal rights attached with it.

Yoga and IPR

The Bikram Yoga or Hot Yoga is an infamous case regarding the issue of copyrighting yoga. Bikram Yoga is a sequence if 26 Yoga asanas/postures and 2 breathing exercises carried out and conducted in room where the temperature is increased to 45 degrees Celsius in order to work every muscle of the body. Bikram Yoga was founded by Bikram Choudhary who is famous all over the world especially in the USA.

The legal battle began in 2011, when he filed 3 lawsuits accusing people of copyright infringement, contending that Hot Yoga or Bikram Yoga is his property and anyone using the asanas or propagating Hot Yoga would mean that his copyright is being infringed. Initially the lower court took Bikram Choudhary’s side and stated that there exists a copyright of Bikram Yoga. But in 2012 the US Copyright Office stated in its review that as a matter of law, yoga asanas and sequences are not entitled to protection under the copyright law. This was followed by the judgement of the US Federal Court wherein the previous decision was overruled thereby taking away the copyright and further stated that this yoga sequence is not a creative compilation of exercises and is therefore not copyrightable.

The Court further laid emphasis on the fact that a yoga pose or sequence is akin to an “idea” or a fact, and you cannot copyright an idea or a fact. An “expression” of an idea can certainly be copyrighted, the reason why Bikram Choudhury’s 1979 book[8] about his sequence duly has protection under the copyright law, but he does not have a protection under the copyright law on the sequence of poses itself, and therefore cannot prevent others from teaching the sequence or any part of the said sequence.

Choudhury being distressed from the above rulings appealed[9] wherein the Ninth Circuit Court of Appeals in California affirmed a previous ruling by a federal district court that Bikram Choudhury’s sequence of 26 yoga poses and two breathing exercises is an unprotectible idea and also ineligible for copyright protection as a compilation or choreographic work. On behalf of the three-judge panel, Judge Kim McLane Wardlaw opined that “Because copyright protection is limited to the expression of ideas, and does not extend to the ideas themselves, the Bikram Yoga Sequence is not a proper subject of copyright protection”.

Conclusion

The new millennium and this ever-changing world poses significant threats and challenges to tackle the problem of protecting traditional knowledge and culture of the local and indigenous communities under the umbrella of intellectual property rights and set new international legal standard for the same. Treating traditional knowledge in the public domain gave it a free pass to be exploited without showing any respect or concern towards the indigenous communities who is time and again making efforts to prevent and promote it. The significance and usefulness of traditional knowledge as a part of our new modern commercial world, particularly in biotechnology, has been clearly demonstrated time and again.

Consequently, implicating that it is the need of the hour to tackle the issues of intellectual property protection which have been widened due to the constant and inevitable technological developments in our world, wherein protection of the heritage of indigenous people and local communities seem to be one of the most essential and complicated issue. It is true that the need to protect traditional knowledge and culture has captured the attention of the international community and since then many measures have been taken to safeguard the same, but the standard structure of the national governments remains the same, causing serious negligence towards the protection of traditional knowledge and its holders as well as hindering the development and growth of modern technology ghastly.

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