Dr. Lakshlata Prajapati
Assistant Professor, Faculty member of Law Department
MJPRU,Bareilly
Email id –latalaksh1979@gamil.com
Co. Author Adv. Manisha Mall
Email id- mallmanisha47@gamil.com
Abstract
The ‘Traditional knowledge and Cultural heritage are crucial components for the indigenous communities, identities and livelihoods. The exploitation of these two are very prominent since the inception of the modernisation of nation and world. This paper will analyse the legal framework governing the traditional knowledge and cultural heritage. I used to mention, what are the ethical values and legal existence with the existing challenges among the society and the country also.the main issue regarding the protection of these two are ; Inadequacy of legal framework , cultural exploitation and ethical consideration. Which simply means that these two are used by unauthorised identities with legal enforcement due to incapacity of laws and there are less ethical consideration about issues of ownership and control over it.The key issue regarding facing the challenges of addressing this two terminology is Development of customised legal framework, community led conservation and education & awareness. By adopting a holistic approach that addresses the legal,ethical and cultural dimension of traditional knowledge and cultural heritage,we can work towards preserving the cultural diversity and richness of indigenous community.The protection of Traditional Knowledge leads up to the addition of of United Nation Declaration on The Rights of Indigenous Peoples(UNDRIP).Since we all can say that these two are part of intellectual property and I can say that we need a separate legal framework for its acceptance and growth. This may play a crucial role among society as a step towards societal development.This paper plays a vital role in the research of the students and the research scholars who are interested in doing research in this field. In this research paper I collected information from the research paper and a book . So the research methodology I used in this research paper is a doctrinal and quantitative and qualitative mixed method .
Keywords:- Traditional knowledge, cultural heritage, intellectual property,ethical consideration and legal developments, Patent, Copyright,Turmeric,Enola,Medicine, International, Conventions, Biological diversity, philosophical, Geographical Indication, Rights, Property.
Introduction:
India is a diversified country in terms of culture and tradition. In my view we have rich and diverse biological heritage and record plenty of animal species and plant species also. If we talk about agriculture of India then we found that it is a recognized centre of crop varieties and it contains many wild categories of crops also. India has the highest traditional knowledge because of agricultural productivity and biodiversity. It is the traditional knowledge which frames a base of cultural heritage . In India mostly people are involved in agriculture and for them nature is their whole life because it is part of their cultural stability . Traditional knowledge is going to play a crucial role in attaining the goal of sustainable development. If trying to preserve our cultural, social and environmental thoughts then it is the traditional knowledge which is going to play as atool. Traditional Knowledge tries to cover very vital areas like: medicine, agriculture, arts, science as well as spirituality also etc. Traditional knowledge when connected with the intellectual property will become a source to reflect local’s belief and experience at the international and national level. In this paper I am going to explain that traditional knowledge and cultural heritage needs to be protected legally and what measures have been used by the government and world to protect it by stating their ethical value.
Interpretation :
- Traditional knowledge: we can defined the term ‘Traditional Knowledge’ as , “ Traditional knowledge relates to local and indigenous cultures, awareness, inventions, and customs all over the world .Orally passed from generation to generation is traditional knowledge that has been learned through decades of experience and suited to the local culture and environment.”
- Cultural heritage: It can be defined as, “ Cultural heritage encompasses traditional cultural expressions which are the physical artifacts and intangible attributes inherited for past generations.” Cultural heritage includes, musical work, literary work, and all other work which are capable of passed orally from generation to generation.
- Intellectual property: “Intellectual property in its literal sense, means the things which emanate from exercise of the human brain.” Jeremy Phillips
The World Intellectual Property Organisation i.e WIPO which was concluded in the ‘Stockholm’ on july 14, 1967 defines that, “ Intellectual property shall include rights relating to-
i) Literary, artistic and scientific works
ii) Performance of performing artists, phonograms and broadcasts.
iii) Invention in all fields of human endeavor
iv) Scientific discoveries
v) Industrial designs
vi) Trade marks, service mark and commercial names and designations,
vii) Protection against unfair competition .
and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”
Ethical Consideration:
As per Article 27 of Universal Declaration on Human Rights 1948. It was declared that, “ Everyone has the right to the protection of the moral and material interest resulting from scientific, literary or artistic production of which he is author.”
Since we all know that ‘traditional knowledge’ is easily accessible and it can be shared and stolen easily.
There is no separate law to protect this tradition knowledge and cultural heritage.
Reason behind protecting traditional knowledge :
We need to protect tradition because of following reason i.e
i)Equity Consideration
ii)Preservation of traditional knowledge and cultural protection
iii)Conservation concern
iv)Prevention of appropriation by unauthorised parties.
Protection of traditonal knowledge under IPR: It needs to be protected effectively. Giving this kind of security to this is because of recognising the Rights of original owner of such traditional knowledge and refrain third person to have unauthorised acquisition upon traditional knowledge.
This can be protected under IPR by two means which are as follows;
- Positive means: meaning thereby provides an ownership to the real holder of the traditional knowledge.
- Defensive means: This is some like similar to first one it confer a power upon the real owner to refrain third person acquiring it
Legal Protection To The Traditional knowledge : Although we don’t have any separate law to protect it but we can protect it in different part of IPR , which are as follows-
- Patent and traditional knowledge:
In terms of section.3(p) of The Indian Patent Act, 1970 Tradition Knowledge can not get protection because it can be considered as a duplication of the original so it did not fall under the category of invention. So it is not patentable.
Section .10(4)(ii) D of the Patent Act, “ Provides for the disclosure in the specification of the sources and geographical origin of all the sources and geographical origin of all biological material used for the invention.”
An individual may get a patent upon their process or preparation of a product, which may create biological resources and animal plants etc.
The Patent (Amendment) Act, 2005, “ aimed to protect the rights of local communities and it casts an obligation on the patent applicants to disclose the origin of the biological resources involved in their invention.” If the knowledge received from the traditional knowledge then this can be a group of refusal.
- Traditional Knowledge Digital Library (TKDL):
This is the joint effort made by the government,CSIR, and ministry of AYUSH to receive and collect all the information arising out of Traditional Knowledge and make them a single repository. It has two quality simplicity as well as it tries to avail all the knowledge in all possible languages. After creating this we found a number of traditional knowledge patents in other countries, like, USA, USSR, Erope, China etc.
- Copyright and traditional Knowledge:
Copyright is a form of intellectual property which protects a property which is created by an author in literary fields like , Books, music art films and software. This can be protected for a limited period i.e for 70 years . While traditional knowledge refers to knowledge, practices and innovation created by an indigenous people or local people in some field like oral tradition, stories, agricultural practices, medicinal knowledge and artistic expression.Copyright protected under the Copyright Act while traditional knowledge gets protection under custom. World intellectual property organization is also trying to frame an international level. There are so many community rules in every community where people used to protect any traditional knowledge. Traditional knowledge tries to cope with the copyright requirement but it fails to meet with the basic requirement of because of its authorship, there may be a single author or more but it is not fixed it is orally transferred from generation to generation so this is not new in legal terminology. Traditional knowledge can be preserved by the customs and for centuries no limitation in the context of time available. So in conclusion we can say that this can not be protected under copyright.It is sometimes possible to protect the traditional knowledge under traditional copyright.
- Trade and traditional knowledge:
“Trade secrets may be the best type of security of traditional knowledge in the regime of IPR.”
Geographical Indications of Goods (Registration and Prohibition) Act, 1999.Can effectively covered the knowledge which in the form of traditional knowledge, If we talk about the trade mark this work on the principle of differentiability and avoid confusion among the people about the product. So the product manufactured on the basis of the traditional knowledge can also be differentiated on the basis of this mark.
Geographical indication is the most appropriate form of traditional knowledge , which will be valid for 10 years.These may also be used to protect medicinal plants.
- Traditional Knowledge and Plant Varieties Act:
The Plant Varieties Act , talks about protecting the right of plant breeders upon the new varieties which were produced by them and the farmers have the right to protect their breeds,use,trade and transfer it.
Because of the continuous loss of the biological diversity and the habitat in the world, traditional knowledge gets the attention. We are in an era of growing demand for bio- products so the traditional knowledge gets commercialized at international level. When we talk about the traditional knowledge of the farmers in developing their new breeds, the plant varieties Act is considered this concept that without the traditional knowledge no modern breeds could be generated, even if they don’t exist without that knowledge. The PPV&Fr Act legally considers this contribution and it states As per Section.26, “ If a registered plant variety uses traditional knowledge, the community or individual can claim benefits sharing.”There would be National Gene Fund for supporting the conservation and Traditional knowledge holder.
International Union for the Protection of New varieties of plants , “ Promotes plant breeders rights, but does not recognise traditional knowledge rights.” Because of this reason only India is not showing its interest in joining this.
Convention on Biological Diversity (CBD),1992 ,this recognises the role of traditional knowledge in biodiversity conservation. India’s Biological diversity Act 2002 is based on this convention. So we can say that the PPV & FR Act is a progressive law that bridges the gap between modern intellectual property and traditional knowledge. When combined the biodiversity Act with the international principles then it may form a legal framework to protect traditional knowledge in agriculture and plant breeding.
Case Laws on the traditional knowl;edge and cultural heritage:
- Turmeric Case which is also known as Curcuma Longa:
Since we are aware of the turmeric which belongs to the ginger family and yield saffron-colored rhizomes which normally used as a spice in cooking food. But in ancient times with this character it was also used as a medicine because it has some ingredients which can be beneficial in cosmetics and medicines .
But in 1995 it was patented in the US and in India it was requested to US patent office to reexamine the patent. CSIR claims that it has been since thousands of year to treat the wounds of the people which means that its use as medicine can not be treated as nev in nature because it already existed.
This claim was supported by the evidence in Sanskrit text and a research paper published in 1953.
“ Despite an appeal by the parent holders, the USPTO upheld the CSIRobjections and cancelled the patent.The USPTO revoked the patent in 1947, after ascertaining that there was no novelty and finding by innovators as it was for the first time that a patent based on traditional knowledge of a developing country was successfully challenged.”
- Neem Case which is also known as Azadirachta indica:
Since we all know that , Neem is a tree which is normally found in India and south Asia. This tree is a medicinal tree because in India as well as in other countries also has been used as medicine because its oil is used to treat fungal disease and in soap and syrup.
In 1994 it got a patent in the European patent office which was challenged at international level by an NGO and the representative of farmers.
In 199, EPO decided that, “ As per the evidence produced by the applicant all the features of the patent claim were disclosed to the public prior to the patent application and the patent was not considered to involve an inventive step. The patent granted on Neem was revoked by the EPO in May 2000.”
- The Basmati Rice Case :
Here also a patent granted by the US Patent Office was an US Rice breeding firm Rice which was trying to seek monopoly over “basmati rice line and grains”. The Indian government was of the view that it was against the WTO and TRIPs and asked for re-examination of this bAsmati breed.The patent was withdrawn and one more case was filed for misuse of the name ‘basmati’ i.e to be a generic term. This was traditionally grown by India and Pakistan .
In 1998 US Rice federation stated that’ “BAsmati is generic and refers to a type of aromatic rice. In response a collective of US and Indian civil society organizations filed a petition seeking to prevent US-Grown rice from being advertised with the word basmati.” This was rejected by US agriculture and the US federal trade commission. It was concluded that,” There is widespread belief that RiceTec INc took out a patent on basmati only because of a weak, non-existent Indian law and the government’s philosophical attitude that natural products should not be patented.”
- The Enola Bean Case- Mexico
This case was about a patent granted to beans which was similar to Mexican traditional beans. This patent also got withdrawn by saying that it was invalid.This was a remarkable case against biopiracy of agricultural traditional knowledge.
Challenges with traditional knowledge: Some challenges are still available in the society due to which this can not be easily protected.
i) No written proof available to check its authenticity.
ii) This cannot be based upon education.
iii) No sufficient efforts are till today made to protect it.
iv) No legal provision available.
v) This is not exactly covered by one kind of IPR.
Conclusion and Suggestion:
As I have previously discussed about the traditional knowledge and cultural heritage it is clear that there is no exact law behind its protection. Since we are in a developing age, it is quite difficult to remember old things in the form of traditional knowledge. The court also made it clear that it needs to be protected not patented so we need a separate law to save our cultural heritage for the upcoming generation so that the upcoming generation knows the root of our upbringing and our sources to live our life properly. Since the World trade organisation and TRIPS agreement does not have any direct provision to deal with the protection of traditional knowledge but Article. 27(3) (b) can be used by the countries to exclude plants and animals from patent and protect them by a sui generis system of their own. Nagoya Protocol2010 : “ Legally binding treaty under the Convention On Biodiversity , ensures fair and equitable sharing of benefits from use of genetic resources and traditional knowledge.”
References:
2)https://www.ipandlegalfilings.com/traditional-knowledge-in-india-a-rich-tapestry-of-heritage/
3)https://vajiramandravi.com/upsc-exam/traditional-knowledge/
4)https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/
5)Indian Patent Act 1970
6)Copyright Act,1957
7)Trade Mark Act,1999
10)The Biological Diversity Act,2002
11) The Protection of Plant ,Varieties and Farmers Rights Act,2001
12)Dr. S.K. Singh Intellectual Property Rights Laws/2nd edition Central Law Publication.
