Law and Justice

PROTECTION OF TRADITIONAL INDIGENOUS KNOWLEDGE & INTELLECTUAL PROPERTY RIGHTS

For Centuries, cultures throughout the world have used indigenous technologies to navigate life’s complexities. From navigator-priests in Micronesia to mystics in India, vast sums of knowledge are available if we but recognize it. -Elizabeth Kapu’uwailani Lindsey

With the onset of globalization, traditional and indigenous knowledge has emerged as an important issue. India is a country rich with customary practices and indigenous and traditional knowledge of plant variety and their medicinal use, handicrafts, recipe, folklore, dance forms and agree products.

However, it is unfortunate that the indigenous and traditional knowledge in India do not find enough intellectual property rights protection. Though the Geographical Indications of goods (Registration and Protection) Act, 1999 has come into effect from 2003, it has not proved itself sufficiently effective in protecting traditional and indigenous knowledge. Many plants or plant variety with unique properties are yet to find a place on the Traditional Knowledge Digital Library (TKDL) or on the Geographical Indications Registry (GIR). There is a close relationship between Geographical Indications, Traditional/Indigenous Knowledge and intellectual Property in the form of Trade Mark and Patent. The TRIPS agreement too has provision regarding registration of Geographical Indications as Trade Mark. Yet an effective mechanism for protecting Traditional/Indigenous Knowledge is lacking. If Intellectual Property coverage is effectively extended to Traditional/Indigenous Knowledge belonging to a community or individual in the community, then the proceeds from the use, sale or assignment of such property can be used to upgrade the economic status of the community. An effective mechanism for profit sharing needs to be worked out. Such an arrangement will also operate as an incentive to the community and may be used for the purpose of research and development of the knowledge.

Traditional/Indigenous knowledge provides a rich and fertile ground for research and development. Hence, has to be protected as an important intangible property. It has the potential of being transformed into wealth by providing leads and cues for development of useful practices and processes that may benefit mankind. The valuable knowledge can save time money and investment in the R &D departments. Existing intellectual property system is based on individual private property rights and as such prima-facie traditional/indigenous knowledge is incompatible with the intellectual property rights regime because traditional / indigenous knowledge emphasizes collective creation and ownership.

Only protection of traditional knowledge system will provide an effective benefit sharing mechanism, which is enshrined in the new IPR legislations. It is not fare that indigenous and traditional knowledge be appropriated without sharing of benefit with the owners of the knowledge. Appropriations without protections will violate indigenous cultural precepts by encouraging the commoditization of such knowledge. It will also increase false claims of IPR. Traditional knowledge base of plant based medicines will help accelerate drug development in India provided such knowledge is given the intellectual property rights protection.

There is a need to do many things for the protection of Indigenous/Traditional Knowledge. This particular subject matter (Indigenous/Traditional Knowledge [IK&TK]) has now geared the attention of the policy framers and academia with the onset of globalization. Bio-piracy, patenting of substances which were either the result of IK/TK or specific to a geographical location have been mistreated thus far. It is submitted these IK&TK specific to individual tribe or community made the world grow aware of the wealth of knowledge possessed by them. Intellectual property appears to be the only mechanism to protect them. Law relating to intellectual property defend intellectual labor to serve the interest of the nation. It is the key to development but protecting IK&TK and making them sustainable is also another method of development.

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