Our ancestors were intellectual beings and the ancient knowledge they acquired was through empirical experience only. They passed on the valuable knowledge orally to our generations by visual experiences through time. The national and international legislation have a special set of specific rights based on the historical origin of the indigenous population. The indigenous people have lived close to nature for centuries around the world and possess immense knowledge about the environment, the eco-system, the flora and fauna. The indigenous people own the tacit knowledge for utilization of such resources with numerous cognitive techniques for production of food, medicine, communication, navigation, fuel, industry, material, energy and technology along with other developments for sustenance. The western knowledge is profoundly inspired by the traditional knowledge of such indigenous people and local communities residing all over the world for their intellectual innovations, and cultural practices. A traditional knowledge is a community owned knowledge and cannot be owned by an individual. Traditional knowledge or folklore knowledge or farmer’s knowledge differs from our western knowledge. The experiential traditional knowledge of indigenous people is complete with secular and sacred truth. Their prudent, holistic teachings are transmitted to another person orally or visually through stories, legends, folklore, rituals, songs, facts, concepts and theories which describe an object, event, behavioral interconnections and also exemplify the laws of an animate or inanimate environment. The Western knowledge favors knowledge, which is explicit and expressed by formal didactic transmission of literature and education.
Earlier, traditional knowledge was not recognized by the existing Intellectual Property Rights; the information was available in the public domain and exploited unlawfully. After receiving many hearsay reports for illegal ownership of folklore knowledge, the indigenous people, the local communities and the government of many developing countries protested and insisted on an equivalent protection for the system of traditional knowledge. The United Nations General Assembly pronounced a Declaration on the Rights of Indigenous Peoples for promoting the inherent rights of indigenous people from their cultures, spiritual traditions, historians and philosophies. WIPO, UNESCO and other international bodies also accepted the traditional knowledge as aesthetic and functional information.
Trade Related – Aspectsfor Intellectual Property Rights (TRIPS) is a crucial international agreement, which promotes and regulates the harmonization of intellectual property around the globe. A TRIP does not distinguish indigenous knowledge and community - based knowledge from the knowledge of the western community. Traditional knowledge may be deemed to be a subject of customary laws that recognize ownership and rights for possession and believes that if a product or a process of an innovation has been present in a culture for a long period of time, it is owned by that community and hence the community can observe protection under the intellectual property law. However, TRIPS argues and advocates that if such a product of process of an innovation is not patented then it shall not be owned by that community and if something is not owned then that knowledge shall remain part of the public domain and any person can avail use of such information. However TRIPS maintains that the indigenous people enjoy such collective rights that are indispensible for their existence, welfare and for being an integral part of progress among other people. Also the indigenous knowledge is a part of the traditional knowledge. Furthermore, these intangible assets are acknowledged with a legal status in perpetuity that holds a potential value for generating income. The traditional knowledge is consented to express explicit codification under the intellectual property laws and the innovations based on such knowledge may be protected under patents, copyright, trademarks, geographic indications, and as trade secrets of confidential information. There are two types of protection for traditional knowledge:
- Defensive Protection
- Positive Protection
Defensive Protection refers to a set of strategies to ensure that a third party does not gain illegitimate advantage of intellectual property rights over any traditional knowledge. The objective of defensive protection is to stop any person from acquiring traditional knowledge without prior informed consent. The databases by the Government of India for traditional medicines and native foods have a defensive protection within the Intellectual Property System. Positive protection empowers a community to promote the traditional knowledge and simultaneously prevent commercial exploitation. The World Intellectual Property Organization (WIPO) has also developed a toolkit to provide practical assistance for documentation of indigenous knowledge.
Man has the capacity to manipulate complex knowledge. The vital procedure for protection of any innovation based on traditional knowledge is Documentation. Several developed and developing countries have agreed on the importance of documenting traditional knowledge. Once the information is published in documentation, novelty on the disclosed information can be claimed.
India is a country dominant by Farmers yet by the recent statistics there has been a depreciation and suicide of farmer’s knowledge. India is in the process for inventing a navigable computerized database of documented traditional knowledge relating to the use of medicinal and other agricultural plants (which is already under public domain) known as a Traditional Knowledge Digital Library (TKDL) for protection of farmer’s knowledge. Such digital database shall enable the Patent Offices from all over the world to examine and search any prevalent use prior art and thereby prevent the grant of unlawful patents and biopiracy. Documentation can help protect traditional knowledge, which is confined in a private database, and help provide confidential information or secret record of traditional knowledge reserved for a relevant community only. The intellectual property law provides a diplomatic protection through patents of an innovation whether a product or a process associated with the traditional knowledge. A person can also copyright any such artistic work, motifs, literature, codes, programs, phonograms, music, and visual cinematography. If any intellectual property must be set aside as undisclosed information, such property can be reserved as confidential information and can be enforced as a trade secret. In order to increase the good-will of the brand name, the applicant can distinguish their recognition as a community by the application of a logo or a mark or copyrighted motif; the validity and proof of such marks as bona-fide can be obtained by use distinctive signs on brands such as trademarks, collective marks, service marks and certification marks. The geographical indication can personify the technique and development of an innovation based on such traditional knowledge. Under the Laws of India, a simple supplementary method is also available for the traditional knowledge is to draft a Memoranda of Understanding for the purpose of clarity and trust.
The Case of Ayahuasca
The Ayahuasca (Banisteriopsis Caapi) is a plant used for many medicinal and ritual purposes. Ayahuasca is the vernacular name among people of Quichua - the tribe of Amazon. It is a sacred ceremonial plant for many indigenous people of Amazonia. In 1986 after research in Ecuadorian Amazonia, a US Scientist and entrepreneur by the name Loren Miller (and president of the International Plant Medicine Corporation) was granted a patent on Ayahuasca DA VINE (US PLANT PATENT NO 5,751)
In November’1999The US Patent and Trademark Office (USPTO) was later revoke. The USPTO based its decision on the fact that publications describing Banisteriopsis Caapi were known and available prior to the filing of the Patent Application.
Thus, the inventions or the variety of plants based on the development of Genetic Resources, which may be associated with, or independent of traditional knowledge can also be protected under the Plant Breeders Right. The intellectual property rights are developed to remunerate the native peoples for transitioning their valuable knowledge and biological or genetic resources to the present day.
From the Lawyer’s Desk
The ancient knowledge is a living body that has been developed wisely and sustained each environment of time. This awareness has been passed on within the community and has created a significant cultural and spiritual identity. Traditional knowledge, a sagacious gift of easementary rights conferred to the present generations. We must utilize such offerings in the manner approved by law and advice to seek an intellectual property specialist for optimal utilization of innovation associated with traditional knowledge. The author endeavors to enlighten the readers with the accurate measures for safeguarding intellectual knowledge as we all have lawful right to acquire such intangible traditional knowledge of our natives.