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Protecting Traditional Knowledge: Can Intellectual Property Rights help?

Article in Ancient Science · November 2014

DOI: 10.14259/as.v1i2.152

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Citation: Lakshmanan, Pushpa Kumar, and Lakshmanan S, Protecting Traditional

Knowledge: Can Intellectual Property Rights help? Anc. Sci. Vol 1, Issue 2 (2014) pp.30-41.
eISSN: 2373-7964.

URL: http://vripress.com/index.php/AS/article/view/152

Protecting Traditional Knowledge: Can Intellectual Property Rights help?

Pushpa Kumar Lakshmanan1* and Shanmugamurthy Lakshmanan2

1
Berkman Center for Internet and Society, Harvard Law School, Harvard University, USA
2
Wellman Center for Photomedicine, Massachusetts General Hospital, Department of Dermatology, Harvard
Medical School, MA, USA.

Abstract:
Traditional knowledge (TK) is the intellectual creativity of indigenous peoples and local
communities developed over generations through close observations of nature and
experimentation. TK of indigenous civilizations provide enormous benefits for life-style
management, preventive health care system and state-of-the-art technology for humanity as a
whole. Unfortunately, current legal systems have not given enough credit and validated TK for
its direct and indirect contributions to the development of modern science and technology so far.
This paper unfolds various dimensions in which TK is sought to be protected under the modern
legal and economic systems. It probes into the possibilities of TK being protected under
intellectual property rights or alternative mechanisms yet to be created. Here an evaluation is
carried out based on logical analyses on the provisions of Convention on Biological Diversity,
Nagoya Protocol and the exclusive involvement of World Intellectual Property Rights
Organization (WIPO) that are designated to protect genetic resources, TK and traditional cultural
expressions.

Key Words: Traditional knowledge, ancient science, ancient wisdom, indigenous peoples,
benefit sharing, intellectual property

*Corresponding author:
Lakshmanan P, Ph.D
Current Address:
Faculty Associate, Berkman Center for Internet and Society, Harvard Law School, Harvard University, USA.
Email: [email protected]
Introduction
Indigenous peoples and local communities dwelling in diverse demographic regions of various
culture spread around the world possess immense resources for accessing indigenous or
traditional knowledge (TK) based on ancient methodologies, and culturally evolved innovations
and practices. TK is the repository of collective knowledge developed over several thousands of
generations all around the world. It evolves from careful study and understanding of natural
ecosystems and their unique functions established by the ancient civilizations. It is important to
mention some ancient cultures such as the Mohenjo daro and Harappa, part of the Indus valley
civilization or even the Kumari Kandam that evolved in the southern tip of India were highly
civilized even before several thousand years ago [1]. These civilizations invented several striking
scientific concepts that are relevant to a vast number of modern phenomena such as gravity,
origin of the universe [2], energy particles [3], planet rotation and seasons, solar system and
constellations and many more such innovations that may not have a modern word to word
translations due to language and cultural diversity. They have also invented many scientific
equipments and methods to accurately interpret planetary motions and their impact on human
beings and they formulated into astronomy, astrology and time and season calculations. They
also developed thousands of techniques for agriculture and holistic systems of medicine such as
Ayurveda [4] and Siddha that are still used as mainstream medical systems in some part of the
World. These knowledge systems operate in multifarious fields not limited to traditional
medicine, agricultural innovations, food technology, biodiversity conservation, climate change
mitigation, coastal area adaptability, astrophysics, architecture, marital arts, physical exercise
and, ecological balance and healthy lifestyles.

According to World Intellectual Property Rights Organization (WIPO), TK refers to “tradition-

based literary, artistic or scientific works; performances; inventions; scientific discoveries;
designs; marks, names and symbols; undisclosed information; and all other tradition-based
innovations and creations resulting from intellectual activity in the industrial, scientific, literary
or artistic fields” [5]. This statement is a broader definition attempting to incorporate the infinite
dimensions of TK. Figure 1 captures some of dimensions of TK, traditional cultural expressions
and genetic resources. However, the dominant modern Cartesian or western/European worldview
eclipses the TK and wisdom of innumerable generations of indigenous and local communities.
The major problem today for the inaccessibility of the TK is that the predominant discourses on
current knowledge in science undermines traditional knowledge and creates a bias thus
exploiting the Cartesian/modern model worldview [6]. This leads to a standstill in accessing
benefits from the traditional knowledge with authenticity.
Figure 1: Illustration of traditional knowledge, traditional cultural expressions and genetic
resources.

This statement is obvious as one can see for instance, traditional medical knowledge in Ayurveda
[7], Siddha, Marma, Acupressure [8], and Acupuncture were not accessible to the all corners of
the World easily in comparison to the accessibility of modern education and technology services.
If this knowledge were made available without any modification during redaction, the whole
world would have been availed the benefits of non-invasive holistic medical technologies and
that could have possibly prevented the budget allocation and unlimited resources spent towards
corporate-based medical systems which obviously did not pay back to humanity so far as
expected. In fact, much complicated medical treatments such as plastic surgery were first
performed in India around 3000 years ago by Sushruta [9]. These ancient medicinal practices are
widely and continuously being practiced in many parts of country as well. Yet, the modern
medical science undermines the traditional medicinal practices as an effective stand-alone
science. In fact, it often tries to view these systems through the lens of the modern Cartesian
axiom. It needs to be understood that the ancient medicinal systems are time tested medical cures
for people around the world as they have been in practice for at least a few thousand years.
Ironically these medical systems are referred to as alternative medicines instead of classifying
them mainstream medicine in India due to a bias that was established during British colonization.
Nonetheless, it is imperative to understand that in at least in India traditional wisdom and
medicines are practiced by about 50 to 60 per cent of people in one way or the other, exclusively
without incorporating modern medical practices. Similarly in Africa, more than 80 per cent of
population depends on traditional medicines.

Modern medicine can be benefitted hugely by incorporating attributes of ancient wisdom from
these traditional medicinal practices that can enhance effective medical cures for several disease.
Many modern researchers and pharmaceutical industries have been making progress by utilizing
TK and genetic resources to produce novel pharmaceutical medicines and therapeutical
procedures to the world as part of the modern innovations. However, the paradigm shift in the
axiomatic construct of these medical system is very important to consider to understand the
fundamentals of the mechanisms involved in the Ancient Medical Science and Technology [10].
It has to be understood that each culture has different cultural expressions of their own science
and that one kind of practice in a culture is connected to the development of technology services
and science that is relevant to the cultural identity. Therefore, there arise a need to bridge the
foundational gap between ancient science and technology with modern science by developing a
grand unified theoretical framework for solving modern societal problems [11].

Even though, the term “traditional” indicates the past, TK is neither static nor primitive; rather it
is highly civilized, dynamic and evolving in nature. It traces back to its origin in the past,
however, it is continuously in use and constantly fine-tuned or upgraded to meet the needs of the
modern World[12] by every other generation. There is a fair amount of evidence to convince that
TK is not frozen in time and it cannot be limited to the contributions of past generations alone
[13]. According to Russel L Barsh [14], what is ‘traditional’ about TK is not its antiquity, but the
way it is acquired and used. Barsh states that much of this TK is actually quite new, but has a
social meaning, and legal character, entirely unlike the knowledge gained by civilizations that
have colonized and settled down. Several generations have continuously contributed to these
innovations, practices and knowledge thereby renewing and enriching the ancient and modern
living. Unfortunately, today TK holders and their products are not rewarded or compensated for
their indirect and direct contribution to the development of modern science and technology. This
paper examines ways in which TK can be protected under the modern legal and economic
systems. The also addresses the possible means in which TK can be protected under intellectual
property rights or alternative mechanisms. It also analyses the provisions of Convention on
Biological Diversity, Nagoya Protocol and the efforts of World Intellectual Property Rights
(WIPO) organization to protect TK.

Acknowledging Traditional Knowledge

Modern legal systems, particularly, the property laws and intellectual property regimes provides
legal protection in terms of copyrights and disclosures to even trivial inventions in modern
science, in the form of patents, trademarks, copyrights, industrial designs, etc. However, TK and
ancient scientific inventions do not receive any such effective legal protection under these
regimes. Since 1980s, international community has been striving to recognize TK with the help
of various organizations such as Food and Agricultural Organization (FAO) of the United
Nations (that includes its Commission on Genetic Resources for Food and Agriculture),
International Union for Conservation of Nature (IUCN), United Nations Environment Program
(UNEP), Convention on Biological Diversity (CBD) and the World Intellectual Property
Organization (WIPO). Many legal bodies have explored different international approaches for
protecting TK within and outside the existing intellectual property system
[15],[16],[17],[18],[19],[20],[21],[22],[23],[24]. As identified by Sampath et al [25], there are
three levels of interests to protect TK: 1) At the supra-national level: there is a long term interest
in conserving genetic resources and traditional knowledge 2) at the national level: there is an
interest of source nations who host genetic resources and TK to regulate access for the purposes
of conservation and benefit sharing and 3) at the local level: compensation for indigenous and
local communities in the form of benefit sharing through their local customary laws. There is
also an overall interest in global scientific research, universal knowledge exchange and
international trade.

TK of the indigenous peoples are condemned by the modern legal systems for it’s primitively
and lack of proper bibliography references. Due to this reason, TK has become a prominent case
for discussion in terms of issues such as free riding, abuse and biopiracy. The most inconvincible
and unfair part practiced in the modern system is to disrespect TK and biological resources after
exploiting it for developing modern biomedical research and pharmaceutical products without
authorization or consent from the TK holders and conservers. The end products produced out of
TK and genetic resources are patented in many developed countries without any recognition or
compensation to TK holders – the people who diligently conserved the genetic resources in the
underdeveloped and developing countries for thousands of years. Examples include the
neem(nimboline) patent case, basmati patent case, turmeric patent cases and many more [26].
The hoodia patent case [27],[28],[29] and rosy periwinkle case [30] also clearly demonstrate how
the TK is utilized for developing modern medicines without the consent of the TK owners and
patenting it elsewhere. It needs to be understood that biopiracy and unauthorized utilization of
TK does not benefit the people who possess knowledge and who conserve the biological
resources for many generations. It is a need of the hour to meet the major shortcoming in the
current legal system that does not consider compensating the actual inventors or discoverers who
put significant effort in conserving genetic resources and value addition for generations. This
notions on TK promotes inequity and injustice in the current global legal systems overall.

In this phenomenally advanced era of information technology it is highly demanding to address

such shortcomings. It shows that inequity, misappropriation and unjust enrichment in legal
systems when viewed globally. Economic growth and human development should be equitable
and justice based. Utilization of genetic resources and TK knowledge should be backed by
appropriate reward and recognition. Justice demands equitable distribution of knowledge and
resources for the benefit of all without any deprivation or misappropriation. Legal mechanisms
need to be created for attaining such goals. As advocated by Schroeder & Pisupati [31];
Schroeder & Pogge [32] and Stumpf [33], justice in exchange (fairness and equity in
transactions), distributive justice (distribution of available resources equitably), corrective justice
(liability and redress through judicial process) and structural justice (reforming legal and
institutional mechanisms do deliver justice for the needy) are quintessential for global
development and global justice. Figure 2 illustrates this point.

Figure 2: Illustration depicting justice-based global development through justice in exchange,

distribution, legal remedies, and supportive legal structures.

Regulated access and benefit sharing

The Convention on Biological Diversity (CBD) for the first time in 1992 recognized the value of
TK and the efforts of local people in conserving genetic resources. CBD paved way for regulated
access to genetic resources and TK. Article 8(j) of the CBD mandated that the countries should
respect, preserve and maintain knowledge, innovation and practice of indigenous and local
communities that are connected to the conservation and sustainable use of biological diversity. It
also required that wider application should be provided to TK with the prior consent of
knowledge holders with additional provision to equitable benefit sharing for the utilization of
genetic resources and associated knowledge [34]. Article 15 of the CBD required that access to
genetic resources from any country around the World should be based on such prior informed
consent and mutual agreement between concerned parties backed up by benefit sharing. These
provisions introduce a new mechanism in the member countries of CBD for obtaining TK and
genetic resources. Some member countries have established national competent authorities to
regulate access to TK and genetic resources. Whenever TK and genetic resources were accessed
for research or commercial purposes, the users are mandated to obtain prior approval from the
national competent authorities. While granting approval, the national authorities are expected to
ensure prior informed consent and mutually agreement of the indigenous and local communities
for providing TK or genetic resources. As a quid pro quo, the users are expected to share a
portion of benefits with the indigenous and local communities.

The provisions of CBD, though provides a mandate for access and benefit sharing, it does not
prescribe implementable guidelines or procedures which raises challenging questions such as:
What is the proportion of benefit sharing? With whom will the users negotiate? How to share the
benefits? And with whom the benefits be shared if the TK holder could not be identified? The
Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits
Arising out of their Utilization, 2002 was adapted to provide guidance in implementing the CBD.
The Bonn Guidelines provided detailed procedures for access to genetic resources and TK and
benefit sharing. Nevertheless, it is a voluntary and non-binding guideline that could not cause
significant impact on implementation of access and benefit sharing.

Nagoya Protocol on access and benefit sharing

The Nagoya Protocol (hereafter the Protocol) on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits arising from their Utilization under the Convention on Biological
Diversity was adapted in 2010 to meet the long felt need for a legally binding international
instrument pertinent to this issue [35]. The Nagoya Protocol provides a much better resolution on
international rules and procedures for access and benefit sharing.

This Protocol applies to genetic resources within the scope of Article 15 of the CBD and to the
benefits arising from the utilization of such resources. The protocol also applies to TK associated
with genetic resources within the scope of the Convention. This indicates that the scope attempts
to realize the contents of the Article 15 and 8(j) of the CBD. Articles 5 and 6 of the Protocol
reflect the CBD’s approach to access and benefit sharing based on the principles of Prior
Informed Consent (PIC) and Mutually Agreed Terms (MAT).
Salient Features of the Protocol

1. Access to genetic resources shall be subject to the PIC of the Member countries providing
such resources, i.e, the country of origin of such resources or a member country that has
acquired the genetic resources. This will be proceeded according to the domestic access
and benefit-sharing legislation or regulatory requirements of the Member country.

2. TK associated with genetic resources held by indigenous and local communities shall be
accessed with the PIC or approval and involvement of these indigenous and local
communities. This will be in accordance with the domestic law.

3. PIC is not mandatory to regulate access to genetic resources. It is up to the Member

countries, whether or not, to provide for PIC procedure via domestic legislation.

4. If a country decides to regulate access to genetic resources subject to PIC, it has to enact
a domestic law. It must also provide a mechanism for PIC or approval system with the
help of a Competent National Authority. The mechanism must have clear legal certainty,
clarity and transparency and should possess fair and non-arbitrary rules and procedures
for accessing genetic resources.

5. Access to genetic resources and TK shall be based on MAT, in addition to PIC or

approval and involvement of the indigenous and local communities who hold such
knowledge.

In order to ensure proper compliance with the domestic legislation on ABS, the Protocol
obligates the Member countries to designate National Focal Points, Competent National
Authorities and Check Points. The checkpoints are designated for the purposes of tracking and
monitoring the flow of genetic resources and TK beyond national jurisdictions.

Monetary and non-monetary benefits

The Annex to the Protocol suggests monetary and non-monetary benefits as benefit sharing.

The monetary benefits include:

 Access fees per sample collected.
 Up-front payments.
 Milestone payments.
 Payment of royalties.
 License fees in case of commercialization.
 Special fees for conservation and sustainable use of biodiversity.
 Salaries and preferential terms where mutually agreed.
 Research funding.
 Joint ventures.
  Joint ownership of relevant intellectual property rights.

The non-monetary benefits include the following:

 Sharing of research and development results.
 Collaboration, cooperation and contribution in scientific research and development
programmes, particularly in biotechnological research activities.
 Participation in product development.
 Collaboration in education and training.
 Admittance to ex situ facilities of genetic resources and to databases.
 Strengthening capacities for technology transfer.
 Research directed towards priority needs, such as health and food security, taking into
account domestic uses of genetic resources.

Compliance mechanism

The countries that ratify the Protocol should ensure that the provider country laws are complied
with when the genetic resources and TK are utilized within its domestic jurisdiction. The
domestic laws should also contain provisions for penalty or sanctions to address the cases of
non-compliance.

Evaluation of Nagoya Protocol

Nagoya Protocol’s mandate of sharing genetic resources and TK through prior informed consent
and benefit sharing for national and international ventures will significantly help development of
new drugs and other cosmetics, health care and food products. The protocol features access to
increased choice of food products with better quality. It proposes to safeguard the interests of
both providers and users of genetic resources and TK. Benefit sharing may provide equitable
remedy for the efforts of indigenous peoples and local communities. The protocol has potential
to facilitate horizontal development and global justice. Figure 3 demonstrates this point.

In order to make the Nagoya Protocol function effectively, the countries need to enact binding
legal mechanisms and regulations, with simple and non-arbitrary procedures. It proposes to
safeguard the interests of both providers and users of genetic resources and TK. This will allow
increased utilization of TK and genetic resources in a transparent and equitable manner. It
further rules out that the countries should also take appropriate measures to document their
available TK.

The Nagoya Protocol requires ratification of fifty countries to enter into force. However,
unsurprisingly it has already secured ratification from 51 countries. The rule will become
effective on 12th October 2014. The advantage of the Nagoya Protocol is that it will establish a
new international practice to access genetic resources and TK from the indigenous people and
local communities with the help of their consent and mutually agreed terms. It will ensure
sharing of monetary and non-monetary benefits to them. However, the Protocol does not prevent
unauthorized use or misappropriation while developing new inventions or patenting protocols in
different countries. Also, the protocol does not provide any immobile or mobile property rights
or intellectual property rights to the intellectual contributions of local people. It only provides a
partial compensation or sales right while exchanging genetic resources or TK. Checkpoints will
have pivotal role to play. If the checkpoints in a provider country could not detect the flow of TK
or genetic resources or if a user country does not have legal mechanisms to implement the
Protocol, benefit sharing may become challenging and meaningless.

Figure 3: The approach to equitable global development and justice.

Can intellectual property rights help in protecting TK?

For most of the indigenous peoples, the concept of acquiring property for themselves could
possibly be an alien notion, and therefore the concept of intellectual property is much far away
from their current mind-set. However, in the modern world, when their knowledge is
misappropriated by others outside the community and that knowledge is protected under
intellectual property systems, the obvious question would be, why not the indigenous peoples
themselves acquire that right in the first place?

The Trade Related Intellectual Property Rights Agreement of the World Trade Organization
(WTO-TRIPS) happens to provide insufficient recognition to TK and contributors of ancient
science [36]. Cottier and Panizzon [37] argue that TRIPS agreement in its present form largely
favors the needs of developed countries only. Hence, there arises a need for innovations in
intellectual properties catering to the needs of developing countries as well to provide justice to
the existing WTO system. It will also ensure equity and justice in international trade and
intellectual property involving TK and genetic resources.

As it is already discussed, TK is an intellectual creativity of the indigenous peoples and local

communities. TK is developed by the people over several generations through observational
research and experimentation of nature [38]. In the words of Sunder [39], “TK is cultivated, not
discovered. The concept of TK, too, is a modern invention”. This perspective on TK further
substantiates and supports the urge for legal protection of the same; as TK is an intellectual
creation, and it can qualify for intellectual property protection.

When the modern inventions are recognized under intellectual property laws, there is a strong
case for equal protection of TK in an appropriate manner. TK can be protected either under the
existing TRIPS Agreement or through a new legal system (sui generis model). Even though the
modern parameters of patents may not favor protection of TK under the existing intellectual
property systems, innovative and a more flexible criteria needs to be formulated in order to
recognize TK globally. This recognition will promote unbiased rule of law in the intellectual
property regime on traditional knowledge systems and ancient wisdom. Intellectual property
protection to TK will economically help millions of indigenous peoples and local communities
who are living in acute poverty in many developing and underdeveloped countries. This also
puts an end to biopiracy around the world.

Efforts of WIPO to Protect TK

The World Intellectual Property Organization (WIPO) has recognized the need for protection of
TK. The WIPO-Intergovernmental Committee on Traditional Knowledge, Genetic Resources
and Traditional Cultural Expressions has been active since 2000 based on a mandate to develop
appropriate international legal instruments to protect TK. More than a decade has passed, yet the
member countries of WIPO are struggling to identify an acceptable definition for ‘TK’ as well as
a consensus to finalize the provisions of the draft. The key reason for this stagnation could be
attributed by the complexity involved in TK while defining ancient systems that has evolving
body of wisdom of indigenous and local communities. Most often, it is a collective creation of
indigenous and local communities that are dwelling in a particular demographic region.
Nonetheless, this theory may not be true in all cases; there are also individuals and small families
that possess TK for several generations effectively.

WIPO-Intergovernmental Committee has been considering two options of providing positive and
defensive protection to TK. Positive protection signifies granting of intellectual property rights
such as patents or sui generis registration model to the communities possessing TK. Similarly,
defensive protection tries to prevent misappropriation of TK by the patent regulatory authorities
while granting patents [40],[41].

In its 26th and 27th Session of negotiations in 2014, WIPO-Intergovernmental Committee has
developed three working drafts that have potential to shape into international legal instruments,
they are (i) Consolidated Document relating to Intellectual Property and Genetic Resources; (ii)
Draft Articles for the Protection of TK; and (iii) Draft Articles for the Protection of Traditional
Cultural Expressions. In the recently concluded 28th Session held during July 7-9, 2014, the
member countries considered the cross-cutting issues pertaining to TK, traditional cultural
expressions and intellectual property. The drafts is proposed to be transmitted to the
September 2014 session of the WIPO General Assembly to consider convening a Diplomatic
Session for finalizing international Instruments.

WIPO Draft Articles on the Protection of Traditional Knowledge

Among the three draft articles developed by WIPO, the draft articles on TK brings forth
significance to our present discussion [42]. According to Article 1, the subject matter of
protection is traditional knowledge which may be in codified, oral or in other forms. It may be
dynamic as well as evolving. This provision identifies TK with three qualifiers:

(a) It is created and maintained in a collective context by the indigenous peoples and
local communities or nations irrespective of whether it is widely spread or not.
(b) It is directly linked or distinctly associated with the cultural and/or social identity and
cultural heritage of indigenous peoples, local communities or nations.
(c) It is transmitted from generation to generation, whether consecutively or not.
To determine the criteria for eligibility, the draft requires that the TK should have been used for a
term as determined by each Member State but should not be less than 50 years. Though this
appears to be a difficult proposition, the obvious challenging questions are; a) How to determine
the origin of a TK to decide the period of its usage? And b) How to account for the period of
usage or transmission of TK if it is not consecutive?
Article 2 of the Draft, identifies the following as the beneficiaries of TK.

(a) The indigenous peoples and local communities and/or nations who create, hold, maintain,
use and /or develop TK.

(b) If a TK is not claimed by specific indigenous people or local communities despite

reasonable effort to identify them, the Member States may designate a national authority
as custodian of the benefits/beneficiaries.

(c) Details of the national authority established by the Member State should be
communicated to the International Bureau of the WIPO.

The scope of protection is one of the most contested Articles in the negotiations. The biases
endowed on developing and developed countries still need to be addressed. Article 3 of the draft
addresses the criteria or scope of protection of TK into three parts.

(a) Closely held TK that is sacred, secret or otherwise known within the indigenous
people or local communities.

(b) Publicly available TK which is neither widely known, sacred nor secret.

(c) Publicly available TK which is widely known and available in the public domain.

Table 1 explains this in a nutshell.

Type of TK Scope of Rights Remarks

I. Closely held TK (a) Exclusive and collective rights - to create, maintain, control and Exclusive rights
Sacred, secret or develop TK Collective rights
otherwise known
within Indigenous  authorize or deny access -discourage unauthorized disclosure Yes/No to access
Peoples and local or use
Communities  be informed of access to TK through disclosure mechanism in IP Disclosure mechanism
(IPLC) applicationswhich may/shall require evidence of compliance with
 prior informed consent (PIC)/ approval and involvement of -PIC
beneficiaries; and -MAT
 benefit sharing (BS). -BS

(b) ensure / encourage users to

 attribute TK to the beneficiaries Attribution
 fair and equitable benefit sharing / compensation based on
mutually agreed terms (MAT)
 use the TK in a manner that respects cultural norms and Respect to culture
practices and the inalienable, indivisible and imprescriptible Moral rights
nature of moral rights associated with TK.
II. TK held by (a) attribute and acknowledge the beneficiaries as the source of TK Attribution and
IPLC and publicly (unless the beneficiaries decide otherwise, or TK is not attributable to a Acknowledgement
available specific IPLC)
 which is neither (b) fair and equitable benefit sharing/compensation based on MAT BS, MAT
widely known,
sacred nor secret (c)Utilize TK in a manner that respects cultural norms and practices and Respect to Culture
the inalienable, indivisible and imprescriptible nature of moral rights Moral rights
associated with TK.
(d)Be informed of access to TK through disclosure mechanism in IP Disclosure mechanism
applications which may/shall require evidence of compliance with -PIC
 prior informed consent (PIC)/approval and involvement of -MAT
beneficiaries; and -BS
 benefit sharing (BS).
III. Publicly (a) attribute to the beneficiaries Attribution
available TK
which is widely (b) utilize TK in a manner that respects cultural norms and practices and Respect to Culture
known and in public the inalienable, indivisible and imprescriptible nature of moral rights Moral rights
domain, associated with TK.
Protected under
(c) where applicable, deposit User Fee User Fee
national law
in the Fund constituted by the State. No protection
ALTERNATIVE METHOD PROPOSED
No protection to TK No Protection
- widely known
- used outside the community for a reasonable period of
time in public domain
- protected by IP right
generally known principles, rules, skills, know-how, practices, learning

Table 1: Criteria for and Scope of Protection of TK (based on Article 3 of the WIPO Draft Articles on TK).

Other important features of the WIPO Draft Articles on TK

1. The draft provides exclusive and collective rights to the indigenous peoples and local
communities with the powers of authorizing or denying access to TK.

2. The TK holders have to give prior informed consent before arriving at mutual agreement
and benefit sharing.

3. Even after benefit sharing, the use of TK has to properly acknowledge or attribute TK to
its beneficiaries.

4. The cultural rights and moral rights of the beneficiaries have to be respected during the
use of TK.

5. If the TK is publicly available, widely known and in public domain, it has to be protected
under national law based on user fees or attribution.

6. The national law or customary law should provide development and use of voluntary
codes of conduct. Such law should discourage the disclosure, acquisition or use of
knowledge by others without the consent of the beneficiaries, provided the knowledge is
 secret and reasonable steps have been taken to prevent unauthorized disclosure, and the
knowledge has value. The downside of this provision is that it creates many loopholes
and creates uncertainty in law. The voluntary codes will not have sufficient leverage to
regulate the conduct of the parties accessing TK.

7. The Member States will be obligated to put forth in place enforcement procedures,
dispute resolution mechanisms, ensure border protection, and implement punishments
and remedies through domestic laws to deal with violations.

Disclosure requirements

Disclosure requirements are covered under Article 4bis. The patent and plant variety intellectual
property applications involving TK are required to provide information on the country (providing
TK) from which the applicant has collected or received the knowledge and the country of origin
of TK if the providing country is different. The application should also contain details of whether
prior informed consent or approval and involvement of indigenous peoples to access and use of
the TK have been obtained. If these details are not known to the applicant it is required that
information about the immediate source from which the applicant received the TK be mentioned
clearly. Rules will bar processing the application until the applicant provides accurate
information. If the applicant fails to provide these details within the stipulated time, the
application will be rejected by the intellectual property office.

Development of TK databases

1. As per the national or customary law, the Member States are required to develop national
TK databases for defensive protection of TK to prevent erroneous grant of patents and to
promote transparency, certainty, conservation and transboundary cooperation. Some
states are developing such databases. Traditional Knowledge Digital Library (TKDL) of
India is a good example for this.

2. The Member States are required to encourage creation, exchange and dissemination of
databases of genetic resources and TK and providing access to such database. It would be
a mammoth task for the individual Member States to create such database for genetic
resources and TK. But if it takes place it would contribute not only to implement this
instrument, but also for biodiversity conservation and advancements in botanical and
zoological research globally. The national law or the customary law should provide rights
to the third parties to dispute the validity of a patent in the opposition proceedings by
citing prior art.

3. If a TK is not uniquely held by a country, cooperation with other States is solicited in

developing TK databases. If a protected TK is included in such a database, sharing of
 such information with other State can be initiated with prior informed consent or
approval and involvement of the beneficiary.

4. International cooperation for making the database available to the intellectual property
offices should take into consideration efficiencies required to include information that
can be used to refuse a grant of patents and should not include protected TK.

5. The intellectual property offices should ensure that the information made available to
them through the databases shall be maintained in confidence except for the reasons of
citing the information as prior art while examining a patent application.

Penalties and Remedies

Article 4 of the draft deals with sanctions, remedies and exercise of rights. The beneficiaries will
have the right to legal remedies if their rights are violated. The draft proposes that the sanctions
and remedies should reflect the type that the indigenous peoples or local communities use. In
case of disputes, the compliance may be referred to an independent alternative dispute resolution
mechanism recognized by the international or regional body. If both the parties are from the
same country, the national law that is most suited for the holders of TK should be applied.

The WIPO draft articles tries to combine both positive and defensive protection. It is much likely
that the intellectual contributions of indigenous and local communities will be respected and
recognized in future; and their knowledge and resources may not be misappropriated while
applying for patents and other forms of intellectual property rights.

Conclusion

When the whole humanity desperately strives to attain sustainability in all areas with the help of
sophisticated state-of-the art technologies and services, TK, innovations and practices based on
Ancient Cultures has immense potential to offer astonishing solutions to the World. Instead of
supplementing modern science with ancient wisdom, the bias to include TK and ancient wisdom
can only suppress the benefits of the same leading to irreparable loss to the ecosystems and
health. It is high time that an unbiased independent research be carried on such systems by the
joint effort of the indigenous peoples and the moderns’ scientists bridging ancient wisdom and
modern technology. Every culture in the World has some kind of such practices or
methodologies that may reasonably work and it is important to consider the Wisdom of each
culture independently. Further, such knowledge on Ancient methodologies also need to be
incorporated in school curriculum so that the younger generations are trained in their own native
wisdom and cultural strength besides learning modern science.

Marking the 21st century remarkable technological advancements, intellectual property could be
a major mile stone in human development and economic growth. Recognition of TK and
intellectual property protection for the intellectual creations of indigenous peoples and local
communities has potential to uplift the economic, social, medical and psychological aspect of
people phenomenally. This step can lead to changes in life-style managements such as healthy
food habits, holistic medicinal services, life-modification education systems, value-based
entertainment systems and respectful behavioral patterns and ethics in Society as a whole.

Intellectual property protection for TK can also encourage innovations in TK as well unfold a
plethora of modern inventions associated with TK. Intellectual property protection can also help
prevent rapid endangerment of TK in many countries. The rule also ensures respect for
indigenous peoples and their ancient knowledge systems via preventing misappropriation of
knowledge by others.

The WIPO negotiations to develop draft articles have chosen sui generis model of protection for
TK. The WIPO Draft Articles on TK; and the Consolidated document relating to Intellectual
Property and Genetic Resources, as they stand now, prescribe disclosure mechanisms to prevent
misappropriation of TK. Disclosure alone may not provide fairness and just to TK holders,
additional provisions need to be identified and included in the amendments as part of an evolving
system. Recognition of TK as a class of intellectual property on its own merit would be the long
term solution that can potentially benefit indigenous peoples and local communities. Though a
long wait time, proper efforts to accord intellectual property protection to TK is a boon to the
entire universe.

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Author Column:

Dr. Pushpa Kumar Lakshmanan is a Fulbright-Nehru

Postdoctoral Research Fellow and Faculty Associate, The Berkman
Center for Internet and Society, Harvard Law School, Harvard
University, U.S.A. He is an Assistant Professor (Senior Scale) at
the Faculty of Law, University of Delhi, India and a Research
Professor, World Institute of Scientific Exploration, Baltimore,
U.S.A. He specializes in intellectual property law, traditional
knowledge, environmental law, international law and
biotechnology law. He also works on ancient wisdom, ancient
science and their interface with law, justice and world peace.

Dr Shanmugamurthy Lakshmanan is currently a Research

Scientist at Wellman Center for Photomedicine, Harvard Medical
School, MA working in the areas of Nanotechnology and
Ayurveda-Siddha Photomedicine. He is a distinguished Scientific
Advisor for the World Institute for Scientific Exploration and the
 head of the Indian Division of Sciences. Dr. Lakshmanan is also the Chair and Research Director
representing the RND division of the Association of Ayurvedic Physicians of North America
(AAPNA). He is also the Editor-in-Chief of the two international peer reviewed journals: 1)
Ancient Science and 2). Ayurveda. He has keen interest in identifying Ancient innovations from
his culture upgraded to the modern level of understanding.

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