Legal Measures for Protecting Traditional Knowledge (TK)
Significance of Traditional Knowledge
Traditional knowledge can refer to “know-how, practices, skills, and innovations” that are indigenously developed and passed from one generation to another. It is usually collectively owned and evolved across centuries. Traditional knowledge has broad applications, particularly in agriculture and medicine but also in ecosystem restoration and agroforestry.
Traditional knowledge is not formally protected under the international IP system. The difficulties in defining traditional knowledge and the collective aspect of it pose several challenges because IP systems grant term-limited proprietary rights to a specific individual or institution. Given the commercial applications of traditional knowledge in biotechnology, one concern that can be identified occurs where traditional knowledge is expropriated by being incorporated into a patented invention.
Protecting Traditional Knowledge
There are two main approaches taken for protecting traditional knowledge. These include defensive and positive protection strategies.
Positive protection strategies
Positive protection involves traditional knowledge holders directly acquiring intellectual property rights using patents or alternate forms of protection. States have taken different measures on this. Some states rely on existing IP measures as an adequate way of protecting traditional knowledge. Others think that the distinct nature of traditional knowledge requires designing a new system to complement the existing IP system. This is referred to as “sui-generis” measures for protecting traditional knowledge. In some cases, states have also adapted or extended conventional IP rights in relation to traditional knowledge.
Defensive protection involves using measures to prevent intellectual property rights from being granted to traditionally protected knowledge by unauthorized individuals.
Here are some examples of approaches taken by communities to defensively protect traditional knowledge:
Traditional knowledge data banks
In 2001, India launched a traditional knowledge database to protect the misappropriation of traditional knowledge. The database documents prior art pertaining to medicines that is accessible in five languages, allowing patent examiners to verify the novelty of an invention. India was the first country to create a database like this, which can help prevent invalid patents from being granted. To date, the repository contains approximately two million formulations of Indian medicines as well as yoga postures. The strategy has been largely successful resulting in a number of patent applications being cancelled or withdrawn for seeking patent rights over traditional compounds for healing.
However, India’s strategy cannot be easily duplicated. The project largely depended on documenting traditional knowledge available publicly in existing literature and converting it into digitally accessible pages. In states where traditional knowledge is not well documented, they have yet another challenge in first compiling the data.
This form of protection refers to domestic legislation that requires voluntary or mandatory disclosure of genetic resources or traditional knowledge that is incorporated into the invention being patented. The purpose of these requirements is to encourage transparency of genetic resources and traditional knowledge. In countries with mandatory disclosure requirements, the omission to do so could prevent the patent application from being accepted. Brazil, India, and China are examples of countries that require mandatory disclosure.
Overall, one approach of protection is not necessarily better than another but rather, there are a range of options available for protecting traditional knowledge. While it may possible to protect certain aspects of traditional knowledge using the existing IP system, complementary measures can help fill any potential gaps in protection.