Traditional Knowledge and IPR
While there is not yet an accepted definition of TK at the international level, it can be said that: TK in a general sense embraces the content of knowledge itself as well as traditional cultural expressions, including distinctive signs and symbols associated with TK.
When community members innovate within the traditional knowledge framework, they may use the patent system to protect their innovations. However, traditional knowledge as such - knowledge that has ancient roots and is often informal and oral - is not protected by conventional intellectual property systems. This has prompted some countries to develop their own sui generis (specific, special) systems for protecting traditional knowledge.
It is not so-called
Traditional knowledge is not so-called because of its antiquity. It is a living body of knowledge that is developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. As such, it is not easily protected by the current intellectual property system, which typically grants protection for a limited period to inventions and original works by named individuals or companies. Its living nature also means that “traditional” knowledge is not easy to define.
Why we should protect traditional knowledge?
Traditional knowledge holders face various difficulties. In some cases, the very survival of the knowledge is at stake, as the cultural survival of communities is under threat. External social and environmental pressures, migration, the encroachment of modern lifestyles and the disruption of traditional ways of life can all weaken the traditional means of maintaining or passing knowledge on to future generations. There may be a risk of losing the very language that gives the primary voice to a knowledge tradition and the spiritual world-view that sustains this tradition. Either through acculturation or diffusion, many traditional practices and associated beliefs and knowledge have been irretrievably lost. Thus, a primary need is to preserve the knowledge that is held by elders and communities throughout the world. Another difficulty facing traditional knowledge holders is the lack of respect and appreciation for such knowledge.
How we can protect traditional knowledge?
Traditional knowledge should be afforded effective protection especially in developing and underdeveloped countries. Such protection should primarily be with regards to, firstly, the recognition of the rights of the original traditional knowledge holders and secondly, the unauthorized acquisition of rights by third parties over traditional knowledge. Due to the prevailing trends of globalization a great degree of international coordination and cooperation is necessary to effectively protect and develop traditional knowledge and any such protective strategy needs to consider the community, national, regional and international dimensions. Further the mechanisms sought to be implemented with regards to traditional knowledge must give subjective consideration to the original holders of the knowledge. Economic aspects of development need to be addressed by such mechanisms. Most importantly such protection should be affordable, understandable and accessible to traditional knowledge holders.
Systems of traditional knowledge protection
There are two forms of intellectual property related protection systems with regards to traditional knowledge. They are:
Positive protection: Giving traditional knowledge holders the right to take action or seek remedies against any misuse of traditional knowledge. Any system of positive protection of traditional knowledge must provide for:
- Recognition of value and promotion of respect for traditional knowledge systems.
- Responsiveness to the actual needs of traditional knowledge holders.
- Repression of misappropriation of traditional knowledge and other unfair and inequitable uses.
- Protection of tradition based creativity and innovation.
- Support of traditional knowledge systems and empowerment of traditional knowledge holders.
- Promotion of equitable benefit sharing from use of traditional knowledge.
- Promotion of the use of traditional knowledge for a bottom up approach to development.
Defensive protection: Safeguarding against illegitimate intellectual property rights acquired by third parties over traditional knowledge. Any system of defensive protection of traditional knowledge must provide for:
-The criteria defining relevant prior art apply to the traditional knowledge.
- A mechanism to ensure that the traditional knowledge constituting prior art is available and accessible to search authorities.
- It is suggested that these two approaches should be undertaken in a complementary way as a comprehensive approach to protection of traditional knowledge is unlikely to rely totally on any one form.
Legal concepts for the protection of traditional knowledge
Certain other legal concepts for traditional knowledge protection are:
Prior Informed Consent: As per this principle traditional knowledge holders should be fully consulted before third parties use their knowledge.
Equitable Benefit Sharing: This principle prescribes the balancing of the interests of the right holders and the general public.
Unfair Competition: Unfair competition means any act of competition contrary to honest practices in industrial or commercial matters and includes various acts that mislead the public or cause confusion. This principle allows for action to be taken against false or misleading claims that a product is authentically indigenous, or has been produced or endorsed by, or otherwise associated with, a particular traditional community.
Patents: When practitioners innovate within the traditional framework, they can use the patent system to protect their innovations.
Distinctive signs: Such signs include trademarks, collective marks, certification marks and geographical indications. Traditional signs, symbols and terms associated with traditional knowledge may be protected as distinctive marks.
Customary laws: Customary laws, protocols and practices are the ones which define how traditional communities develop, hold and transmit traditional knowledge.
Some examples of traditional knowledge are:
Use of plao-noi by the Thai traditional healers to treat ulcers.
Use of the Ayahuasca vine by Western Amazonian tribes to prepare various medicines.
Use of hoodia cactus by the San people to stave off hunger while outhunting.