Protection of Traditional Knowledge

1. Meaning

WIPO describes traditional knowledge as knowledge, know-how, skills and practices developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. It includes medicinal knowledge (Ayurveda, Siddha, Unani, tribal healing), agricultural practices, and knowledge of biodiversity. Traditional cultural expressions (folklore) are the artistic side: music, dance, designs, crafts, narratives. TK does not separate the technical from the spiritual, which is one reason property categories fit it awkwardly.

2. Why conventional IP fits badly

• Authorship and inventorship: IP rewards an identifiable creator; TK is collective and often has no single author.
• Novelty: TK is old, so it fails novelty and is treated as prior art or public domain.
• Term: IP rights are limited in time; communities want permanent protection.
• Public domain: much TK is “known” but held under customary rules about who may use it. IP treats anything not protected as free for all, which allows outsiders to take it and patent improvements.

Some IP tools still help: geographical indications for craft and produce (Channapatna toys, Kani shawls), collective and certification marks, confidential information for secret TK, and copyright for recorded or adapted folklore, though the community has no copyright in the underlying tradition.

3. Defensive protection in India

The turmeric and neem controversies of the 1990s (dealt with in the plant varieties paper) showed that foreign patent offices were granting patents on known Indian uses because they had no access to Indian sources. India responded in three ways:

1. Traditional Knowledge Digital Library (TKDL). Set up by the CSIR and the Ministry of AYUSH (originally the Department of Indian Systems of Medicine), it translates formulations from classical texts of Ayurveda, Unani, Siddha, Sowa Rigpa and yoga into English, French, German, Japanese and Spanish, arranged by a classification modelled on the International Patent Classification. Patent offices, beginning with the European Patent Office, have been given access under non-disclosure agreements, and TKDL evidence has been used to have many applications withdrawn or rejected.
2. Patents Act, 1970. Section 3(p) excludes from invention “an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components”. Anticipation by knowledge available within any local or indigenous community in India or elsewhere, oral or otherwise, is a ground of opposition (section 25) and revocation (section 64). Applicants must disclose the source and geographical origin of biological material used (section 10(4)), and non-disclosure or wrong disclosure is a ground of opposition and revocation.
3. Biological Diversity Act, 2002, as amended in 2023: prior approval of the National Biodiversity Authority is required, before a patent is granted, for any IP based on research on biological resources or associated knowledge obtained from India, and benefit sharing follows.

4. Positive protection

• Benefit sharing: the Kani tribe of Kerala shared licence fees and royalties from “Jeevani”, a drug developed by the Tropical Botanic Garden and Research Institute from the arogyapacha plant on the basis of Kani knowledge. It is the usual model example, though it also showed difficulties over who represents the community.
• Registers: People’s Biodiversity Registers maintained by Biodiversity Management Committees under the Biological Diversity Act record local knowledge.
• Sui generis laws abroad: Peru’s Law 27811 (2002) on collective knowledge of indigenous peoples; Panama’s law on collective rights of indigenous peoples (2000); and the African Regional Intellectual Property Organization’s Swakopmund Protocol (2010).
• Farmers’ rights under the PPV&FR Act, 2001, protect farmers’ varieties and community contributions (covered in the plant varieties paper).

5. International framework

• Convention on Biological Diversity (1992), Article 8(j): parties shall respect, preserve and maintain the knowledge, innovations and practices of indigenous and local communities, promote their wider application with the approval of the holders, and encourage equitable sharing of benefits. The Nagoya Protocol (2010) extends access and benefit-sharing obligations to traditional knowledge associated with genetic resources.
• UN Declaration on the Rights of Indigenous Peoples (2007), Article 31: indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, TK and cultural expressions, and the IP over them.
• WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), set up in 2000, has negotiated draft texts on TK and traditional cultural expressions for over two decades.
• WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, adopted at a Diplomatic Conference in Geneva in May 2024. Its central rule is a patent disclosure requirement: where a claimed invention is based on genetic resources or associated TK, applicants must disclose the country of origin or source and, for TK, the indigenous people or local community that provided it. It is the first WIPO treaty to deal with indigenous peoples and local communities. India supported it; its existing section 10(4) disclosure rule already goes further.
• TRIPS: the Doha Declaration (2001), paragraph 19, directed the TRIPS Council to examine the relationship between TRIPS, the CBD and TK. India and others proposed amending TRIPS to add a disclosure requirement (a new Article 29bis); this has not been adopted.

6. Traditional cultural expressions and designs

For a designs paper, the link is that traditional motifs (Warli painting, Madhubani, ikat patterns) are often used in industrial designs. Under section 2(g) a design that is old in itself but new in its application is “original”, so a manufacturer can register a traditional motif applied to a new article. The community receives nothing. Possible responses are GI registration for the craft, refusing design registration for motifs that are unaltered traditional expressions, and benefit-sharing schemes.

How this is examined

An essay on the need for TK protection, or a short note on TKDL or on the 2024 WIPO Treaty. Explain why IP fits badly, then the defensive tools (TKDL, section 3(p), disclosure), the positive tools (benefit sharing, sui generis laws), the international instruments with years, and the debate.