Why traditional knowledge needs better IP protection

Traditional knowledge (TK), as defined on the WIPO website, is knowledge, know-how, philosophies, observations, art, literature, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity making it a living body of knowledge.

Traditional knowledge is developed and preserved by local and indigenous communities as a strategy for their survival in the biosphere. TK is often part of the social fabric and everyday life of a community and is generally not seen as a distinct body of knowledge separate from the community’s culture and its identity as a community. Traditional knowledge has played, and is still playing an important role in vital areas such as food security, the development of agriculture and medical treatment.

Importance of protecting traditional knowledge

Since TK incorporates information and know-how on a variety of matters, including resource management, medicine, crafts, artistic designs and cultural assets, its protection is essential to preserve the cultural values of communities.

But the lack of proper legal policy frameworks for the protection of TK in emerging economies provides a vacuum for industrialized nations to exploit TK and the resources of indigenous communities.

And while commercial interests may lead to the violation of indigenous intellectual property rights, such violations do not formally constitute a breach as neither national laws nor international standards acknowledge the rights of indigenous people in terms of traditional knowledge.

Protection under the existing IP system

At present, the conventional IP system is being stretched to offer protection to cover the holders of TK. Copyright can be used to protect a method of speech or expression but not the ideas themselves. Copyright is being used for example to shield TK holders especially artists belonging to indigenous and indigenous groups, from illegal reproduction and misuse of their works. The relationship between the creators / artists / authors and their work is being dealt with as moral rights.

For technological solutions that are derived from traditional knowledge, patent protection may be available for the use of community assets or processes known to indigenous communities.

TK is jointly held by local people, and geographical indication (GI) is also a means to safeguard traditional knowledge. A community in an exact locality is covered by the Geographical Indications of Products (Regulations and protection) Act. Geographical indications allow the originator of a product to prevent others imitating that product or using names or descriptions suggesting that the product comes from the location in question. GIs can be used to shield traditional therapeutic products for example. GI security is valid for 10 years, but it can be extended any number of times in order to safeguard GI for an indefinite period of time.

Even though the conventional IP system is being used to protect TK, its core principle of assisting in the dissemination of knowledge has become a hindrance to the protection of TK. This principle allows TK to be accessible to the public at large and in the process opens up the opportunities for misappropriation and dilution of the secrecy and sanctity of TK. So, it is important to preserve the delicate balance between protecting the rights of indigenous communities, and the benefits arising from of the commercialization of ideas and processes derived from traditional knowledge.

Photo: Shayne Inc Photography on Unsplash