Traditional Knowledge Vs TRIPS
Dr. T.S. Raghavendra. Department of Economics L.B. and S.B.S. College Sagara- Shimoga Dist
Paper presented at the International Folklore Conference held at Vishwa Bharathi, Shanthnikethan, Feb18-20, 2008
In the present scenario of market economy and globalization, ideas, innovations and creative processes of human beings have come to be accepted as a marketable commodity in the name of intellectual property. In this region of trade related to intellectual property, the position of knowledge that is shared by the entire community and that which is part of heredity has become very tenuous. The situation is all the more problematic with regard to the so called ‘third world countries’ which are very rich in traditional knowledge and expressions of folklore. These are in great danger of being exploited for commercial purposes not merely by the advanced economies but even by commercial interests from within. The paper tries to analyze the issues involved and the steps being taken to protect these at the national and international level. As the subject has very wide ramifications, only a few pointers at the efforts being taken in this direction are mentioned here. One of the main objectives of the Intellectual Property Rights is to protect Patents, Copyright and trade marks. The International regime which governs these is based on Western thinking around ownership and has most recently culminated in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). In the realm of international intellectual property law, which governs the exploitation of culture, of scientific innovation, and of the private ownership of creative production, ‘difference accommodation’ and ‘exercise of choice’ present significant difficulties. One area in which this is brought to the fore is traditional knowledge, including the categories of agricultural, medicinal and biodiversity-related knowledge, as well as expressions of folklore in music, dance, song, designs, stories, artwork and handicraft. The debates around the protection and exploitation of indigenous and community resources usually associated with nonWestern territories are intimately linked to the 1993 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which developed out of the Uruguay round of the General Agreement on Tariffs and Trade (GATT), now replaced by the World Trade Organisation (WTO) According to John Howkins, “intellectual property is the currency of the creative economy. IP laws regulate the way we have access to ideas, how we share ideas and how people earn rewards from their ideas. They are essentially about maintaining a balance between protecting the public domain (education and public libraries) and protecting rights-holders’ interests”(Enhancing Creativity, Seminar Sept 2005)
Traditional Knowledge: This is not related to any specific field of technology or the arts. It includes entire field of human endeavor. The full breadth of human expression is available for its transmission. Tradition knowledge systems in the fields of medicine and healing, biodiversity conservation, the environment and food and agriculture are well known. Other key components of traditional knowledge are the music, dance, and ‘artistic forms’ of a people. When a tradition singer performs a song, the cadence, melody, and form all follow rules, which have maintained for generations. Thus, a song’s performance entertains and educates the current audience, but also unites the current population with past. (International Bureau of WIPO) According to the Copy Right Act of 1994 a performer includes an actor, singer, musician, dancer, acrobat juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance; and “performance” means any visual or acoustic presentation made live by one or more performers. There is a need for international legal protection for folklore and that such protection should strike a balance between the community owning the folklore and users of the folklore. According to Group of Experts, Folklore (in the broader sense, traditional and popular folk culture) is group-oriented and tradition-based creation of groups or individuals reflecting the expectations of the community as an adequate expression of its cultural and social identity; its standards are transmitted orally, by imitation or by other means. Its forms include among others, language, literature, music dance, games mythology, rituals, customs, handcrafts, architecture and other arts. Concept of Property: Concept of property has changed over the years. When human beings were nomadic only elements recognized as property were movables and chattels. When agriculture became a major occupation, land and other immovable property became major form of property. With industrialization and the development of capital markets, non-physical objects also came to be recognized as property. Thus the concept of property has evolved and changed. And the latest addition to this concept is that of intellectual property. The existing Western regime of intellectual property rights is firmly rooted in the Articles of the Paris Convention of 1883. In the global information society modern information technologies are growing rapidly, at the same time the awareness is increasing about “traditional knowledge” and its spiritual, cultural and economic values
Copy Right and Related Rights:
Copyright protection will be given in accordance with the Berne Convention. The Berne Convention related to the protection of literary and artistic works. This was concluded in 1886 and was revised at Paris (1896), Berlin (1908), Rome (1928) Brussels (1948), Stockholm (1967) and Paris (1971). There was also an amendment in 1978. When the Uruguay Round Agreement refers to the Berne Convention, it means the Paris Act of 1971. Ninety countries, including India are members of the Berne Convention. – Berne Convention protects “certain unpublished works of unknown authorship” • • including traditional musical works fifty years after the work has been lawfully made available to the public
The Rome Convention secures protection in performances of performers, phonograms of producers and broadcasts and broadcasting organizations (termed as Neighboring Rights). This agreement was concluded in 1961. Thirty seven countries are members; India is not one of them. The existing copyright act is not enough to protect the traditional knowledge. The need for protection of folk expressions arises from the rapid development of technologies and from the globalization of market economies. Each facilitates the commercialization of folk lore. The objectives of protection of traditional knowledge are: • • • • • • the conservation of traditions; prevention of unauthorized exploitation; stimulation and pro motion of innovation and creativity; protection from misappropriation, distortion and other prejudicial action; protection and conservation of cultural and biological diversity; and, protection of the dignity and moral rights of traditional innovators and creators.
Creative and Cultural Industry: The term cultural industry was used about seven years ago by the President of The World Bank Mr. James Wolfensohn. Cultural industry encompasses all the creative genius and surviving human resource on our planet. The term creative industry, first used by United Kingdom and the United States included megabuck entertainment, music and arts industry at one end and high tech nano-tech and bio-genetics on the other was principally motivated by proprietal concerns. Creative industries, which often converges arts, business and technology are recognized as those industries which have their origin in individual creativity, skill and talent, which have a potential for wealth and job creation through the generation and exploitation of intellectual property. guiding principles are: 1. It can be considered as the last natural resource for the developing world. It is not exploited properly. 2. 3. It can contribute significantly to economic growth and poverty alleviation. A necessary prerequisite for the flourishing of cultural industries is an enabling environment that respects and encourages freedom of expression and collective creativity and that protects and promotes diversity. In this respect the
Support for cultural industries should be redefined as an investment in development rather than as expenditure. They are an increasingly important source of employment creation and sustainable income generation.
(Asia Pacific Creative Communities, UNESCO, UNIDO, World Bank and ADB) Doha Conference and UNESCO Initiatives: Doha ministerial meet put traditional knowledge debates firmly on the international IP law map. The debates focused on the management, protection, and exploitation of traditional knowledge-based resources by indigenous countries and communities who find themselves rich with traditional knowledge, especially genetic resources and folklore. For the sake of convenience the term “Traditional Knowledge” is replaced by ‘Heritage’. Since the Doha declaration, WTO members have continued to circulate discussion documents on protections for traditional knowledge and folklore. UNESCO has enacted several conventions that give some protection to cultural property and folklore. It has also worked to safeguard intangible folklore, including oral expressions like folk stories. In 2003, UNESCO adopted the Convention for the safeguarding of the Intangible Cultural
Heritage, which provides for member states to prepare national inventories of the intangible cultural heritage, including oral traditions and expressions and performing arts. The Convention does not directly address intellectual property rights or other forms of legal protection of groups or communities, but rather, states that its provisions will not affect the rights and obligations of States Parties deriving from any international instrument related to intellectual property rights. To achieve this UNESCO intends to closely cooperation with WIPO. Now the question is can we expect the positive amendments to TRIPS? Therefore it is high time to build cultural bridges between traditional knowledge holders and Western IP law. But the later cannot easily be reconciled with the collective productions of indigenous peoples’ People and Folklore in India: India is citadel of rich and diverse cultures and religions Tribal culture is one of India’s proudest symbols of heritage. The tribal communities in India are the primary source of folk culture and folk tradition. Rich folk literature and handicrafts, handlooms, folk painting, etc., contributed by these communities are significant components of the folk lore of India. And also the contributions of communities of non-tribal belts are significant in the shaping of the vast resources of the country’s cultural heritage, both in qualitative and quantitative contents. Handicrafts are a major element of folklore developed in India. These are objects made by the skill of the hand and depict the ingenuity of the creator and cultural heritage evolved over centuries. Created primarily to serve the ritual and personal needs of the community, these handicraft objects have entered the market for commercial trade. Folk agricultural practices also cover a wide spectrum of activities leading to the development of the most important occupation of India. The entire Indian subcontinent, stretching from the Himalayas in the North to the Western Ghats in the South West, is rich in biodiversity. The flora and fauna of the subcontinent developed over a period of time is an inseparable part of the folk tradition and heritage. The tribes and villagers of India have very pronounced systems of prevention and cure of several diseases in the form of Ayurveda. It has a long history. There are 18 languages recognized in the Constitution of India. In addition, there are a numerous dialects and sublanguages spoken in different parts of the country and each language is rich in literature. Folk art and literature also form a very vital component of the cultural heritage of the country. Collection of folk tales, myths, fairy tales, legends, animal tales, anecdotes, short stories dramas, proverbs, riddles, ballads, songs, lullabies, mymes, chants,, charms, speeches, etc., form a major part of the literary ;treasure that each language or dialect can feel proud of. One should recognize the social, cultural or the geographical environment in different parts of the vast terrain
stretching over 4000 kms, in length and breadth vary and these variations are duly reflected in the folk-creations of different regions or tribal groups\villages. Similarly, folk arts, both performing and non-performing categories like folk dances, drum beats, folk dramas, folk gestures, folk caricature and folk painting and sculpture, have influenced the cultural image of the country drastically. Now a day the urban people are very much interested in appreciating the various folk forms. Costumes, jewelry and household appliances are designed after the ethnic model. The film industry and various music companies are using extensively the folk culture, rituals, music, dance to enhance realism and add ethnic flavor to their products. In other words it is the commercialization of folklore. However it is unfortunate to note that no effort has been undertaken in India to protect the various forms of folklore. In the absence of any law to protect the intellectual property contents of the cultural heritage, there is no obligation from a purely legal perspective to reward or compensate the communities responsible for development and maintenance of such heritage. The beneficiary communities are either not rewarded or are compensated at proportions grossly inadequate with regard to the returns. There is a strong demand to formulate effective protection mechanism to preserve the traditional knowledge which includes technologies and indigenous knowledge systems as a whole. References: Chandrashekar, B.K, (1993), The Dunkel Draft: Design for Disaster, Navakarnataka Publications (P) Bangalore. Dadibhavi, R.V, and S.T. Bagalkoti S.T., Ed. (2003), World Trade Organization: Implications on India, Department of Economics , Karnataka University, Dharwad, Aug. Fischer, Susanna Ffrederick, (2005), Dick Whittington And Creativity: From Trade to Folklore, From Folklore to Trade, Texas Wesleyan Law Review, 12 TXWLR 5. Hermanns, Kwela Sabine, (2005), The hand that sets the table…. The political economy and selfreflexive project of intellectual property law in relation to traditional knowledge, International Journal of Media and Cultural Politics, vol.1, No. 1.
International bureau of WIPO, (2002), The Protection of Traditional Knowledge, Including expressions of Folklore, Document presented at the seminar, Oman, Jan21, and 22.
Kutti G Valasa P.V., (2002), National Experiences with the Protection of Expressions of Folklore\Traditional Cultural Expressions: India, Indonesia and The Philippines, Paper submitted to WIPO, Nov25. Maran, Lucy M (1998), Folklore Expressions--- Will Remedies become Available to Cultural Authors and Communities? University of Baltimore Intellectual Property Law Journal, spring. Sethi, Rajiv, (2005), Towards a National Policy, Seminar 553, Oct.