Traditional knowledge

is a part of the identity of most indigenous communities. The knowledge systems that comprise traditional
knowledge are an essential ingredient in achieving sustainable development. Furthermore it is important
to preserve the social and physical environment of which the traditional knowledge is an integral part.
Attempts to exploit traditional knowledge for industrial or commercial benefits may lead to prejudicial
misappropriation of the same from its rightful holders. Hence it becomes pertinent to develop ways and
means of protecting and nurturing traditional knowledge thereby ensuring sustainable development
compatible with the interests of the traditional knowledge holders.

What is traditional knowledge?

The concept of traditional knowledge is too varied to have a single definition as such a definition would
be prejudicial to the various forms of knowledge that are held by traditional communities. No superficial
legal definition will sufficiently encompass the complex social and legal systems that sustain traditional
knowledge within the original communities. Nonetheless it is very necessary to arrive at certain
demarcating standards defining traditional knowledge if such knowledge is to be protected. The most
practical method of protection is the prevention of unauthorized use by third parties beyond the traditional
circle. This form of protection focuses on the use of any indigenous knowledge as technical, ecological,
scientific, medical or cultural by a traditional community.

The demarcating standards in this case are:

# The content or substance of the knowledge.
# The use of such knowledge.
# The nature of the user

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.
# Sustainable irrigation through water systems such as the aflaj in Oman and Yemen and the qanat in Iran

Furthermore knowledge is not rendered traditional due to antiquity but due to the fact that it has been
developed, sustained and passed on within a traditional community, and is passed between generations,
sometimes through specific customary systems of knowledge transmission. Hence it is the relationship of
the knowledge with the community that makes it traditional.

Why should traditional knowledge be protected?

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

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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. For
example, when a traditional healer provides a mixture of herbs to cure a sickness, the healer may not
isolate and describe certain chemical compounds and describe their effect on the body in the terms of
modern biochemistry, but the healer has, in effect, based this medical treatment upon generations of
clinical trials undertaken by healers in the past, and on a solid empirical understanding of the interaction
between the mixture and human physiology. Thus, sometimes the true understanding of the value of
traditional knowledge maybe overlooked if its scientific and technical qualities are considered from a
narrow cultural perspective. With the gradual recognition of the value of traditional knowledge and an
exponential growth in the use of traditional knowledge products the greatest threat against it is that of
usurpation over-exploitation by commercial entities in derogation of the rights of the original holders.

How should traditional knowledge be protected?

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, i.e. 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, i.e. safeguarding against illegitimate intellectual property rights acquired by third
parties over traditional knowledge. Any system of defensive protection of traditional knowledge must
provide for:

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· 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 trade marks, 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.

Certain non IPR mechanisms of traditional knowledge protection

Traditional knowledge has been protected by certain mechanisms which are beyond the domain of
intellectual property. Such mechanisms are:
# Environmental: Concluded in 1994, the UN Convention to Combat Desertification provided for the
protection of traditional knowledge in the ecological environments as well as the sharing of benefits
arising from any commercial utilization of this TK
# Health: The World Health Organization has recognized the relevance of traditional knowledge in the
field of medicine as a source of primary health care in the Primary Health Care Declaration of Alma Ata.
# Trade and Development: The Doha Declaration adopted by the World Trade Organization in the Doha
Ministerial Conference, in 2001, instructed the TRIPS Council to examine issues regardingthe protection
of traditional knowledge.
# Food and Agriculture: The International Treaty on Plant Genetic Resources for Food and Agriculture
provides for the recognition of farmers rights and the protection of traditional knowledge relevant to plant
genetic resources for food and agriculture.

Conclusion
The call for protection of TK against misuse or misappropriation raises deep policy questions and
practical challenges alike. The changing social environment, and the sense of historical dislocation, that
currently affect many communities may actually strengthen resolve to safeguard traditional knowledge for
the benefit of future generations. Just as the technological value of traditional knowledge is increasingly
recognized and its potential realized, the challenge is to ensure that the intellectual and cultural

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contribution of traditional communities is appropriately recognized. This means taking greater account of
the needs and expectations of traditional knowledge holding communities. Its traditional qualities and
frequent close linkage with the natural environment mean that traditional knowledge can form the basis of
a sustainable and appropriate tool for locally based development. It also provides a potential avenue for
developing countries, particularly least-developed countries, to benefit from the knowledge economy.
The following actions could be taken to ensure the effective protection of traditional knowledge:
# National and international enforcement mechanisms in the intellectual property system that ensure legal
access to genetic resources and traditional knowledge should be fully developed and used.
# Political and legal flexibility in the existing international arrangements and negotiations to design and
implement positive and defensivesystems to protect traditional knowledge should be maintained and
enhanced.

# Broad and effective participation of indigenous and other local communities in all discussions and
negotiations on genetic resources and traditional knowledge

What is Traditional Knowledge?

Knowledge base which is developed by indigenous, local or native community has been preserved and
passed on to generations, so much so, that it becomes the identity of such community. Traditional
knowledge can be found in variety of concepts such as calculation of time, food article, plant properties,
spice uses, yoga practices etc. The most essential factor of Traditional Knowledge is that it has ancient
roots and it is often oral.
Why Traditional Knowledge must be protected?
Need to protect traditional knowledge have increased with changing time, especially in order to stop
unauthorized and commercial misuse of such knowledge. It is important to protect the indigenous people
from such loss and also help them to preserve such ancient practices. Protection to TK shall also promote
its wider and efficient use.
Protection of Traditional Knowledge

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The most difficult aspect of traditional knowledge is in its protection. There has been a lot of debate to
protect traditional knowledge under IP regime but that in itself faces a lot of challenges such as; a) under
which IP under which traditional knowledge can be protected, b) since every IP protection is provided for
a limited period of time then how will traditional knowledge have a continuous protection. Protection of
traditional knowledge is rooted in the problem of Bio-piracy. Bio-piracy occurs when there is commercial
utilization of traditional knowledge without proper authorization of the indigenous or local people
associated with such knowledge.
How to Protect Traditional Knowledge?
There are methods through which TK can be protected: a) Positive Protection, and b) Defensive
Mechanism. Positive protection means protecting TK by way of enacting laws, rules and regulations,
access and benefit sharing provisions, royalties etc. Defensive Mechanism means steps taken to prevent
acquisition of intellectual property rights over traditional knowledge.
India, for example, followed by the well-known case of USPTO, wherein patent was granted on healing
properties of turmeric and with much difficulty CSIR proved the prior existing knowledge of such
properties of turmeric with help of numerous ancient scriptures and documents, has adopted a Defensive
mechanism to protect its traditional knowledge by way of setting up a Traditional Knowledge Digital
Library (TKDL) in 2001, in collaboration between Ministry of Ayush and CSIR.
But is TKDL adequate? The digital library, although comprising of voluminous documents and work of
Indian traditional knowledge, has its own shortcomings such as; translation problems, disclosure of
traditional knowledge as prior art is unadvantageous since it leads to public disclosure of entire traditional
knowledge which simultaneously results to fishing expeditions, further one of the major aspect of
traditional knowledge is that it is mostly passed by generations in oral manner, therefore, a lot of TK has
no documentary record and TKDL maintains no record of oral traditional knowledge.
Adequacy of IP protection to Traditional Knowledge in India
Unlike other categories of intellectual property rights, India has no substantive act or law to protect
traditional knowledge but other IP acts contain provisions with respect to traditional knowledge such as
the Patents Act, 1970, Section 25 and Section 64, gives one of the grounds for revocation of a patent
application on the basis of traditional knowledge. Under the Copyright Act, 1957, has not specific
mention of protecting traditional cultural, literary or artistic work or folklore but Section 31A provides for
protection of unpublished Indian work, nonetheless Copyright protection in for a limited time period and
also demands certain criteria to be fulfilled, therefore under this IP as well protection of traditional
knowledge doesn't have much scope.
Past few years it has been seen that India has actively participated in TK conventions and has made
efforts to protect its TK at international level. Access to Indian TK is available at USPTO and EPO and
CSIR is day by day improving the efficiency of TK database.
Important International TK related conventions
The CBD and the 2010 Nagoya Protocol introduces the recognition and protection of TK at international
level. Article 8(j) of the CBD, requires parties are required to respect and maintain knowledge held by
indigenous communities, and promote broader application of TK based on fair and equitable benefit-
sharing. Article 16 recognizes TK as a 'key technology' for effective practices of conservation and
sustainable use of biodiversity, with procedural requirements established in Article 15 for access to

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genetic resources, including those based on prior informed consent and mutually agreed terms. The
Nagoya Protocol broadens the CBD provisions relating to access and benefit-sharing.
Call for Sui Generis Protection and its Awareness
There has been an increasing demand of Sui Generis system of Protection for traditional knowledge since
IP protection has its own downside and loopholes. Sui Generis is a Latin word meaning 'of its own kind'.
Sui generis instrument shall provide legal framework of protection of TK, enforcement of right of
indigenous communities, prevent misuse and control of TK, provisions of ABS (access and benefit
sharing) system etc.
In addition to TKDL system, India can work towards a more active approach, foremost to create
awareness and understanding among people who are till date completely unaware or have very limited
knowledge on Intellectual Property Rights as well as the term 'traditional knowledge'.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice
should be sought about your specific circumstances.

SCC Blog

Vidya Dadati Vinayam, Vinaya Dadati Paatrataam I

Paatratva Dhanamaapnoti, Dhanaat Dharmam Tatah Sukham I
This shloka in Sanskrit means true/complete knowledge gives discipline, from discipline comes
worthiness, from worthiness one gets wealth, from wealth one does good deeds, from that comes joy.
This ancient Sanskrit proverb resonates of the power and value of knowledge. It also echoes the need for
protection of traditional knowledge, a branch under intellectual property rights (IPR) that spurt on the
global platform with the finalisation of Convention on Biological Diversity (CBD), 1992.
A broad worded explanation of traditional knowledge is provided under Article 8(j) of the Convention,
which reads as:
Traditional knowledge refers to the knowledge, innovations and practices of indigenous and local
communities around the world. Developed from experience gained over the centuries and adapted to the
local culture and environment, traditional knowledge is transmitted orally from generation to generation.
It tends to be collectively owned and takes the form of stories, songs, folklore, proverbs, cultural values,

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beliefs, rituals, community laws, local language, and agricultural practices, including the development of
plant species and animal breeds. Sometimes it is referred to as an oral traditional for it is practiced, sung,
danced, painted, carved, chanted and performed down through millennia. Traditional knowledge is mainly
of a practical nature, particularly in such fields as agriculture, fisheries, health, horticulture, forestry and
environmental management in general.[1]
Traditional knowledge, as opposed to common belief, 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, and often forms 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.[2]
Protecting and promoting traditional knowledge is an amalgamation of various ideas like human rights,
conservation of resources, sustainable development, intellectual property rights and benefit sharing
mechanism. This work looks at traditional knowledge through the lens of intellectual property ecosystem.
In term of Intellectual Property (IP) protection for traditional knowledge, two types are being sought:
(i) Defensive protection which aims to stop people outside the community from acquiring intellectual
property rights over traditional knowledge. India, for example, has compiled a searchable database of
traditional medicine that can be used as evidence of prior art by patent examiners when assessing patent
applications. Defensive strategies might also be used to protect sacred cultural manifestations, such as
sacred symbols or words from being registered as trade marks.[3]
(ii) Positive protection under which there is granting of rights that empower communities to promote their
traditional knowledge, control its uses and benefit from its commercial exploitation. Some uses of
traditional knowledge can be protected through the existing intellectual property system, and a number of
countries have also developed specific legislation.[4]
However, the international legal system has not surfaced with an instrument for specific protection of
such traditional or indigenous knowledge and even though some national laws do accord protection, this
may not hold sufficient for other countries.
India—An overview of wealth
India is a mega diverse country with only 2.4% of the world’s land area, harbours 7-8% of all recorded
species, including over 45,000 species of plants and 91,000 species of animals. Of the 34 global
biodiversity hotspots, four are present in India, represented by the Himalaya, the Western Ghats, the
North-East, and the Nicobar Islands.[5] Further, India is the largest producer of medicinal plants and the
traditional medicinal systems found under Ayurveda, Siddha and Unani, are concepts that were developed
between 2500 and 500 BC in India.[6]
That India is a biologically diverse and the traditional knowledge possessed regarding various resources,
especially the medicinal system, makes it a richer nation is understood, however such the possession of
such knowledge must be both protected and promoted. India has undergone many struggles in trying to
safeguard her traditional knowledge. These resulted from patents granted to corporations, for knowledge
that is India’s legacy. I will enunciate three popular cases that brought to the fore the supposed “stealing”
of Indian traditional knowledge and access of biological resources, in contravention of the Biological
Diversity Act, 2002.

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The Neem case
A controversy that can be tagged the “first” for India, and which rose doubts about a supposedly “strict”
patent system, was the granting of patent to a company W.R. Grace. The company was granted a patent in
the United States and the European Union, for a formulation that held in the stable storage of
azadirachtin, the active ingredient in the neem plant; it planned to use azadirachtin for its pesticidal
properties. Traditional systems of medicine like Ayurveda and Unani, identify antiviral and antibacterial
properties of the neem tree also known as the “curer of all ailments” in Sanskrit, and prescribe the same
for treating skin diseases and as a natural pesticide. The applicant admitted in the patent application of
how the pesticidal uses of neem were known and pointed out to the fact that storing azadirachtin for a
longer duration is difficult. The US patent granted, covered a limited invention whereby the applicant was
only given the exclusive right to use azadirachtin in the particular storage solution described in the patent.
The grant of the patent was followed by an uproar and it was challenged through re-examination and post-
grant opposition proceedings before the United States Patent and Trade Mark Office (USPTO) and the
European Patent Office (EPO), respectively. Though there was no success at the Uspto, the European
Patent Office ruled in favour of the opposition stating the patent granted, lacked in novelty and inventive
step.
The Turmeric case
As the USPTO and EPO were dealing with the Neem case, a similar matter was boiling; a patent was
granted for “use of turmeric in wound healing” and claimed a method to heal wounds in a patient by
administration of an “effective amount” of turmeric. Suman K. Das and Hari Har P. Cohly were the
inventors of this patent and had later assigned the patent to the University of Mississippi.
A re-examination application was filed against the granted patent, along with nearly two dozen
references, which resulted into early success. The inventors’ defence was proven weak in front of the
modern commentaries on classic ayurvedic texts, extracts from Compendium of Indian Medicinal Plants
and nineteenth century historical texts from the library of Hamdard University, resultantly in August
1997, the USPTO ordered revocation of the patent, which lacked novelty.
The Basmati case
Another case that created much havoc was a patent granted by the USPTO to an American company
called RiceTec for “Basmati rice lines and grains”. Basmati rice is a traditionally grown aromatic variety
of rice, in India and Pakistan. The grant of this patent created multitude IP issues besides that under the
patent law i.e. under trade marks and geographical indications.
RiceTec had been granted patent for the invention of hybrid rice lines that combined desirable grain traits
of Basmati rice with desirable plant traits; this was due to the inferior quality of Basmati rice that grew in
US in comparison to the good quality Basmati rice being cultivated in northern India and Pakistan and
would help in growing a better crop of Basmati rice in the western hemisphere, especially US. A re-
examination request was filed, with declarations from two scientists, along with several publications on
Basmati rice and the research conducted on the rice in India—one of which made the USPTO realise that
core claims of RiceTec were non-obvious. This resulted into RiceTec not challenging the USPTO’s
decision and reducing its twenty claims to three.
Traditional Knowledge Digital Library (TKDL)

8
In June 1999, the then Planning Commission under the Central Government constituted a “Task Force on
Conservation and Sustainable Use of Medicinal Plants”.[7] One of its objectives included identification of
measures to facilitate the protection of “patent rights and IPR of medicinal plants”. One among several
recommendations of the Task Force, was creation of a library to ensure collation of traditional knowledge
on one platform, which is available digitally and is helpful in proving to the world that traditional
medicinal knowledge with India is prior art due to which, patent applications based on such knowledge
will not fulfil the criteria of novelty.[8] Thus, a database of India’s traditional knowledge, took birth.
Traditional Knowledge Digital Library (TKDL), is a database of over 2,50,000 formulations used in
traditional medicine systems in India, namely, Ayuveda, Siddha, Unani and Yoga. TKDL is a pioneer
initiative of India to prevent misappropriation of country’s traditional medicinal knowledge at
international patent offices on which healthcare needs of more than 70% population and livelihood of
millions of people in India is dependent.[9]
The world has noted India’s move towards a defensive protection in preparing the digital library, so as to
curb biopiracy and misappropriation of traditional knowledge. However, mere acknowledgement is not
sufficient, rather the implementation of an equitable benefit sharing mechanism which is imperative.
In 2005, the TKDL expert group estimated that about 2000 wrong patents concerning Indian systems of
medicine were being granted every year at international level, mainly due to the fact that India’s
traditional medicinal knowledge which exists in local languages such as Sanskrit, Hindi, Arabic, Urdu,
Tamil, etc. is neither accessible nor comprehensible for patent examiners at the international patent
offices.[10]
Conclusion
Knowledge is wealth and traditional knowledge has immense potential to resolve man’s budding
problems. Exploitation of this knowledge is extremely important but it must be coupled with protection,
promotion and benefit sharing.
Traditional knowledge may be termed as the IP family’s newest member. However, the decisions on
tackling this child have to be taken considering several factors, besides the (un)willingness of nations.
Correctly put, the knowledge system of informal sector i.e. traditional knowledge, is often oral and not
properly documented, thus non-defendable.[11] India has taken a step ahead and created a repository of
its ages old knowledge, which grows periodically but at an international level the need of a legal
instrument becomes increasingly urgent. The linking of traditional systems of knowledge with a modern
IPR system is the question of relevance.
A sui generis law is often pitched in as a probable solution for proper protection of traditional knowledge,
however till the time a legislation is formulated, policies and ideas like the National IP Policy, Digital
India and Startup India can rescue the fast fading system of traditional knowledge. It will not be wrong to
suggest, that in order to secure the future of species and mankind, the current generation will have to help
protect a fading generation’s valuable knowledge.

*Hetvi Trivedi is Research Associate, GNLU-GUJCOST Research Centre of Excellence in IP Laws,

Policies & Practices.
[1] Convention on Biological Diversity, available at <https://www.cbd.int/traditional/intro.shtml>, last
visited on 4-4-2018.

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[2] WIPO, Traditional Knowledge and Intellectual Property, available at
<http://www.wipo.int/pressroom/en/briefs/tk_ip.html>, last visited on 4-4-2018 .
[3] WIPO, Traditional Knowledge and Intellectual Property, available at
<http://www.wipo.int/pressroom/en/briefs/tk_ip.html>, last visited on 4-4-2018.
[4] Ibid.
[5] National Biodiversity Authority, India’s Fifth National Report to the Convention on Biological
Diversity, 2014, available at
<http://nbaindia.org/uploaded/Biodiversityindia/5th_NationalReporttoCBD.pdf>, last visited on 4-4-
2018.
[6] M.M. Pandey, Subha Rastogi and A.K.S. Rawat, Indian Traditional Ayurvedic System of Medicine
and Nutritional Supplementation, Evidence-Based Complementary and Alternative Medicine (2013),
available at <https://www.hindawi.com/journals/ecam/2013/376327/cta/>, last visited on 5-4-2018.
[7] V.K. Gupta, An Approach for Establishing a Traditional Knowledge Digital Library, 5 JIPR 307
(2000), available at
<http://nopr.niscair.res.in/bitstream/123456789/26010/1/JIPR%205%286%29%20307-319.pdf>, last
visited on 4-4-2018.
[8] Prashant Reddy T., Sumathi Chandrashekaran, Create, Copy, Disrupt: India’s Intellectual Property
Dilemmas, 271 (Oxford University Press 2017).
[9] Traditional Knowledge Digital Library, available at
<http://www.tkdl.res.in/tkdl/langdefault/common/Abouttkdl.asp?GL=Eng>, last visited on 4-4-2018.
[10] Ibid.
[11] V.K. Gupta, An Approach for Establishing a Traditional Knowledge Digital Library, 5 JIPR 307
(2000), available at
<http://nopr.niscair.res.in/bitstream/123456789/26010/1/JIPR%205%286%29%20307-319.pdf>, last
visited on 4-4-2018.

______________________________________________________________________

In this article, P. Mohan Chandran discusses the need for protecting Traditional Knowledge and why
India needs a unique legislation on it.
WHAT IS TRADITIONAL KNOWLEDGE (TK)?
TK is a body of knowledge, pertaining to innovations and practices of a group of local people, extracted
and developed through their close contact with nature for generations, which is later shared with the
successive generations. TK encompasses development from one generation to another, tangible and
intangible knowledge, and innovations of both potential and actual value. TK has continued to play a
critical role in significant areas such as food security, agricultural development and medical treatment.
THE NEED TO PROTECT TK

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The protection of indigenous and TK under intellectual property rights (IPRs) has received increasing
attention since the adoption of the Convention on Biological Diversity (CBD) in 1992. Empowerment of
local and indigenous communities (LICs) through recognition of community rights and protocols creates
an impetus for preservation and restrained disclosure of TK in a culturally enlightened manner.
TK plays an indispensable role in supporting sustainable development (SD) practices, and facilitates SD
in LICs through recognition of IPRs. The application of IPRs to TK held by LICs can enable SD. SD does
not compromise the needs of future generations to satisfy the desires of the present, and establishes a
realistic equilibrium between socio-economic development and environmental protection. SD must be
established on reciprocally beneficial pillars of mutual respect and legal exactitude, with the active
participation of LICs, and must be aimed at protective, practical and aggressive measures designed to
eliminate poverty and inequality. Recognition of IPRs in TK held by LICs through a specialized globally-
binding mechanism could work to harmonize lack of trust, positively stimulate preservation, and act as a
fair enabler of SD. Recognition of IPRs held by LICs, especially TK associated with biodiversity and
genetic resources, is an important step in realizing SD. TK plays a unique role, as it is inherently
established in the doctrine of conservation and sustainable use of biodiversity. The ‘2030 Agenda for
Sustainable Development’, comprising the 17 SD Goals (SDGs) and 169 goal-specific targets, was
approved in September 2015, and represents the most recent declaration of an integral approach to define
and realize SD.
The primary arguments for granting protection to TK include:
Equity
The prime concept for the protection of TK is based on equity. TK generates value that is not adequately
recognized and compensated due to the currently erroneous system of funding and reward. The protection
of TK, therefore, assumes significance to bring equity to primarily unjust and unequal relations.
Conservation
Another prime factor for the protection of TK is the importance of such knowledge for conservation.
Maintenance of biological diversity in farming generates value for the global community. IPRs could be
used to generate income to sustain the otherwise abandoned activities. Under this approach, the protection
of TK helps fulfill society’s macro objectives for the conservation of environment, sustainable agriculture
and food security.
Preservation of Traditional Practices & Culture
The protection of TK is a framework that encourages the maintenance of traditional practices, culture and
knowledge. In this sense, the concept of ‘protection’ is quite different from the concept applied under
IPRs. The preservation of TK is not only a key element of the right to self-identification and a pre-
requisite for the continuous existence of traditional people and indigenous communities, but also a vital
element of the cultural heritage of humanity. The crisis impacting the world’s diverse cultures and
languages is much deeper than the biodiversity crisis. About 90% of the 6000-odd languages currently
spoken – and their corresponding cultures – may face extinction in the next century.
Promotion of Use of TK & Its Significance in Development
The promotion of the use of TK is a vital objective. Article 8 (j) of the CBD requires the promotion of
‘wider application’ of TK. Protecting TK against loss and misuse, or ensuring compensation to TK-
holders are pre-requisites to boost the wider use of such knowledge. Protection may serve as an

11
instrument for facilitating access to TK. Protection of some kind may create the basis for trust required for
the LICs to share their knowledge and enhance their position to extract value from it. If certain rights are
recognized, knowledge-holders will be more willing and prepared to provide access to their knowledge.
Besides, compensating them adequately will encourage them to have more incentives to conserve it for
future access. Promoting the development of TK may also be a prime motivation behind protecting TK
from extinction and loss.
PROTECTING TK IN INDIA
Food security of the country is linked to protection of TK. Protection of TK of the LICs seem to be one of
the most controversial and complex issues. Technology developments in the new millennium poses
serious challenges to the global legal community to establish new global legal standards for encountering
the problem of IP protection. The incorporation of IPRs in TK offers the most pragmatic route to
providing both protection and fair access to TK held by LICs, with the identified drawbacks addressed
through common but separate domestic legislation, capacity-building, and mutually-supportive
compliance systems.
IP protection for TK can provide a fundamental system, established on transparency and recognition of
rights of LICs, which will enable the collection, documentation and preservation of TK under a cloak of
inalienable rights. Application of specific IPRs relating to TK assumes the nature of both a defensive
posture preserving TK in a sui generis international legal mechanism, and of a proactive system to
promote SD through codification of community protocols and effective benefit-sharing. SD must be
viewed comprehensively, and not individually, requiring involvement with LICs based on a relationship
of trust and mutual respect.
GLOBAL LEGAL FORA FOR INCREASING PROTECTION OF INDIAN TK
Indian TK is now available to the United States Patent and Trademark Office (USPTO) and European
Patent Office (EPO), who can access the database of TK, courtesy the Indian Government’s permission.
India’s Council of Scientific and Industrial Research (CSIR), and the Department of Ayurveda, Yoga and
Naturopathy, Unani, Siddha and Homeopathy developed the TK Digital Library (TKDL), a 30-million
page searchable database of TK translated from several languages such as Hindi, Sanskrit, Arabic,
Persian, Urdu and Tamil into English, Japanese, French, German and Spanish.
There are several other international legal platforms and mechanisms that currently address IP protection
relating to TK, including the following:
The UN Draft Declaration on Rights of Indigenous Peoples (UNDRIP): Article 29 of this UN Draft
Declaration specifically states that people from LICs are authorized to the recognition of the complete
ownership, control and protection of their cultural and IP. They have the special rights to control, develop
and protect their sciences, technologies and cultural expressions, including human and other genetic
resources, seeds, medicines, wisdom of the characteristics of flora and fauna, oral traditions, literature,
designs and, visual and performing arts.
Global Guidelines: Another positive initiative is the inclusion of a set of draft corporate guidelines for
businesses that want to use native plants and TK from LICs to make commercial drugs.
The CBD and the 2010 Nagoya Protocol establish the dominant international system for the recognition
and protection of TK. Under Article 8(j) of the CBD, parties are required to respect and maintain
knowledge held by LICs, and promote broader application of TK based on fair and equitable benefit-
sharing. TK is further recognized in Article 16 as a ‘key technology’ for effective practices of

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conservation and sustainable use of biodiversity, with procedural requirements established in Article
15(4–5) for access to genetic resources, including those based on prior informed consent and mutually
agreed terms. The Nagoya Protocol, which became effective from 2014, broadens the CBD provisions
establishing a concrete system determining access and benefit-sharing. Other relevant developments
relating to TK that evolved simultaneously to progress in the CBD leading up to the Protocol include the
establishment of:
the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) passed by the
Food and Agriculture Organization Conference in 2001, effective from June 29, 2004. This treaty
provides for protections relating to ‘farmers’ rights’ including TK and traditional breeding practices.
the Inter-Governmental Committee (IGC) on IP and Genetic Resources, TK and Folklore, established
under the World Intellectual Property Organization (WIPO) in 2000, which provides a forum for
negotiations on issues related to development of a binding international mechanism on TK.
NEED FOR A ‘SUI GENERIS’ LEGISLATION IN INDIA
The protection of TK raises several policy issues, prominently the objectives and methods of such
protection, and its impact and ramifications for intended beneficiaries. Such issues are extremely
complex, since there are broad differences about the definition of the subject matter, the justification for
protection, and the means for achieving its purposes. The issues pertinent to TK should be addressed in a
comprehensive manner, including ethical, environmental and socio-economic concerns. Moreover, there
are still several unresolved technical issues such as the problem of collective ownership and the modes of
enforcement of rights.
The conviction that TK has helped the industry generate gargantuan profits has proved to be relentless. Of
course, much of the international law governing access to genetic resources and benefit-sharing has been
woven around this idea. TK should be protected on both human rights and utilitarian grounds, but the
political strategy adopted by India for the past two decades needs to be seriously reconsidered. In terms of
legal benchmark, this strategy has been dichotomous. The first is the access and benefit-sharing path via
the CBD and its Nagoya Protocol. The second is based on IP law and comprises:
(i) reforms aimed to reduce misuse of genetic resources and TK, such as by enhancing patent prior art
searching, restricting the scope of the subject matter claims in patent law to biological, biochemical and
genetic issues, and necessitating patent applicants to disclose the origin of genetic resources and TK that
were useful or essential to an invention; and
(ii) the enactment of sui generis TK protection laws, based partly on current forms of IPRs, but with some
modern features.
TK cannot flourish when decisions affecting LICs continue to be made by urban educated elites. We need
to give up political space to allow LICs to formulate the rules of involvement. The 2007 UNDRIP affirms
territorial rights and self-determination, and these must be essential elements of strategies, activities, laws
and regulations.
The development of any system for the protection of TK should be established on a logical definition of
the objectives sought, and on the propriety of the mechanism selected to accomplish them. IPRs may be
one of the devices to be used, but their limits and ramifications should be clearly gauged. A balance
should be struck between the protection and promotion of the use of such knowledge. The extent to which
the myriad proposals made for the protection of TK convey the aims and cultural values of the LICs they
intend to serve should not be ambiguous. There is a risk of transferring concepts and models unsuited to

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their realities to such communities, or which may prove ineffective in solving the issues they are
supposed to address. The protection of TK should not outweigh the fact that its preservation and use
requires ensuring the survival and improvement of living conditions in the ambiance and cultural setting
of such LICs.
THE WAY AHEAD
The following actions could be taken in future in this field:
A comprehensive national level development strategy boosting the protection of TK, including the
settlement of prime issues such as land rights and the need to respect and maintain the lifestyles of LICs.
Recognizing the varying needs for the protection and promotion of TK in several areas such as TM and
plant genetic resources.
Administering farmers’ rights at the national level.
Progressing towards the enactment of a misappropriation regime in the short-run.
Expediting the work in WIPO, UNCTAD, WTO and other fora to clarify the possible role, scope, and
content of protection mechanisms for TK.
Guarantying a wide and effective participation of representatives from LICs in the definition and
implementation of any protection system for TK.
REFERENCES & BIBLIOGRAPHY
Freedom-Kai Phillips, Intellectual Property Rights in Traditional Knowledge: Enabler of Sustainable
Development, (Sept. 29, 2016), http://www.utrechtjournal.org/articles/10.5334/ujiel.283/.
Navin Anand, International Development Relating to Protection of Traditional Knowledge, (Apr. 6,
2015), http://www.lawctopus.com/academike/international-developments-relating-protection-traditional-
knowledge/.
Graham Dutfield, Traditional Knowledge, Intellectual Property and Pharmaceutical Innovation: What’s
Left to Discuss? (2014),
http://www.academia.edu/10427115/Traditional_Knowledge_Intellectual_Property_and_Pharmaceutical_
Innovation_Whats_Left_to_Discuss.

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