CHAPTER 1

INTRODUCTION
 CHAPTER 1

INTRODUCTION

1.1 General

The present global arrangement for the protection of intellectual property was

industrialized across the development period in the West and was next industrialized

according to the observed needs of technologically developed societies. Though, in

present years, original inhabitants, innate communities and governments, chiefly in

growing states, demands equal protection regarding traditional knowledge systems.

During 2000, World Intellectual Property Organisation (WIPO) associates

instituted an Inter-governmental Committee (IGC) regarding Intellectual Property as

well as for Genetic Resources, Instituted Vision and Folklore and in 2009 concurred

to build up one or extra global legal instruments to furnish conventional knowledge,

genetic resources and expressions (folklore) competent protection. Such an instrument

might move from a suggestion to WIPO associates to a proper accord that should

oblige states that choose to confirm it.1

Traditional vision is not developed because of its relic. It is a live body of

vision that develops, sustains and transmits from creation to creation inside an area,

frequently growing portion of its traditional or divine identity. As such, it is not

facilely protected by the present arrangement of intellectual property that usually

provides protection for a manipulated era to inventions and early works of labelled

people or companies. Their living nature additionally shows that "traditional" vision is

not facile to describe.

1
World Intellectual Property Organization (WIPO): The Protection of Traditional Knowledge and
Folklore (Proceedings of the WIPO Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore, Eighth Session. Geneva, June 6-10, 2005).

1
 Recognition of the established forms of creativeness and change as a

protectable intellectual property should be a vital change in global regulation,

permitting original and innate communities and governments to possess a say in the

use of their traditional knowledge by others. This should permit, for example, the

protection of established resources and original fine art and music opposing

misappropriation, and allow communities to manipulation and exploit business

exploitation.

Although the ongoing WIPO arbitrations have been commenced and grasped

out generally by growing states, discussions are not clearly going alongside the

"North-South" lines. Governments and Communities do not vitally allocate the same

sights, and a little government in industrialized states, chiefly those alongside original

inhabitants, are additionally active.

Traditional knowledge is generally understood to encompass four types of

creative works: verbal expressions - stories, epics, legends, folk tales, poetry, riddles,

etc., musical expressions - folk songs and instrumental music, bodily expressions -

dances, games, ceremonies Drawings, sculptures, ceramics, mosaics, jewelry, tiles,

textiles, carpets, costumes, musical instruments, drawings, etc. Traditional vision

includes beliefs, vision, habits, changes, arts, spirituality and supplementary forms of

traditional expression and experience fitting in to original communities concerning the

world. When the universal proclamation of human rights was adopted in 1948, it was

frankly believed that intellectual property is human rights of all people. Recently,

though, the demand to protect, uphold and safeguard the equitable use of original

intellectual property - traditional knowledge – know how went in the nationwide and

global debate on intellectual property rights. Of specific attention to original

2
inhabitants have been the unauthorized use of non-indigenous clusters, such as

enterprises, of traditional knowledge that has been present form over many decades.

Human communities possess always generated, refined and bypassed on

vision from creation to generation. Such “traditional knowledge” 2 is often an

important part of their cultural identity. Traditional vision knowhow performed, and

endures to performed, a vital act in the daily lifetimes of the large bulk of people.

Instituted vision is vital for the food protection and condition of millions of people in

the growing world. In countless states, established medicines are the merely

affordable treatment obtainable to the poor. In under developed states, up to 80% of

the populace depends on established medicines to encounter their condition.3

In supplement, knowhow of the curing properties of plants have been the basis

of countless present medicines. As can be perceived, the endured use and progress of

innate assortments of plant assortments, the transactions and dissemination of these

assortments, and the associated know how performed a vital act in agrarian

arrangements in growing countries. Though, the global area possesses presently

pursued to understand and protect established information. During 1981, WIPO and

UNESCO adopted an ideal regulation on folklore. In 1989, FAO provides farmer

rights in its global promise to plant genetic resources and in 1992 the Convention on

Biological Diversity (CBD) emphasized demand to advance and uphold traditional

vision. Till date definitive and universally satisfactory resolutions for the protection

and raise of traditional knowledge have not yet emerged.

The CBD additionally sets out principles administrating admission to genetic

resources and the vision associated alongside genetic resources and the allocating of

benefits emerging from such access. We consequently ponder the connection amid the
2
Ibid.
3
http://www.who.int/medicines/organization/trm/factsheet271.doc (visited on Feb.29, 2017 at 10:30
pm).

3
intellectual property arrangement and CBD principles of admission and profit-sharing

in the perspective of established and non-traditional vision and genetic resources.4

Integration of intellectual property rights and progress strategy is additionally

considered here, even though this is mainly a distinct subject, whether geographical

indications (GIs) is an act to be considered in advancing progress and relevant

subjects for the states in the ongoing discussions on this subject in the Council for

TRIPs.

1.2 Statement of Problem

Intellectual property refers to the right over properties which are creations of

the human brain i.e. intelligence. The owners of intellectual property rights are

granted rights to certain intangible assets like music, painting, literature, inventions,

symbols, marks, and sounds etc. which are the result of the creation of the mind.

These types of property are intangible in nature, which means the owner can use the

property absolutely and nobody else can use it without the prior permission of the

owner. And during the recent past developments have been taken place in the realm of

IPRs which can be seen in the field of biotechnology, bio diversity and traditional

knowledge. 5 Patent law has been extended to the traditional knowledge of tribal

population in the third world countries like human life, animals, plants,

microorganisms etc. There must be free access to these resources for the survival of

mankind on the globe. The traditional knowledge is always related with the biological

resources, which is to be preserved and protected from outside agencies from being

utilized at the cost of the possessor of such knowledge.6 This traditional knowledge

4
Anderson, Rebert D. and Nancy T. Gallini, Competition Policy and Intellectual Property Rights in the
Knowledge-Based Economy 255 (University of Calgary Press, 1998).
5
Dr. C.B Raju, “Intellectual Property Rights and Traditional Knowledge” 21 Journal of Intellectual
Property Rights 267 (2007).
6
Prof Basavaraju, “Intellectual Property Rights and Traditional Knowledge” 11 Journal of Intellectual
Property Rights 274 (2007).

4
cannot be separated from traditional people. Patent can also be claimed on traditional

knowledge which are new, involves an inventive step and capable of industrial

application. But in reality, it is difficult to fulfill as it is very difficult to identify the

true inventor of traditional knowledge or the specific community to which it belongs.

The Convention on Biological Diversity (CBD)7 is the first international treaty

that has come into force in December 1994 to recognise the important role of

traditional knowledge. The convention states that traditional knowledge includes

knowledge, innovations and practices of indigenous and local communities

embodying traditional lifestyles important for conservation and sustainable use of bio

diversity and promote the wider application with the approval and involvement of the

holders of such knowledge, innovations and practices and encourage the equitable

sharing of benefits arising from the utilisation of such knowledge innovations and

practices.8

India is one of the country with vast agricultural and ethnic diversity. It is a

hub of traditional knowledge and indigenous culture and ethnicity. There are various

activities which are cultural or traditional based with some indigenous spirit, which

can be validly called a part of traditional or indigenous knowledge.9

The present legal regime in the field of traditional Knowledge is inadequate

and incomplete. The reason for this that the tribal people are placed in the

disadvantaged position and they are not in a position to enjoy benefit derived out of

their traditional knowledge. As many of the traditional knowledge like medicinal

plants, folk dance, handicrafts, their music, ceremonies and cultures are not

documented, there is scope for pirating of these by others including multinational

companies. These companies are making money by fully utilizing their knowledge
7
The Convention on Bio logical Diversity (CBD), 1992.
8
The Convention on Bio logical Diversity (CBD), 1992 Article 8(j).
9
Ibid.

5
without sharing the profit to them. Therefore, the government should take immediate

measures to document all type of traditional knowledge possessed by the tribal

people. If this is not done, then the big companies, at the cost of the tribal people,

would conquer the intellectual property of the tribal population.

There must be adequate sharing of profit for utilizing the traditional

knowledge for commercial purposes. Committees are to be constituted to promote and

preserve traditional knowledge. There must be an involvement of indigenous and

local communities in applying and utilizing their knowledge to the development of

new products. Protection of bio diversity and TK is the inevitable task before the

nations in the interest of mankind. There are many challenges before the third world

countries.

The Agreement on Trade Related Aspects of Intellectual Property recognises

the following categories of intellectual property: Patents Trademarks, Copyright,

Geographical Indication, Undisclosed Information, Layout design of integrated

circuits, Industrial designs.

The fact that traditional knowledge has not been covered under this agreement

has raised a host of questions and controversies. There are staunch arguments for as

well as against extending the protection provided in the existing seven categories of

intellectual property to traditional knowledge. These arguments have mainly been

moralistic or emotive in nature. The former focuses on the moral rights theory and

that every person should reap the benefit of his labour or creativity. The developing

countries have argued that their traditional knowledge has been the basis for the

research leading to high-priced inventions, the benefit of which is reaped by

6
developed nations. 10 The developing and least developed countries feel that this

knowledge is being plundered by the west and even more so because the developed

nations have refused to recognise TK as an intellectual property. The latter argument

focuses on the economic realities of the developing countries, with both developed

and developing nations accusing the other of pirating information.11

Protection of traditional knowledge is at initial stage in India. But whether

how far the existing provisions are adequate & effective necessitates a detailed study

of the provisions of the existing laws, and to suggest sui generis system, if necessary.

A local strategy must be made for the safety of traditional knowledge connected to

biodiversity including agriculture, medicine, and ecology; and, for the safeguard of

other conventional knowledge concerning folklore.

India does not have any specific regime related to traditional knowledge, but

laws adopted to effectuate liabilities under the Agreement on Trade Related Aspects

of Intellectual Property Rights (TRIPs), Convention on Biological Diversity (CBD)

and International Treaty on Plant Genetic Resources for Food and Agriculture

(ITPGRFA) have reiterated India’s position in various intergovernmental bodies

functioning on the protection of TK. India has adopted three interrelated legislations

on Intellectual Properties Rights, Plant Varieties and Biodiversity: the Patents

(Amendment) Act, 2005; the Protection of Plant Varieties and Farmers’ Rights Act,

2001 (PPVFR Act), and the Biological Diversity Act, 2002. There are strong linkages

between these three pieces of legislation and some over-lapping. Whereas the Patents

Act grants patents on plant breeder’s rights (PBRs) and the Biological Diversity Act

provides a mechanism for equitable sharing of benefits.

10
Craig D. Jacoby & Charles Weiss, “Recognizing Property Rights in Traditional Bio cultural
Contribution” 16 Stan Envtl. L. J. 74, 75-81 (1997).
11
David Downes, “How Intellectual Property Could Be a Tool to Protect Traditional Knowledge”, 25
Colum J. Envtl. 253, 254-57 (2000).

7
1.3 Research Hypothesis

• In contemporary times Traditional knowledge has got a lot of attention due to

its global utility. It has become a focus in international forums.

• The protection of traditional knowledge under intellectual property rights

(IPRs) has received lot of attention since the adoption of the Convention on

Biological Diversity (CBD) in 1992, but at times it is alleged that it falls short

in protecting the traditional knowledge in India.

1.4 Aims and Objectives of the Study

This study is carried out to achieve the following objectives:

• To study historical development of protection of traditional knowledge vis-à-

vis nature and scope of the rights of traditional knowledge holders.

• To study the international & national law developments relating to protection

of traditional knowledge protection and rights of the holders of traditional

knowledge.

• To make an elaborate study of the provisions of IPRs, CBD & TRIPs, so as to

find out the adequacy/inadequacies of the legal framework for protection of

traditional knowledge.

• To analyze the prevailing scenario, to derive findings, infer conclusions and

make suggestions.

1.5 Review of Literature

Review of related literature aims to acquire clear understanding of the basic

body of knowledge consisting of issues, facts, principles, theories, etc., in the problem

area. After discussing the existing laws on Intellectual Property in India an attempt

has been made to explore theoretical and practical literature and research studies on

the subject to form the foundations upon which this research work is built and also to

8
show the rationale of this study. It is pertinent to mention that no socio-legal research

work can be written without consulting latest books, articles, bare provisions, and

internet sources for related studies. The review of the existing literature not only helps

avoid repetition but also provides clarity of concept and better understanding of

different aspects of the subject.

Most of the literature available on Intellectual Property basically deals with

the historical background of the Intellectual Property Rights as well as laws regarding

Protection of Intellectual Property. There is also some literature available on the

guidelines for protection of traditional knowledge.

1. Books

(i) Achilladelis, Basil and Nicholas Antonak in their book, “Competition

Policy and Intellectual Property Rights in the Knowledge-Based Economy”

explained that the present global system for intellectual property protection as

designed in industrialization age in West and progressed according to the needs of

technically developed societies. But at present, local people, indigenous communities,

and authorities, mostly in developing countries, have demanded equal protection for

systems of traditional knowledge.12

(ii) F.M. Abbott in his book, “The WTO TRIPs Agreement and Global

Economic Development” explained that some commentators believed that the WTO

had taken the primary role governing the protection of international intellectual

property, while the WIPO had a secondary role, administering the conventions,

providing technical assistance and a forum for secondary rule change (WIPO-

administered conventions).13

12
Achilladelis, Basil and Nicholas Antonakis “The Dynamics of Technological Innovation: The Case
of the Pharmaceutical Industry”, 30 Research Policy, 233 (2001).
13
F.M. Abbott, The WTO TRIPS Agreement and Global Economic Development 72 (Chicago-Kent
Law Review,1996).

9
 (iii) Rama Sharma in his book, “Commentary on Intellectual Property

Laws” commented that various legislative enactments undoubtedly provides for the

creation of an efficient system for plant varieties protection, farmers rights and plant

breeders rights and to support the growth of fresh varieties of plants.14

(iv) Philippe Kullet and Radhika Kolluru in their book, “Plant Variety

Protection and Farmers’ Rights: Towards a Broader Understanding” explained

farmers’ rights on par with breeders’ rights.15

(v) Meetali Jain in her book, “Global Trade and the New Millennium:

Defining the Scope of Intellectual Property Protection of Plant Genetic

Resources and Traditional Knowledge in India” explained International Patent

Classification (IPC). This union has recommended further development of

classification tools for traditional knowledge and to investigate possible patent

classification aspects related to components of biodiversity and folklore.16

(vi) T. Apte in his book, “A Simple Guide to Intellectual Property

Rights, Biodiversity and Traditional Knowledge” “explained that protection of

traditional knowledge is generally not institutionalized: institutions to safeguard trade

secrets of indigenous and local peoples are either weak or absent in most countries. It

is therefore crucial that national legislation be enlarged to contain specific measures

that would enable indigenous and local peoples to apply trade secrets to protect their

knowledge and innovations. Such measures may include explicit articulation of

traditional knowledge as subject matter for protection through trade secrets. In

addition, there are a wide range of institutional barriers to the commercialization of

14
Rama Sharma, Commentary on Intellectual Property Laws 1539 (Wadhwa and Co. Nagpur, 2007).
15
Philippe Kullet & Radhika Kolluru, “Plant Variety Protection and Farmers’ Rights: Towards a
Broader Understanding”, XXIV Delhi Law Review, 50 (2002).
16
See Meetali Jain, “Global Trade and the New Millennium: Defining the Scope of Intellectual
Property Protection of Plant Genetic Resources and Traditional Knowledge in India” 13 Hastings
International and Comparative Law Review, 215 (1999).

10
traditional knowledge and innovations in modern economic space. For example,

current economic policies of most countries are inimical to the direct use of traditional

innovations and placement of such innovations on modern economic space.”17

(vii) K. Balasubramanian in his book, “Herbal Remedies: Consumer

Protection Concerns, consumers International” explained “communities may wish

to control all uses of their traditional cultural expressions, including works inspired by

them, even if they are not direct copies. Copyright law, on the other hand, permits

building on the work of others, provided there is sufficient originality. The text of the

legal instrument will have to define where the line is to be drawn between legitimate

borrowing and unauthorized appropriation.”18

(viii) C. Correa in his book, “Integrating public health concerns into

patent legislation in developing countries” gave explanation that decade after TK

emerged as an issue in the international agenda; little concrete progress has been

achieved only in the CBD frame work through the adoption of the Nagoya Protocol.

As the Nagoya Protocol requires ratification only by fifty states to come in to force, it

is more likely to come in to force in the near future since developing countries-

account majority of membership in the CBD- have more interest in the international

ABS regime. Whether it will be effective to the extent that fulfils the needs of many

developing countries is questionable, as the CBD still does not include US, the

alleged great Boucher of TK, as full member and considering resistance of other

developed states to see such kind of regime.19

17
Apte, T. A Simple Guide to Intellectual Property Rights, Biodiversity and Traditional Knowledge
341 (Kalpavriksh, GRAIN, and IIED, Pune/Delhi, 2006).
18
Balasubramanian, K., Herbal Remedies: Consumer Protection Concerns 241 (consumers
International, Penang, 1997).
19
Correa, C. Integrating public health concerns into patent legislation in developing countries 255
(South Centre, Geneva, 2000).

11
 (ix) D. Downes in his book, “Using Intellectual Property as a Tool to

Protect Traditional Knowledge” provides that developing countries raise TK in IP

as a negotiation strategy in response to developed countries demand to strength IPRs

protection, meaning they either can smooth the current level of protection given to

some fields they do not wish to extend protection- especially in pharmaceutical

products- or to halt further strengthen of existing IPRs.20

2. Articles

(i) Michael Balick in his article, “Traditional Knowledge: Lessons from

the Past, Lessons for the Future” provides that the (existing) intellectual property

framework laid the ground work for the TRIPs negotiations; its weaknesses were

basically the agenda of the negotiations.21

(ii) Simon Walker in his article, “The TRIPs Agreement, Sustainable

Development and the Public Interest” “provides that India nurtures practice of its

society for an era concerning 5,000 years. The antique scriptures of India encompass

of the 4 Vedas, 108 Upanishads, 2 epics, Bhagavad-Gita, Brahma sutras, 18 Puranas,

Manusmriti, Kautilya Shastra along with smritis. Organically, India is one of the 12

most biodiverse states globally. With merely 2.4% of the world's earth external, India

reports for 7-8% of the world's recorded species. The varied agro-climatic landscape

of India is a boon. The globe possesses 26 agro-climatic regions and merely India

possesses 16 agro-climatic regions. The varied agro-climatic zones of India initiate

from the Trans-Himalayan span to the seaside spans of Kerala, Andaman and

Nicobar, residence to a collection of medicinal floras such as grasses, bushes, tubers,

20
Downes, D., “Using Intellectual Property as a Tool to Protect Traditional Knowledge”, 3 Madrid:
Centre for international Environmental Law (CIEL) 256 (1997).
21
Balick, Michael, Traditional Knowledge: Lessons from the Past, Lessons for the Future 3, paper
presented at conference, Biodiversity, Biotechnology and the Protection of Traditional Knowledge,
(Washington University in St. Louis School of Law, Conference, April 4-6, 2003).

12
mangroves and rhizomes. The Indian Botanical Survey and the Indian Zoological

Study documented extra than 47,000 plant species and 81,000 species of faunas.”22

(iii) Gorjestani Nicolas in his article, “Indigenous Knowledge for

Development: Opportunities and Challenges” explain that during the last decade,

protection of biogenetic resources and associated TK has attracted much attention of

the international community and the questions of whether and how to protect TK have

been of increasing practical concern for national policy makers in many countries.

Some countries have ventured to enact specific laws for the protection of TK. The

legislative endeavor of these countries provides certain legal mechanism to recognize

and protect TK base of the country and indigenous and local community’s rights over

TK. However, the need to address the issue regarding violation of TK within the

existing IPR regime and the need to afford positive protection to TK call for further

development and implementation of TK initiatives at the international level.23

(iv) R.S. Crespi, in his article, “Patents and Plant Variety Rights: Is

there an Interface Problem?” presume that in the case of a sui generis system, what

was contemplated by number of negotiators was a UPOV-type protection.24

(v) Dutfield in his article, “Can the TRIPs Agreement Protect

Biological and Cultural Diversity?” explained Article 1 of the TRIPs Accord (on

the nature and extent of obligations) gives a little elasticity in the execution of abilities

of the Agreement. It states in paragraph 1 of that article that associates could, but will

not be obliged to apply, in their internal legislation, an extra comprehensive protection

than that needed by the Agreement, endowed that such protection does not breach the

22
Walker, Simon, “The TRIPs Agreement, Sustainable Development and the Public Interest A
Discussion paper” 41 INCU Law and Policy 36 (1997).
23
Nicolas Gorjestani, “Indigenous Knowledge for Development: Opportunities and Challenges”, Paper
presented at UNCTAD Conference on Traditional Knowledge in Geneva, Nov 1, 2000).
24
R.S. Crespi, “Patents and Plant Variety Rights: Is there an Interface Problem”, see also S.K Verma,
“TRIPs and Plant Variety Protection in Developing Countries”, 51 (1995).

13
Agreement abilities. It states that lack of remark of traditional knowledge in the

Accord does not stop each Associate from ratifying legislation to guard such a group

of knowledge.25

3. Miscellaneous

(i) Websites

Many websites like world intellectual organization, traditional knowledge

digital library, Intellectual Property Rights commission, etc. were visited and

consulted for latest information on various issues; a detailed list of all these websites

is given in the internet reference section of the bibliography.

(ii) Newspapers

Some national dailies like The Hindu, The Financial Express, The Economic

Times, The Hindustan Times etc. were also overviewed on day to day basis for latest

news regarding IPR and Traditional Knowledge in India. A list of these dailies is also

given in the newspaper section of the bibliography.

(iii) Reports

There are some renowned committees’ reports as international and national

level for example: WIPO Report on Fact- Finding Missions on IP & TK, Report of

Commission on IPR, Report of Indian Drugs & Pharmaceuticals Limited, New Delhi.

All these committees reports relates to the rules and regulation regarding Intellectual

Property and Traditional Knowledge.

(iv) Journals

Various journals like Indian Journal of Legal Studies, Indian Journal of Public

Administration, Indian Socio-Legal Journal, Journal of Constitutional and

Parliamentary Studies, Journal of Indian Law Institute are consulted for the research

25
Dutfield, Can the TRIPs Agreement Protect Biological and Cultural Diversity? 16 (Bio policy
International ACTS Press, Nairobi, 1997).

14
and some important research papers has been taken from the journals to make the

study more effective.

During review of existing literature available in form of books, articles, on

line resources, newspaper, reports, journals, etc., it is found that there is lack of

sufficient legislation for protection of tradition knowledge in India. Thus, literature

review provided further scope of research and analysis which is covered under this

research work.

1.6 Research Methodology

Research is a careful study of a subject, especially in order to discover new

facts or information about it. Through research men have explored the unexplored for

making human life more comfortable and purposeful. Thus, the urge to re-examine

and re-evaluate the world around may rightly be called research.

As an academic activity research has been defined as “a studious inquiry or

examination; especially critical and exhaustive investigation or experiment having for

its aim the discovery of new facts, and their correct interpretations, theories or laws in

the light of newly discovered facts, or practical applications of new or revised

conclusions, theories, or laws”.26

Methodology on the other side is logic behind scientific investigation.

Methodology means description, explanation, and justification of methods and not the

methods themselves. It is a plan and procedure for carrying out research. It refers to

research techniques and strategies for obtaining valid information. In the social

sciences, the term applies as to how one conducts research.

Bogdan and Taylor stated that the term ‘methodology’ in a broad sense refers

to techniques, the processes, principles, procedures and frames of reference by which

26
Webster, “Third New International Dictionary of the English Language”, 2 G and C Merriam
Chicago 130 (1981).

15
one approaches the problems and seeks answers 27 . It is the essence of scientific

investigation. In the social sciences, the term applies as to how one conducts research.

Kothari observed that methodology in practice lays down the procedures or steps that

are generally adopted by a researcher in studying his research problems. These

procedures are justified by means of philosophical arguments and methods of

scientific observations28. Goode and Hatt stated that scientific method is the gateway

to explore the truth by way of systematic verifiability, generality, predictability and

objectivity.29

1.6.1 Research Design

This study has been designed keeping in view the objectives, scope as well as

research questions of the study. The methodology of research differs according to the

subject and problem under study. This study is doctrinal in nature.

Doctrinal or library based research is the most common methodology

employed by those undertaking research in law. This is so because, legal rules take

the quality of being doctrinal since they are meant to be the rules that apply

consistently and which evolve organically and slowly. It follows that doctrinal

research is a research into the law and legal concepts. This method has dominant

influence in the 19th and 20th century on the views of legal scholars and jurists and it

still tends to dominate legal research designs.30

The term ‘doctrine’ includes legal concepts and principles of all types- cases,

statutes and rules. It can be defined as a synthesis of rules, principles, norms,

interpretive guidelines and values. It explains and justifies through systematic

27
Robert Bogdan & Stephen J Taylor, Introduction to qualitative research methods: A
phenomenological approach to the social sciences, 1(John Wiley, New York, 1975).
28
C.R Kothari, Research Methodology: Method and techniques 1(Wiley Eastern, New Delhi, 1985).
29
William J Goode & Paul K Hatt, Methods in Social Research 35, (Mc Graw Hill, New York, 1952).
30
http://www.eprints.qut.edu.au. (Visited on March 12, 2016 at 6:30 P.M).

16
coherence, a segment of law as part of a larger system of law. Doctrines can be

abstract, binding and non- binding.31

Doctrinal Legal Research, as conceived in the legal research domain, is

research ‘about’ the prevailing state of legal doctrine, legal rule, or legal principle. A

scholar undertaking doctrinal legal research, therefore, takes one or more legal

propositions, principles, rules or doctrines as a starting point to focus his study on the

theme. It provides for systematic exposition of the rules governing a particular legal

category, analyze the relationship between rules, explain areas of difficulty and,

perhaps, predict future developments.32

Doctrinal Legal Research has a number of advantages to its credit. It is a

systematic, logical and reliable study and helps in theory building. Since, it involves

deep study of law and legal principles; it helps in development and improvement of

law also. In this context, evolution and development of law of torts and administrative

law stand as classic testimony of doctrinal legal research.33 Apart from this, it is a

cheap and time saving and provides sound basis for non-doctrinal legal research also.

1.6.2 Sources of Data

The present research study is doctrinal and non-empirical research which does

not need any field data or sample collection. The data collection is limited to only

primary and secondary sources as follows:

(i) Primary Sources: It includes the study and analysis of legal regime related to

traditional knowledge, the relevant legislation, rules, notification, bylaws, orders,

various landmark judgments, etc. All primary sources are studied from analytical

view point.

31
Tricia Mann, Australian Law Dictionary 197 (Oxford University Press, 2010).
32
http://lawteacher.ac.uk/docs/hitchinson_and_duncan.ppt. (Visited on March 20, 2016 at 3:00 P.M).
33
http://chilot.files.wordpress.com/2011/06/legal-research-methods.pdf (visited on April 14, 2017 at
10:00 A.M).

17
(ii) Secondary Sources: The present research work includes the detailed analysis of

different kinds of secondary resources related to traditional knowledge. It includes

texts from legal and non-legal sources, relevant articles, reports, research papers

related to different aspects of traditional Knowledge.

1.7 Scheme of Study

The main body of the thesis will be organized in the fashion that would give

clear and coherent understanding of the general message of the study, dividing it into

six chapters. In order to avoid redundancy of discussion, citations will be used to

make cross reference to other relevant sections. The present research work is divided

under the following rubrics:

Chapter 1 Introduction

This chapter is designed to draw on the reader, the general picture of the study.

And it gives an insight about the general background, statement of the problem,

research hypothesis, aims and objectives sought to be achieved, review of literature,

research methodology used.

Chapter 2 Meaning, Nature, Scope and Historical Background of Traditional

Knowledge

This chapter explains the meaning, definitions, nature, scope, importance and

historical background of traditional knowledge.

Chapter 3 Need for Legal Protection of Traditional Knowledge

This section includes discussion about why there is a need to legally protect

TK, and what can be achieved. Thus at the forefront of this chapter the main

arguments for legal protection will be considered. Subsequent to that different

modalities of protection proposed and adopted will be discussed. The topic entitled IP

and TK, after brief examination of the major objections will raise to IP protection of

18
TK, explore and test the potential and legal difficulties in applying different IPRs in

particular patents, trade secrets, trademarks and geographical indications to protect

TK. Similarly, with in the matrix of IP system defensive protection of TK from

misappropriation will be briefed.

Chapter 4 Protection of Traditional Knowledge: International Perspective

The discussion on the international benefit sharing regime out of the

utilization of TK will also be made, along with the discussion on progresses made in

the CBD (Convention on Biological Diversity) and initiatives undertaken by WIPO

(WIPO - World Intellectual Property Organization). The other strategy that will be

proposed has been debated in different international forum and even adopted in some

countries is sui generis system of Protecting TK, which will be discussed in the same

chapter together with highlighting experience of other countries and initiatives of

different international organizations.

Chapter 5 Judicial Trends Relating to Protection of Traditional Knowledge:

Indian Perspective

This chapter specifically discusses protection of TK including judicial

perspectives in India. The chapter shall begin with description of TK system of India

and its role. In the next subsection expectations of TK holders and the objectives India

needs to secure from protection of TK will be ascertained in a manner that aims at

furthering an understanding on what should be the direction of protection. It is

essential to examine the current policy, legal and institutional mechanisms and other

practical efforts made relevant to the protection of TK, to see what has been done and

provided and what is missing and what shall be done. Therefore, the thesis in this

chapter will systematically try to unpack the problems inherent in the current legal

system and test the feasibility of other possible modalities of TK protection and also

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their efficacy in achieving the stated objectives. After all, it shows alternative

approaches that could be employed to protect TK in India.

Chapter 6 Conclusion and Suggestions

Finally, the main findings of the study will be stipulated and by way of

conclusion and suggestions indication of the potential solutions for the major

problems will be made, under the heading conclusion and suggestions.

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