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Examining Traditional Knowledge Through the Lens of IP Law


The cornerstone of cultural patrimony is traditional knowledge. The bulk of indigenous and local communities can be discovered in the most bio-diverse and diversified places. For them, the natural world is a way of life and an integral component of their ethnic identity. Traditional knowledge regarding conservation and sustainable use is often part and parcel of the lifestyles of indigenous groups. It has also generally been a commonly accessible treasure, making it prone to misappropriation.

Information structures of traditional knowledge are a critical component in achieving sustainable development. Furthermore, traditional knowledge plays an important role in the preservation of the social and physical environment of the local residents. Attempts to utilize traditional expertise for industrial or commercial gain might lead to the misappropriation of the expertise’s legitimate owners. As a result, it is critical to establish methods for preserving and maintaining traditional knowledge in order to ensure that sustainable development is compatible with traditional knowledge interests.

traditional knowledge, medicine

What is Traditional Knowledge?

Traditional knowledge is defined by WIPO (World Intellectual Property Organization) as “knowledge, skills, practices, and know-how that are developed, perpetuated, and passed down from generation to generation within a community, frequently as part of the community’s cultural or spiritual identity.

Although there is no universally-agreed definition of TK, the following can be stated:

1. In a broad sense, TK accepts both information as well as common cultural manifestations, such as TK-specific signs and symbols.

2. In a strict sense, TK refers to knowledge in general, and in particular knowledge derived from traditional intellectual effort, such as know-how, habits, skills, and inventions.

The fact that TK has an ancient origin and is largely oral is its most important feature. Knowledge, however, is considered traditional not because of its age, but because it was generated, conserved, and transferred within a traditional culture, and is passed down through generations. Frequently, this is done through unique and customary knowledge transmission mechanisms. It is thus traditional because of the knowledge-to-community link. TK is culturally relevant, contextually relevant, dynamic, and adaptable.

Protecting Traditional Knowledge

With the passage of time, the necessity to conserve traditional knowledge has grown, particularly in order to prevent unauthorized and commercialized usage of such knowledge. It is critical to safeguard indigenous peoples from such extinction while also assisting them in the preservation of historic rituals. The protection of such knowledge must also encourage its widespread and efficient usage.

The most challenging part of Traditional Knowledge is safeguarding it. Traditional knowledge has been debated as a candidate for protection under the IP regime, but this poses a number of issues, including:

  1. which IP can protect traditional knowledge, and
  2. how will traditional knowledge be protected indefinitely, given that IP protection is only granted for a limited period of time.

Traditional Knowledge can be protected in two distinct ways

  1. Positive Protection- involves implementing laws, rules, and regulations to preserve TK, such as access and benefit sharing provisions, royalties, and so on.
  2. Defense Mechanism- means taking actions to keep intellectual property rights over traditional knowledge from being acquired. These “rights” include –
  3. In the patent application, there is a provision for disclosure of the origin of genetic resources and related traditional knowledge relevant to the invention.
  4. Creating a database with complete information on conventional knowledge in a scientific and technical style that is accessible to patent examiners. A database like this will aid in determining the uniqueness of the invention in question.

India, for example, has created a searchable database of traditional knowledge that patent examiners can use as proof of previous art when assessing patent applications. This followed a well-known instance in which the US Patent and Trademark Office granted a patent (later canceled) for the use of turmeric for wound healing, a property well-known in traditional Indian civilizations and documented in ancient Sanskrit writings. Sacred cultural expressions, such as sacred symbols or words, could likewise be protected from trademark registration via defensive techniques.

Although the digital library contains a large number of documents and works related to Indian traditional knowledge, it has its own drawbacks, such as translation issues, disclosure of traditional knowledge as prior art being unfavorable because it leads to public disclosure of all traditional knowledge (which leads to fishing expeditions), and one of the major aspects of traditional knowledge being that it is mostly passed down through generations orally.

Legislation to Protect Traditional Knowledge

Unlike other types of intellectual property rights, India does not have a constructive act or law to safeguard traditional knowledge. Other IP have, however, picked up some of the slack, such as the Patents Act of 1970, Section 25 and Section 64, which lists traditional knowledge as one of the grounds for revocation of a patent application. The Copyright Act of 1957 does not specifically mention protecting traditional cultural, literary, or artistic work or folklore, but Section 31A does provide some recourse for the protection of works of unknown authorship. However, Copyright protection is only for a limited time period and requires certain criteria to be met, so traditional knowledge protection under this IP is limited.

The Need for Sui Generis Protection

Since IP protection has its own drawbacks and flaws, there has been a growing need for a Sui Generis method of protection for traditional knowledge. Sui Generis is a Latin term that means “of one’s own kind.” Sui generis instruments will establish a legal framework for the protection of traditional knowledge, the enforcement of indigenous groups’ rights, the prevention of TK misuse and control, and the provisions of the ABS (access and benefit sharing) system, among other things.

In addition to the TKDL system, India can take a more proactive approach, with the goal of raising awareness and understanding among those who are now uninformed of or have only rudimentary knowledge of Intellectual Property Rights and the term “traditional knowledge.”

Author: Medha Mukherjee, Legal Intern at PA Legal.

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