THE CURRENT LEGAL SYSTEM ON TRADITIONAL KNOWLEDGE

PROTECTION

In the year 2001theWIPO held meeting to draft certain safeguards in order to ensure that
there is no misuse of traditional knowledge or any commercial exploitation through acts of
bio piracy1. A stated earlier there is no clear definition as to what falls under the definition of
traditional knowledge but there is a wide spread idea that any knowledge or practice followed
by the indigenous people of that. The main issue that keeps arsing is at an international level
how we should protect traditional knowledge. There has been discussion as to protection of
traditional knowledge through a unique system of protection. There are certain implied
protection granted foe example under the sec .3(1) of TRIPS which mandates the member
nations to ensure that equal treatment is granted even to the other member states like it gives
under its own national law the principle applied irrespective to the fields and therefore if a
country A grants its indigenous community traditional knowledge protection under its
national laws then the same should be accorded to its member states. Apart from this
protection the most important one is granted by the central body in bio diversity under
section. 8(j) there has been a requirement placed that everybody should strive to preserve and
protect and make sure that the indigenous knowledge of the community is maintained which
help in development of a sustainable environment as well as healthy lifestyle though this law
is subject to the national laws of the state the centre has requested all the member states to
abide by the rule as it will lead to sustainable development of bio diversity as well as human
life2. The Nagoya protocol also related to the concept of benefit sharing for traditional and
genetic resources based knowledge under this protocol there is a mandate that the state using
the resources should inform the other state and get prior consent before starting any research
or seeking patent and also should share the benefits arising out of the same3. Also under
section. 10 (c) the law encourages the usage of traditional practices to use the natural
resources similarly under section. 17(2) and 18(4) there has been recognition granted to the
upliftment of traditional knowledge by encouraging exchange of information regarding the
same, India taking this into consideration has taken up initiatives to build up the traditional
knowledge based digital library which will ensure cooperation among the states and the
communities. When the WIPO Marrakesh treaty was framed special rights where granted to
the indigenous community as to protection and preservation of genetic and other resources
followed through their traditions under Article.31 of WIPO declaration for protecting the
indigenous community. Therefore at an international level if we have to protect traditional
knowledge then we need to ensure a proper informative database like the one is building the
traditional knowledge digital library which will prevent the third parties from acquiring IPR
over it as this will make the knowledge a part of prior art4.

1
See WIPO, Traditional Knowledge, Genetic Resources, and Traditional Cultural Expressions/Folklore,
Overview, http://www.wipo.int/tk/en/
2
See, section. 8(j), 10(c), 17(2) and 18(4) of Convention on Biological Diversity at: https://www.cbd.int/
3
See, section 7,11,16 of Nagoya Protocol at: https://www.cbd.int/abs/
4
See, WIPO ―Intellectual Property Needs & Expectation of Traditional Knowledge Holders‖ WIPO Report on
Fact- Finding Missions on Intellectual Property & Traditional Knowledge (1998- 1999).
http://www.wipo.int/edocs/pubdocs/en/marks/835/pub835.pdf
If we look at India, we have taken many steps to protect the traditional knowledge after the
long battle of patenting of Neem , Turmeric, Basmati and many other such medicinal and
agro plants and resources India decided to build up a strong stand against the bio-piracy
issues. Therefore, in the year 2002 the Patent Amendment Act was brought and section. 3(j)
was added which stated that no plant variety and seed shall be patentable the motive behind
doing so was India found the need from the fact that though CBD was encouraging traditional
knowledge protection and bringing up protocols the TRIPS was silent on the same and hence
in order to ensure that there is no bio piracy section 3(p) was brought which stated that if an
invention is made using the traditional knowledge as separate or in combinations they shall
fall under non patentable inventions also in any case if there is a grant then the patentee who
is applying for patent for the invention should disclose and mention the geographical origin
of the invention used materials therefore the criteria of complete disclosure was strictly to be
followed5. Therefore any form of violation by not disclosing the right information about the
invention will be a ground for opposing the granting of patent6. Therefore India took certain
amendments and initiatives like Digital library for protecting the traditional knowledge for
ensuring the protection of interest of the community of its country and make sure there is fair
benefit sharing and no misuse of the traditional knowledge through commercialization and
exploitation of resources7

5
See also, sec.10(4)(D) of Patent Amendment Act,2002.
6
Sec. 25(j) of the Patent Amendment Act, 2002
7
Report of Working Group on Indigenous Populations in its 11th Session, E/CN.4/Sub.2/1993/29/Annex 1.23
August 1993, http;//www.cswis.org/fwdp/drft9329.html