PROTECTING TRADITIONAL KNOWLEDGE IN INDIA AND

PERU: LEGISLATIVE ANALYSIS & THE DILEMMA OF SUI

GENERIS PROTECTION

1.1) Introduction

Traditional Knowledge and it’s protection via Legislation has been highly debated on
national as well as international forums and here has been no universally accepted definition
of Traditional Knowledge till date.1 However, Traditional Knowledge can be broadly
understood to be the Knowledge of the Indigenous Peoples which they have accumulated
over generations and that is developed by their ancestors and as Indigenous Peoples are more
in tune with the natural habitats, their Knowledge is mostly derived from their interactions
with the nature.2 They have rich knowledge in the realm of bio diversity, environmental
conservation, medical systems (traditional) and medicinal plant systems, politico-social
systems, and other related areas.3

A unique characteristic of Traditional Knowledge is that it is owned by a community or a

tribe or a particular group.4 As it is Knowledge and a highly valued one at that, it’s protection
under the Law becomes very essential. However, protecting it via the Law becomes tricky as
it is difficult to define owing to it’s complicated, unique and diverse nature. Another problem
in legislating on Traditional Knowledge which can identified at the outset is that it is the
property of a community and not an individual and here, the problem of rightful ownership,
prior informed consent, etc comes up. A major problem is that the Indigenous Peoples, more
often than not, are not aware of their Rights and the commercial importance of their
Knowledge and the kind of monetary and other benefits, their Traditional Knowledge can
fetch them.5

1
S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 3 (2nd ed, Oxford University Press, 1996).
2
UNPFII, Indigenous Peoples, Indigenous Voices (Factsheet) available at
https://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf (last visited on May 18, 2019).
3
Id.
4
WIPO, Traditional Knowledge, available at https://www.wipo.int/tk/en/tk/ (last visited on May 18, 2019).
5
World Intellectual Property Organization, Minding Culture: Case study on Intellectual Property and
Traditional Cultural Expressions (2003) https://www.wipo.int/edocs/pubdocs/en/tk/781/wipo_pub_781.pdf (last
visited on May 18, 2019).
There are many countries in the world which are home to Indigenous Peoples and thus,
repositories of Traditional Knowledge. India has a vast & diverse collection of Traditional
Knowledge6 and when this TK leads to commercial gains, it needs to be given protection for
the purposes of equity considerations, conservation concerns, preservation of traditional
practices and culture and the prevention of unauthorized use. Another such country is Peru.
By virtue of being placed in the Amazon region, it is very rich in Traditional Knowledge
related to bio diversity, flora, fauna, etc.7

This research aims at bringing out the importance and relevance of Traditional Knowledge in
this time and era. It tries to arrive at a conclusion as to how efficient is the current legislative
framework in protecting Traditional Knowledge and the related rights of the Indigenous
Peoples/holders of the said knowledge and whether sui generis protection to Traditional
Knowledge is the method to achieve efficient protection to it. It looks at the legislative
frameworks of India and Peru and draws a comparison between the two for arriving at the
aforementioned conclusion.

1.2.1) Statement of Problem

Unlike other Intellectual Property Rights, TK is a community based right. It is also not
necessarily novel and non obvious. There are other ways in which a TK is different from a
more conventional intellectual property. So, when TK is exploited for profits, it is highly
likely that benefit sharing and other such considerations are ignored because of the absence of
the unique nature of protection that TK requires. The current legal framework in India needs
to be looked at to arrive at a conclusion for determining whether it is enough for efficiently
protecting TK.

6
Prof S. Kannaiyan, Biological Diversity and Traditional Knowledge presented at National Consultation
Workshop on Agro biodiversity hotspots and Access and benefit sharing (Annamalai University, Chennai, July
19-20, 2007) available at http://nbaindia.org/uploaded/docs/traditionalknowledge_190707.pdf (last visited on
May 18, 2019).
7
Susanna E. Clark, Protection of Traditional Knowledge in Peru: A Comparative Perspective, 3 WASHINGTON
UNIVERSITY GLOBAL STUDIES LAW REVIEW 755-797, (2004).
1.2.2) Research Questions

a) Whether the current legislative framework is enough to address the problems of

protection of TK effectively?

b) Whether sui generis protection is the answer?

1.2.3) Methodology

Doctrinal legal methodology will be used for carrying out this research. Analytical method
will be used to identify what law currently is and to evaluate it’s efficiency. Comparative
method will be used to determine if Peru provides better protection to their TK via sui generis
protection as opposed to India which does not provide comprehensive sui generis protection
to TK.

1.2.4) Chapterisation

In this research, Chapter 2, titled ‘Introduction’, in it’s various parts, deals with the meaning
of Traditional Knowledge, tries to trace the evolution of jurisprudence about legislating on
Traditional Knowledge on the global level, the actual problems and intricacies in defining
Traditional Knowledge, the importance of Traditional Knowledge and why it needs to be
protected and in the last part, Chapter 2 talks about the three major international instruments,
namely, The Convention on Biodiversity, Agreement on Trade Related Aspects of
Intellectual Property Rights and the Patent Cooperation Treaty, which deal with Traditional
Knowledge.

Chapter 3, titled ‘Traditional Knowledge in India’ talks about the importance of Traditional
Knowledge in the Indian scenario, it also tries to bring out the economic importance of
Traditional Knowledge in India, it discusses the most controversial cases of exploitation of
Indian Traditional Knowledge, namely, the case of Turmeric, Neem and Basmati, by parties
situated in other countries. In it’s last part, the Chapter discusses and analyses the Indian
Legislative framework related to Traditional Knowledge.
Chapter 4, titled, ‘Peruvian Traditional Knowledge Protection Approach’, analyses the
sui generis regime for protection of Traditional Knowledge related to biological resources.

Chapter 5, titled ‘Comparative analysis of legislative frameworks of India & Peru’

compares the legislative frameworks of India and Peru on specified parameters and tries to
bring out the positives and negatives of each system.

Chapter 6, titled ‘Conclusion’ puts forward the findings of the comparison and attempts to
answer the questions that (a) whether the current legislative frameworks suffice the purpose
of effectively protecting Traditional Knowledge via Legislation and, (b)whether sui generis
protection is the solution for a pragmatic and effective protection of Traditional Knowledge.

1.2.5) Report of Literature Review

Madhavi Sunder in her work ‘The Invention of Traditional Knowledge’ (2007), gives a
detailed account of the history and negotiations that took place in the international arena, for
the protection of TK. Her research tries to define what TK is. It also talks about the different
international instruments that are in place for protection of TK. She tries to bring about a
relationship between IP for Indigenous Peoples & their development. She makes a case for
protecting public domain & she says that often the benefit of open access goes to the rich.
She gives examples of a rich heritage of TK in India. This research gives out many political
accounts of issues related to TK & it’s protection.

Vandana Shiva in her work ‘Protecting our Biological and Intellectual Heritage’ (1996)
and J. Janewa Oseitutu in his work ‘Traditional Knowledge: Is Perpetual Protection a
Good Idea’ (2010) have also admirably tried to define Traditional Knowledge. They have
provided wide and inclusive definition which consider medicine systems, traditional farming
practices, dances, sings, folklores, rituals, literature and much more, to be Traditional
Knowledge.

William Fisher in his work, ‘Two Thoughts About Traditional Knowledge’ (2007), links
the ignorance & exploitation of TK to the Imperialistic doings. It has been written as a
response to Madhavi Sunder’s views. He lays down how all of the Imperialistic atrocities
should be taken into account and from this point of view, the holders of Traditional
knowledge should be given more leverage in interacting on the international level for the
protection of their TK. He argues that TK is ever evolving and unique in nature and thus
needs a unique protection too. He also argues for a more complex and variegated norm for
TK, rather than a global regime which will be dominated by multilateral treaties & this
according to him will not provide TK with the desired protection. He goes on to suggest a
few changes that could be made to the existing TRIPS.

William Fisher’s view is also supported by Gregory Younging in his work, ‘Traditional
Knowledge Exists; Intellectual Property Is Invented or Created’ (2015) and Graham
Dutfield in his work, ‘TRIPS-Related Aspects of Traditional Knowledge’ (2001). They are
of the view that the Imperialistic powers have played a major role in exploiting and the
Knowledge of the Indigenous Peoples. The problem of Traditional Knowledge however
resurfaced and gained international recognition from the late 1980s. This was an after effect
of the Second World War as the World had to turn to more sustainable and natural ways of
development.

Dr. Ghazala Javed’s research titled ‘Protection of Traditional Knowledge: Initiatives of

India, WIPO’, analyses the legislative framework in India with respect to TK, in detail. It
talks about the National IPR Policy, 2016 of India.

WIPO, in it’s magazine titled ‘Protecting India’s Traditional Knowledge’(2011), gives an

account of the significance of TK in India. It chronologically talks about the initiatives that
have been undertaken in India for the protection of TK. It talks in detail about the TKDL
(India’s global bio piracy watch system). It gives accounts of successes of the TKDL & it’s
impact on bio piracy.

Dr. Balavanth Kalaskar, in his work, ‘Traditional Knowledge and sui generis Law’ (2012),
gives out the difference between a sui generis system & an IP Patent system. He talks about
the relationship between sui generis protection & IPR laws. He also talks about how
international instruments encourage the establishment of sui generis regimes.

Susanna E. Clark, in her research, ‘The Protection of Traditional Knowledge in Peru: A

Comparative Perspective’ (2004), talks about the legislation in Peru. She gives a detailed
analysis of the same. Her work gives an analysis of the important provisions, explains the
purpose, objective, etc of the law. It also makes a comparative analysis of sui generis
protection of TK in many countries, including India.

The contribution by WIPO in the form of a comparative study titled ‘Comparative

Summary of Existing National sui generis Measures and Laws for the Protection of
Traditional Knowledge’ (2003), is a very detailed account of the existing sui generis
regimes of the world. Among other nations, it talks about the sui generis protection in Peru
via the specific Act for such protection there. It also talks about the Biological Diversity Act,
2002 in India. It is a comprehensive analysis which talks about the benefits, legislations,
tools, implementation, etc. It also talks about the institutional initiatives for TK in Peru. It
gives a critical aspect of the Peruvian law too.

Rohaini in her work, ‘Establishing the sui generis laws for Protecting Traditional
Knowledge in Indonesia’, (2015) talks about designing a Sui generis protection law. She
gives out the considerations about subject matter, policy objective, beneficiaries of
protection, etc.

Srividhya Ragavan in her work, ‘Protection of Traditional Knowledge’ (2001), discusses

the problems faced in trying to protect TK via legislation. She argues that developed
countries do not concern themselves much with the rights and issues of Indigenous Peoples
and their Knowledge. She also suggests that in order to protect Traditional Knowledge, the
developing countries need to be armed with a better and stronger bargaining power. She
states that the recognition, respect and inclusion of Traditional Knowledge and Indigenous
Peoples will promote the need for strong Legislations protecting TK. In a way, she advocates
for custom legislations (sui generis) for developing countries because in her view, imposing
the framework of the developed countries on to the developing countries would defeat the
purpose of recognizing the unique nature of TK and might also prove to be counter
productive.

S. James Anaya in his book, ‘Indigenous Peoples in International Law’ (1996), argues
against the forced main streaming of Indigenous Peoples into the society is undesirable and
they should be included while keeping their distinct identity intact. He propagates that there
is no universally accepted definition of Indigenous Peoples but they can be understood to be
people who are in a more disadvantageous position as compared to the people living around
them. They are economically and socially handicapped as their cultural identities are at stake.