SCHOOL OF LAW

PONDICHERRY UNIVERSITY
Kalapet, Puducherry-605014

FIRST DRAFT
TRADITIONAL KNOWLEDGE
TOPIC- “INTERNATIONAL DEVELOPMENT OF TRADITIONAL
KNOWLEDGE PROTECTION AND TK REGIME IN INDIA”

SUBMITTED BY: SUBMITTED TO:

ANWER HUSSAIN AZAD
REG. NO: 19312001
COURSE: LL.M.
SESSION: 2019-20
Dr. G. SUBHALAKSHMI
FACULTY SCHOOL OF
LAW
 1. INTRODUCTION
Traditional knowledge (TK) is a valuable knowledge. This knowledge developed over
generations by local communities in various parts of the world. This knowledge is validated
over time; in a way it is different to the western empirical system. Traditional knowledge has
been developed in many fields and is still evolving.

There is not a particular agreed definition for traditional knowledge. WIPO in its fact-finding
mission report, uses the term traditional knowledge to refer to “tradition-based literary, artistic
or scientific works, performances, inventions, scientific discoveries, designs, marks, names and
symbols, undisclosed information and all other tradition-based innovations and creations
resulting from intellectual activity in the industrial, scientific, literary or artistic fields”1

The current international system for protecting intellectual property was fashioned during the
age of industrialization in the West and developed subsequently in line with the perceived
needs of technologically advanced societies. However, in recent years, indigenous peoples,
local communities, and governments, mainly in developing countries, have demanded
equivalent protection for traditional knowledge systems. In 2000, WIPO members established
an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore (IGC), and in 2009 they agreed to develop an international legal
instrument (or instruments) that would give traditional knowledge, genetic resources and
traditional cultural expressions (folklore) effective protection. Such an instrument could range
from a recommendation to WIPO members to a formal treaty that would bind countries
choosing to ratify it.2

Recognizing traditional forms of creativity and innovation as protectable intellectual property

would be an historic shift in international law, enabling indigenous and local communities as
well as governments to have a say over the use of their traditional knowledge by others. This
would make it possible, for example, to protect traditional remedies and indigenous art and
music against misappropriation, and enable communities to control and benefit collectively
from their commercial exploitation.

1
Traditional Knowledge, Terminology, WIPO Report on Fact-Finding Missions
on Intellectual Property and Traditional
Knowledge (1998-1999), P 22
2
Background Briefs, WIPO, www.wipo.int , referred from:
https://www.wipo.int/pressroom/en/briefs/tk_ip.html
Two types of intellectual property protection are sought.

Defensive protection 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. This followed a well-known case in which the US Patent
and Trademark Office granted a patent (later revoked) for the use of turmeric to treat wounds,
a property well known to traditional communities in India and documented in ancient Sanskrit
texts. Defensive strategies might also be used to protect sacred cultural manifestations, such as
sacred symbols or words from being registered as trademarks.

Positive protection is the 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. However, any specific
protection afforded under national law may not hold for other countries, one reason why many
indigenous and local communities as well as governments are pressing for an international
legal instrument.

International organisations, Conventions and instruments that played crucial role in

International development of Traditional Knowledge protection are as follows; World Health
Organisation; WIPO- UNSESCO- Model Provisions for National Laws on the Protection of
Expressions of Folklore against Illicit Exploitation And Other Prejudicial Actions, 1985; Food
and Agricultural Organisation; Convention on Biodiversity, 1992; WIPO Fact finding Mission,
1998; International Union for Protection of Plant varieties Convention, 1992;
Intergovernmental Committee (IGC), 2001; 2011-2020 Aichi Biodiversity Targets etc. In this
research paper we will chronologically study the role of each International organisations,
Conventions and instruments in development of an International regime focused on protection
of Traditional Knowledge and for that enabling sui-generis legislations in countries.
 2. NEED AND SIGNIFICANCE

To study the legal implications and effectiveness of International organisations, Conventions

and other international instruments in ensuring the effective protection of traditional knowledge
(TK) researcher has decided to write an exhaustive paper on this subject. This paper is
significant in highlighting the areas which are crucial and that need more focus of WIPO and
other organisations and Conventions, like ‘formalizing Traditional Knowledge just as other
Intellectual Properties’ and ‘empowering and sharing due profit with the locals and indigenous
people who holds the legacy of this knowledge’ and ‘Tribal Rights’.

3. OBJECTIVE

In a time of privatisation and proprietorship over every other thing we see readily available
around us and including ideas and knowledge are also being recognised and persons are being
given exclusive rights over it for commercial exploitation, Traditional Knowledge stands out
for its peculiar nature even after being an intellectual property. Hence Objective of this paper
are as follows:-

1. To study the legal implications of International organisations, Conventions and other

international instruments in protection of Traditional Knowledge
2. To study the role played by such organisations in formalizing Traditional Knowledge
as an Intellectual Property
3. To study that up to what extent these international instruments and bodies have
succeeded in protecting the rights of Tribal peoples and interests of indigenious
populations over TK and related rights.

4. REVIEW OF LITERATURE

Book by Tragi L. Mcclellan titled “The role of International Law in Protecting the Traditional
Knowledge and Plant Life of Indigenous peoples” has been used as a reference source on the
subject of TK and Indigenous people’s right. Ashish Kothari’s article of 2007 titled
“Traditional Knowledge and Sustainable Development” has been picked for reference on the
topic of TK and Environment protection. Researcher has studied International instruments like
“WIPO- UNSESCO- Model Provisions for National Laws on the Protection of Expressions of
Folklore against Illicit Exploitation and Other Prejudicial Actions, 1985”, “WIPO Report on
Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999)”, I
GC Mandate 2020/2021, “Strategic Plan 2011-2020 AICHI Biodiversity Targets”etc. And
websites like www.wipo.int , www.fao.org , www.unesco.org , www.cbd.int have been
referred by the researcher to get insights on its influence in developing framework for
protection of Traditional Knowledge.

5. HYPOTHESIS
1. It is hypothesized that though the TRIPS agreement under Article 27 talks about a sui-
generis legislation and also for the protection of traditional knowledge but this does
not specifically give any guidelines to protect the T.K.
2. It is hypothesized that India is the richest source of traditional knowledge not only in
medicinal area but it has a rich heritage of folklore, Art, Music, Dance Handicrafts,
and Skills etc. which needs protection through separate sui-generis legislation.

6. RESEARCH METHODOLOGY

Methodology adopted in writing this paper is purely Doctrinal. Primary sources like legal
documents have been referred by researcher, WIPO- UNSESCO- Model Provisions for
National Laws and Fact finding Reports of WIPO as well as Indian parliamentary Act ‘The
Protection of Plant Variety and Farmers Right Act, 2001 (PPVFR Act)’ etc. has been
intensively studied. Secondary sources like books, Articles, Journals, Magazines and
Periodicals has been utilized for references by the researcher. Websites and online sources too
have been visited and utilized to refer current development in the subject to write this research
paper.

7. CHAPTERSISATION

Chapters of this paper shall be as follows:-

1. Introduction
2. Alma Ata conference-1978, WHO Congress on Traditional Medicine
3. WHO-UNESCO- Model law on the Protection of Expressions of Folklore against
Illicit Exploitation and Other Prejudicial Actions, 1985
4. FAO Conference resolutions on Farmers' Rights in 1989 and 1991
5. Convention on Biological Diversity, 1992
6. WIPO- Fact finding mission on Intellectual Property and Traditional Knowledge,
1998
7. IGC for protection of IP and TK and genetic resources, 2001
8. India entering International Union for the Protection of New Varieties of Plants, 1992
and PPVFR Act,2001
9. CBD- Biodiversity targets (2011-2020)
10. Suggestion- Need of sui-generis legislation for all kinds of TKs in India as per TRIPS
Art 27
11. Conclusion

~THE END~