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CRITIQUE ON THE TRADITIONAL BILL 2016 DRAFTED BY SHASHI THAROOR AND THE WAY FORWARD.

“Once an old knowledgeable person dies, a complete library disappears with him”

“Once an old knowledgeable person dies, a complete library disappears with him”

Abstract

Sui-generis system of laws has been recommended by many international organizations to provide for an effective system of regulations for protection of traditional knowledge. But, in recent times the wave of globalization has caused this sui-generis system of laws to indirectly infringe and violate the human rights of the indigenous communities. In the light of, providing benefits these laws infringe and take away their human right of ownership over the property i.e. Traditional Knowledge owned by the indigenous communities. In this paper we are going to briefly discuss about what is traditional knowledge, what are the current laws protecting traditional knowledge in India and lastly a critique on the efforts of the Bill drafted by Dr. Shashi Tharoor to protect traditional knowledge.

Introduction

In recent times there has been a lot of discussion and debate on the protection and preservation of Traditional Knowledge. Before, moving ahead lets first understand what is Traditional Knowledge and the benefits that it has given to the society since generations.

Traditional Knowledge, as per WIPO “Is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”[1] It is basically a practice, custom or tradition that is carried out by communities and tribes and passed on from one generation to another. The traditional knowledge and customs are very sacred to these communities. Traditional knowledge exists in different forms for agriculture, medicine, art, navigation, music and folklore.The society has benefitted and gained a lot from traditional knowledge from saving lives, to curing diseases, and discovering various properties of plants and other organisms. Some of the famous

example are that of neem, turmeric, basmati rice, traditional use of plao-noi to treat ulcers (Thai), use of hoodia to stave off hunger (san community).[1]

The protection of traditional knowledge is very important for a couple of reasons which are as follows[2]

  1. Traditional knowledge practiced by these indigenous communities are a form of identity for them as they are identified by the same. For instance, although tribes being related to each other are distinct as the way they perform their rituals, the way they dress and their language, dialect and knowledge is different. Hence, the traditional knowledge is very indigenous and sacred to these communities.  
  2. Secondly, traditional knowledge is under a great threat as researchers, scientist and companies apply for patents and licenses of their discoveries and advancements which they collect and from these local communities and make a commercial use of traditional knowledge without the consent of these local communities.

Pre-globalization, there was no threat to traditional knowledge but with the advancement in technology and the wave of globalization has posed a grave threat to traditional knowledge. Usually, traditional knowledge is passed orally and there is no evidence to prove that this practice was originally practiced at a particular place/location and by a particular community/tribe and due to this many private and governmental organizations/companies and individuals have made and unfair gain through the knowledge owned by these tribes and communities. One of the famous cases that can be discussed is the Turmeric case[3]. The U.S. patent office had granted patent rights to University of Mississippi, Medical center for discovery of the medicinal property of turmeric to heal wounds. The patent was revoked after re-examination which stated that this knowledge was practiced by many Indian communities since 1000 of years. The ease with which patent was granted to the University of Mississippi proves the inapplicability to Intellectual Property Right Laws to protect and preserve the traditional knowledge.[1]

In this paper we are going to discuss about the Laws prevalent in India for the protection of Traditional Knowledge, the efforts of Dr. Shashi Tharoor to draft a bill on laws to protect Traditional Knowledge, a brief critique on it and lastly end with a precise conclusion that makes few recommendation, which could be included in the bill for better and adequate protection of traditional knowledge.

 

Scenario in India.

India is a country rich with culture, resources and traditional knowledge. These are passed on from one generation to another and are protected by them as well. There are no comprehensive system of rules and regulations to protect traditional knowledge and this is a disadvantage to the entire society. These communities have no access to information about the laws given under the different acts which can give them protection and recognition. Further, there is no administrative body which assists these indigenous communities to preserve and protect their traditional knowledge. Another, issue is that of bio-piracy, in which many companies and individuals illegally make commercial use of such knowledge relating to biological resources that they usually gain from these local indigenous communities.

Some of the laws that are prevalent in India to protect traditional knowledge are –

  1. The Copyright Act, 1957, it recognizes certain rights such as performer’s rights, author’s moral rights. This Act protects exploitation and reproduction of traditional knowledge without consent.
  2. The Patents Act, 1970, prevents the grant of a patent in which the source of origin or the geographical indication is not specified about the invention and hence if the traditional knowledge is illegally obtained and afterwards commercialized it can be prevented.
  3. The Protection of Plant Varieties and Farmer’s Right Act, one of the first legislations in the world which gives protection to the indigenous tribal communities for their contribution to farming and agricultural activities and their efforts to conserve and protect biodiversity and new plant varieties.
  4. The Bio-Diversity Act, 2002, “this act specifically provides IPR protection. It ensures equal sharing of profits that arises from the commercial use of biological resources and associated knowledge.”[1]

Some of the other acts that indirectly provide for regulation to protect traditional knowledge are the Trademarks Act 1999, The Geographical Indication of Goods Act 1999, and the Designs Act 2000.

Although, there are rules and regulations to protect and preserve traditional knowledge these laws are not stringent and adequate to give protection to the indigenous communities and tribes. There are many companies and individuals that exploit these regulations as there is no sui-generis regulation to protect traditional knowledge. As traditional knowledge is one of the most important components of our history and our future there is an urgent need to have a single and specific legislation that is obligated to preserve and protect traditional knowledge.

One of such efforts to make sui-generis laws is carried out by Dr. Shashi Tharoor that has drafted a bill on Traditional Knowledge, which will be named as the Protection of Traditional Knowledge Act, 2016 after the Parliament passes the bill. This is one of the first efforts by India to form a sui-generis system of regulation for Traditional knowledge to be in line with the commitments it has made to the World Intellectual Property Organization and various other International Organization at different conferences. Before moving to the provisions and the benefits and shortcomings of the bill lets first understand its objective.

The Protection of Traditional Knowledge Bill, 2016 (Bill), is drafted with the objective of enhancing the legislation in India to protect the rich cultural heritage which exists in different parts of our country in form of traditional knowledge and which is passed on from one generation to another. Further, this bill is an effort to ensure that social benefit and welfare to the society can be achieved at a level of maximum output. It also includes provisions for preserving and protecting traditional knowledge in a digital form, which is an innovative and

thoughtful effort. Lastly, this bill gives recognition to the contributions of the indigenous communities towards traditional knowledge and give them rights such as right to self-determination and right to equality.[1]

 

Critique on the Protection of Traditional Knowledge Bill, 2016.

The Protection of Traditional Knowledge bill has been drafted to prevent the exploitation and misappropriation of traditional knowledge owned and practiced by the indigenous communities. The bill has a total of 53 sections that include different provisions for custodianship, license, benefit sharing, authorization, administrative bodies – roles, appointments, grants and lastly measures for dispute resolution.

In this section we are going to carry out a brief critique on the Traditional Knowledge bill. In this bill there are certain provisions that can be an indirect threat to the rights of the indigenous community but some provisions that are drafted keeping in mind India’s commitment to draft an effective sui-generis system of legislations.

The Bill under section 3 to 7 deals with the rights over the custody and licensing of traditional knowledge. Section 3 of the Bill makes the State Government and in other cases the Central Government the custodian of all traditional knowledge and the provision for transfer of such custody to the local communities can only be done when certain criterions of distinctness, exclusivity and delineation are fulfilled.[1] Further, Section 4 governs the rights of the indigenous communities with regards to traditional knowledge. Section 4 determines the way in which the communities should grant licenses and permit commercial and non-commercial use of traditional knowledge.[2] Section 5 deals with provisions for communities granted ownership to traditional knowledge to deal with approvals and grants with regard to licensing.[3]

Section 6 of the Act lays down provisions for State Government to govern provisions for traditional knowledge and allow such knowledge to be used for research and non-commercial purposes.[1] These are some of the important provision relating to ownership and custody of traditional knowledge. One of the major debates is with regards to government intervention relating to ownership and custody of traditional knowledge because some provisions infringe and violate human rights of these communities.  

The Indigenous communities under the provisions of Human rights have a basic right to protect and control their traditional knowledge which is a kind of property or asset they own. As per the human rights approach one has a right to own, control and make benefits out of his property but the recent sui-generis provisions world-wide have been blatantly ignoring the context of human rights. In the awe, of giving protection to traditional knowledge they make such legislations that ultimately defeat the purpose and objectives of such legislations.[2] There have been many international organization such as the Berene Convention,, World Intellectual Property Organization and the Center of Bio-Diversity often make an effort to protect the right of traditional knowledge. These provisions are often complex and in one way or the other overlap different international law provisions which are basic and fundamental to the society.[3]

The Traditional Knowledge bill as well violates the human rights of the indigenous communities as it grants the custody to the Governments and in order to get custody of ownership the communities have to prove and fulfill various criterions as laid down under section 3 of the bill. There can be instances where the traditional knowledge of communities can be similar in one way or another in form practices for farming and medicine mostly relating Ayurveda healing practices, which caters to 65% of population in India.[4] These practices might have the same result but the process and knowledge utilized might be different in some way or another and this may cause injustice to the indigenous communities as the government might be hesitant in granting custody to such practices that produce the same result. This violate the human rights of these indigenous communities to own and have control over their traditional knowledge.

Another, issue is that of use of traditional knowledge for scientific and research purposes without the grant and approval of the indigenous communities as they belong to the public domain. The provision is indirectly mentioned in Section 6 of the Bill[1], which allows the traditional knowledge owned by the government to be used for non-commercial and research purposes with the prior approval of the government. Although there can be many benefits gained through advancement of such knowledge the problem of equal benefit sharing arises here. As the traditional communities might get the recognition over such knowledge and advancements but the benefits and profits are often utilized by the administrative and legislative wings of the government in the name funds and grants and the indigenous communities will not get any benefit from the same. Also, many indigenous communities have sacred religious beliefs attached to such traditional knowledge and the advancements and modifications might hamper and hurt the beliefs and feeling of such communities and this may lead to a violation of moral and cultural rights of the communities.[2]

These were some of the criticism of the Traditional Knowledge Bill, 2016 by Shashi Tharoor. But, there are various benefits and advantages that the bill provides for the upliftment and protection of traditional knowledge owned by the indigenous communities. The various sections that are beneficial for the indigenous communities are discussed below –

 

 

  1. The Bill defines traditional knowledge under section 2 of the bill, “as the knowledge and expression of culture which may subsist in codified or oral or other forms, whether publicly available or not, that is dynamic and evolving and is passed on from generation to generation. It includes know-how skills, innovations, practices, learning, medicinal preparations, method of treatment, literature, music, art forms, designs and marks.”[1] This definition gives a broad definition to traditional knowledge and includes all the form of traditional knowledge owned and practiced by these communities.
  2. This Bill provides for formation of a National Authority on Traditional Knowledge which is provided for under sections 12 to 23 of the Bill. It also provides for formation of a State Board of traditional Knowledge which is provided for under section 24 to 34. These are to administrative bodies that have been delegated powers and duties to protect and preserve traditional knowledge. Currently, there is no such administrative body in India that solely focuses on Traditional Knowledge and the formation of such bodies will not only give a boost in the upliftment, promotion and recognition of traditional knowledge owned by the indigenous communities but will also help proper protection and preservation of such knowledge under IP laws. These administrative bodies.
  3. The Bill under Section 36 provides for a Traditional Knowledge Docketing System[2], which provides for a register to record and keep a track of owners of traditional knowledge and the members to be included in the community. A short description on the traditional knowledge and various other details as required. This will help the government to keep a record of such communities and traditional knowledge owned by such communities.
  4. Further, the bill under Section 37 of the bill provides for forming and maintaining a Traditional Knowledge Digital Library.[3] This Digital Library keeps a track of all the traditional knowledge and a wide description about it and the owners of the same. This library prevents illegal granting of patents, copyrights and trademarks over such knowledge to individual and companies that have obtained such knowledge without prior consent for commercial purposes. This library gives protection to traditional knowledge worldwide.
  5. This bill also provides for civil and criminal remedies. It includes provisions for fines and terms of imprisonment for violations, misappropriation and infringing the provisions and remedies under this act.
  6. Lastly, the bill by Dr. Shashi Tharoor is drafted to give recognition to many communities and their practices and to protect their rights and ensure their equal benefit sharing. The provisions of this bill will provide recognition to thousands of such communities as India has a rich culture in traditions and traditional knowledge and a database on all this knowledge will give a global protection to these communities which can then share their knowledge to the society for greater benefits of all. [4]

 

Conclusion

In this paper we have discussed about the current scenarios with regards to protection of traditional knowledge in India. We have also made a brief critique about the Protection of Traditional Knowledge Bill, 2016 by Shashi Tharoor. In this critique we have stated the problem with the custodian and ownership rights of traditional knowledge. The excessive control of the government over such knowledge violates and infringes the human rights of the indigenous communities. Further, this bill is one of the first efforts to have a sui-generis form of laws in India and to a large extent it provides for regulations that fulfill India’s obligation to promote, protect and preserve traditional knowledge. 

While, framing such sui-generis laws the government should include more participation of the member of indigenous communities and take their suggestions and recommendations before making any commercial or non-commercial use of such knowledge. The government should also work towards the promotion and prevention of cultural and moral rights of the indigenous communities. As these indigenous communities have owned and passed on such traditional knowledge from generations, there are various religious and moral sentiments attached to them and hence the government and other organizations should respect and try to provide adequate protection. This protection can be given by proper consultation and recommendations from the members of indigenous communities. Efforts to establish a communication network through which these communities are aware about their rights and the protections that can be availed by them should be made. If there are stringent law for the protection of the culture and traditions of these indigenous communities, there would be more exchange of knowledge and art which would ultimately benefit the society.
 

Submitted by
Mufaddal Paperwala
O.P. JINDAL GLOBAL UNIVERSITY
BBA LLB 2016.

[1] Ibid.

[1] Swamy, Raju Narayan. Protection of Traditional Knowledge In the Present IPR Regime : A Mirage or a Reality. http://www.iipa.org.in/New Folder/Dr. Raju Narayana Swamy.pdf.

[2] Jewell, Catherine. “Protecting Traditional Knowledge: a Grassroots Perspective.” World Intellectual Property Organization , Feb. 2017, https://www.wipo.int/wipo_magazine/en/2017/01/article_0004.html.

[3] Tarunika, J., and J. Tamilsevi. “Traditional Knowledge and Patent Issues in India.” International Journal of Pure and Applied Mathematics, vol. 119, no. 17, 2018, https://acadpubl.eu/hub/2018-119-17/2/105.pdf

[1] “Traditional Knowledge.” World Intellectual Property Orgnization , https://www.wipo.int/tk/en/tk/.
[1] Swamy, Raju Narayan. Protection of Traditional Knowledge In the Present IPR Regime : A Mirage or a Reality. http://www.iipa.org.in/New Folder/Dr. Raju Narayana Swamy.pdf
[1] The Protection of Traditional Bill, 2016, Statement of Objective and Reasons.

[1] The Protection of Traditional Bill, 2016.

[2] Ibid.

[3]Ibid.

[1] Ibid.

[2]“Current Proposal: Dangers, Proposal and Opportunities.” Indigenous/Traditional Knowledge & Intellectual Property, Center for the Study of the Public Domain, https://web.law.duke.edu/cspd/itkpaper4/

[3] Anaya, James. “International Human Rights And Indigenous Peoples: The Move Toward The Multicultural State.” Arizona Journal of International & Comparative Law, vol. 21, no. 1, 2004, http://arizonajournal.org/wp-content/uploads/2015/11/Anaya.pdf

[4]Tharoor, Shashi. “Ayurveda: Is Law the First Step to Save Our Traditional Knowledge?” The Quint, 18 Mar. 2017, https://www.thequint.com/news/india/shashi-tharoor-traditional-knowledge-bill-parliament-against-foreign-appropriation-of-ayurveda

[1] The Protection of Traditional Bill, 2016.

[2] “Current Proposal: Dangers, Proposal and Opportunities.” Indigenous/Traditional Knowledge & Intellectual Property, Center for the Study of the Public Domain, https://web.law.duke.edu/cspd/itkpaper4/

[1] Tharoor, Shashi. “Ayurveda: Is Law the First Step to Save Our Traditional Knowledge?” The Quint, 18 Mar. 2017, https://www.thequint.com/news/india/shashi-tharoor-traditional-knowledge-bill-parliament-against-foreign-appropriation-of-ayurveda

[2] The Protection of Traditional Bill, 2016.

[3] Ibid.

[4] Tharoor, Shashi. “Ayurveda: Is Law the First Step to Save Our Traditional Knowledge?” The Quint, 18 Mar. 2017, https://www.thequint.com/news/india/shashi-tharoor-traditional-knowledge-bill-parliament-against-foreign-appropriation-of-ayurveda

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