Digital Documentation of Traditional Knowledge as a Defence Against Bio-Piracy

This Blog is Written by Arihant Chatterjee, 3rd Year, BBA LLB, Sister Nivedita University, Kolkata.

Introduction

Traditional Knowledge is defined by the World Intellectual Property Organization (WIPO) as a "living body of knowledge, from generation to generation in a community, which is often contained in the peoples' cultural and spiritual identity". Traditional knowledge is basically sacred information that is derived from, and belongs to, the various tribes around the world. It consists of all types of knowledge including herbs, farming practices, ways of healing people, and so on. All this knowledge has been passed down through generations. But unfortunately, this knowledge is now in jeopardy because many foreign corporations, and individuals are trying to steal it in order to profit from the pure knowledge of the ancestors, without providing anything back to the tribal communities to whom the information belongs. This act of stealing traditional knowledge has come to be referred to as biopiracy, and it is a major issue in India. The government of India is taking many steps to protect traditional knowledge, such as making a Traditional Knowledge Digital Library (TKDL), a Biological Diversity Act, 2002, a Geographical Indication Act, 1999, etc. These are working to stop the misuse of traditional knowledge; some right is being given to local people, etc. But still, there is no single strong law made on this specific issue. Many poor people are unaware of their rights; traditional knowledge is being misused without their permission.

Reasons for the Rise of the Problem of Bio-Privacy and Challenges Faced in the Protection of Traditional Knowledge

While most traditional knowledge is used by members of a community or tribe, the law allows for individual ownership through intellectual property rights (IPR). There are difficulties in protecting traditional knowledge against appropriation due to existing and emerging IPR laws. These problems include:

• A Collective Resource:  IPR provides protection to individuals who create knowledge through their practice of it in accordance with some concept of individual property ownership on behalf of a community or tribe. However, many traditional forms of knowledge have been developed over long periods of time, passed from generation to generation, and used by communities, thus making the traditional knowledge possessed by the community or tribe a collective resource.
• The Requirements of IPR's Novelty:  Most traditional knowledge has developed and evolved over time, with the help of the community, in response to new challenges and needs, and without the use of scientific assessment methods. Because traditional knowledge is developed over multiple generations, and has no new and novel components, traditional knowledge does not meet many of the novelty requirements for IPR protection, and will not qualify for patent protection under IPR law.
• Limited Period of IPR Protection: There is no specified period for which traditional knowledge is expected to be protected as IPR. However, because traditional knowledge is tied to the continued existence of living cultural practices among indigenous peoples, there are many potential legal and economic threats to the continued existence of these traditional knowledge practices. Currently, the Indian Patent Act does not provide for evergreening of patents.
• Problem of Benefit-Sharing: When it comes to sharing monetary benefits after the commercialization of a traditional practice through a legal procedure, it may become difficult to identify who should receive the benefits. For example, in the mid-1990s, the Tropical Botanic Garden and Research Institute (TBGRI) scientists developed a patent for a drug named “Jeevani”. The development of this drug was highly inspired by the knowledge of the energizing property of Arogya Pacha herb used by the Kani tribe in Kerala. Though the TBGRI was able to establish a benefit-sharing agreement with a trust consisting of Kani tribe members, not all Kani tribe members are comfortable with the sharing of traditional rights over the beneficial property of the herb.
• Lack of Documentation: Traditional knowledge generally involves learning through experience and traditions passed on over generations. This knowledge may have been developed, transmitted, and reinforced through rituals, songs, oral traditions of the community, human interactions, ceremonies, languages, experiences, and practices. This may not be available to the patent holder or the concerned authority due to the lack of proper documentation.
• Language Barriers: Many peoples of the world still do not understand their language as a written one. Due to this they cannot refer to the written documentation that exists for communities and therefore find it very difficult to share their culture with other communities.

Establishment of the Mechanism of TKDL

India has a glorious tradition of traditional knowledge (TK), particularly in the field of medicine and agriculture. These areas have long been vulnerable to biopiracy—where companies patent traditional knowledge without consent and compensation to the original holders of the knowledge. For this purpose, India has developed a Traditional Knowledge Digital Library (TKDL), which is a pioneering effort to protect India’s traditional knowledge from biopiracy and to promote India’s traditional knowledge on a global scale. The Traditional Knowledge Digital Library (TKDL) an electronic repository started in 2001 as a collaboration between the Council of Scientific and Industrial Research (CSIR) and the Ministry of AYUSH (which refers to the system of Traditional Indian medicine including, Ayurveda, Yoga & Naturopathy, Unani, Siddha and Sowa-Rigpa) for the purpose of providing access to traditional medicinal knowledge developed through these different types of Indian medicine such as those mentioned above. It currently has a collection of more than 34 million pages of information on 2.26 million medicinal formulations. It is a useful database for patent examiners around the world to prevent misuse of India’s cultural heritage. The establishment of the TKDL has greatly contributed to reducing the incidence of biological piracy; based on traditional knowledge, India has successfully contested many patent applications since the creation of TKDL. This proactive approach not only protects India's intellectual property but also presents India to the rest of the world, through international discussions about intellectual property rights.

Success Achieved So Far by the Implementation of TKDL

• The Database has granted access to 14 patent offices in the world (including the Indian Patent Office—the office of the Controller General of Patents, Designs & Trademarks) by virtue of previous Government of India approvals; these patent offices have also signed non-disclosure access agreements with the CSIR regarding the Database. The CSIR-TKDL Unit has also filed third party observations and telephone oppositions to patent applications for traditional Indian knowledge filed based on TKDL evidence. 
• Defensive protection provided by TKDL has been a successful method for protecting traditional Indian knowledge from being taken in vain; it sets the standard globally for such protection. To date, there have been 418,885 formulations submitted into the TKDL Database, 119,269 Ayurvedic, 236,399 Unani, 54,689 Siddha, 4,151 Yoga and 4,377 Sowa Rigpa (data as of March 25, 2022). 
• From March 2001 through March 25, 2022, we have received notice that there were 265 patent applications which can be withdrawn/deemed withdrawn or amended or set aside based on TKDL evidence and therefore such applications serve to protect traditional knowledge in India.
• The Council of Scientific and Industrial Research (CSIR) Traditional Knowledge Digital Library Unit has entered a Non-Disclosure Agreement with the National Biodiversity Authority for assessing and identifying modalities for the possible inclusion of information from the People’s Biodiversity Register (PBR) in the TKDL database. It is a tool for the formal recording and maintenance of detailed information on the availability and knowledge of local biological resources and their medicinal or any other use.

Conclusion

India's government has implemented a number of initiatives aimed at protecting Traditional Knowledge, including legislation such as the Traditional Knowledge Digital Library (TKDL) and the Biodiversity Act; however, additional issues persist, including insufficient legislation; insufficient awareness; and poor record keeping. Therefore, there is an urgent need for a dedicated sui generis law specifically designed to protect traditional knowledge, including clear rules for ownership, protection, and benefits-sharing. Additionally, traditional knowledge should be included in all policy and decision-making process, including providing more opportunities for local and tribal communities to engage and participate in decision-making processes, that affect their traditional knowledge.