Guest Post: Safeguarding the Sacredness of Traditional Knowledge – an Argument for a Sui Generis Framework for its Protection

With the current debates and discussions going on around Traditional Knowledge (for e.g., see Praveen Raj’s guest post here, or IPKat’s recent post here) we’re happy to bring our readers a sharp guest post by Rahul Bajaj looking into the intricacies of how a sui generis framework for TK could/should work. Rahul Bajaj is a 4th year law student from Nagpur and is passionate about constitutional law, intellectual property law, cyber law and disability law. He is particularly interested in studying the role of intellectual property law in facilitating access to education for persons with disabilities.

Safeguarding the Sacredness of Traditional Knowledge – an Argument for a Sui Generis Framework for its Protection

By: Rahul Bajaj

Indigenous communities form an indispensable component of our social ethos and epitomize the pluralistic values that the Indian state espouses. The Indian Patents Act, 1970, the Biological Diversity Act, 2002, the Protection of Plant Varieties and Farmers’ Rights Act, 2001 and the Geographical Indications (Registration and Protection) Act, 1999 contain provisions that are designed to protect traditional knowledge (“TK”) by putting in place safeguards to ensure that TK is not misappropriated without making necessary disclosures or obtaining requisite sanctions.

However, it is submitted that the extant regime is woefully inadequate to effectively protect TK for two principal reasons. First, the Indian Government has not clearly defined and articulated the policy goals that should undergird any system for the protection of TK thus far. In such a policy and legal vacuum, measures to protect TK will continue to remain misguided and unimaginative steps that may help in diffusing temporary conflicts, but would be simply untenable in the long run. Second, these measures do not recognize the simple fact that intellectual property law and TK are diametrically opposed to each other– while the former is predicated upon the notion of incentivizing creative expression by vesting monopoly rights in artists and creators, the latter focuses on communitarian creations. We can reconcile these two sets of interests only by putting in place a robust and impartial framework within the auspices of which a concerted effort can be made to promote the goals of both systems while undermining the essence of neither.

Principles that Must Underpin a Sui Generis Framework for the Protection of TK

I would like to delineate 5 cardinal principles that should underpin a sui generis system for promoting the twin imperatives of respecting the interests of indigenous communities and fostering the growth of our knowledge economy.

• The sui generis legal framework must be firmly rooted in Article 29 of the Indian Constitution which explicitly empowers every community to preserve its distinctive language, script and culture. As TK would squarely fall within the ambit of the term ‘culture’ in Article 29, the sui generis framework should be designed with the primary goal of statutarizing the mandate of the suprema lex.
• TK is a dynamic concept whose conceptions widely vary across tribes and are shaped by a large number of factors, not all of which can be exhaustively enumerated. The richness and diversity of traditional culture is best evidenced by the fact that there are around 370 million indigenous people living in more than 70 countries. Therefore, any sui generis system for the protection of TK should not seek to rigidly define what constitutes TK; instead, it should merely delineate some of its salient features such as its inextricable linkages with an indigenous community, the unique modes of its transmission, etc.
• It is critical to respect the sacrosanct nature of TK and to unequivocally recognize the fact that protecting TK does not merely mean curbing improper misappropriation of such knowledge but also includes protecting the essence of the knowledge. More specifically, it is necessary to accept that TK is essential for the survival of indigenous communities and lies at the heart of their cosmovision.
• The sui generis system must be participative in nature and must promote wide-ranging consultations amongst all stakeholders before arriving at any conclusion. Far too often, wealthy businesses offer alluring benefits to individuals belonging to indigenous communities and thereby elicit the knowledge that they need for serving their own parochial interests. It would, therefore, be apposite to emphasize the fact that no single individual has the power to decide the fate of traditional forms of creative expression that are created, maintained and revered by the community as a whole.
• Finally, even though it is imperative that we pay heed to the emotive appeal of the plight of indigenous communities, we cannot lose sight of the fact that a lopsided framework can stultify the growth of our rapidly burgeoning knowledge economy by denying IP protection for refinements to TK that substantively improve its efficacy and utility. Therefore, any creation that fills knowledge gaps in traditional art or culture must be adequately protected by the intellectual property regime.

Modalities of the Proposed Regime

I would like to recommend the institutionalization of a 3-tier hierarchical structure at the national, state and local level to monitor and control the use of TK and to fashion remedies to resolve all disputes pertaining to its use. The responsibilities of such a machinery would be fivefold.

1. As Prakruthi Gowda and Ushashi Khan note in this brilliant article, any such body would be required to create a database of all the traditional tribes that reside in different parts of India and the TK linked with them.
2. A collective property right must be granted to every community to maintain and control its TK.
3. This machinery would act as a connecting link between authors, researchers and business houses that wish to draw upon TK and the community that controls the said knowledge. It would be tasked with the responsibility of brokering solutions that are in consonance with the needs and aspirations of both parties.
4. After such a solution is reached, it would be required to ensure that TK is not used in a defamatory or derogatory manner and to take substantive steps to clamp down on those who engage in such disrespectful conduct.
5. Finally, it would be required to work closely with the National Biodiversity Authority and stakeholders in the Indian intellectual property regime to foster a culture of respect for TK and to lay down the standards, best practices, etc, pertaining to the use of such knowledge. In a country as vast and culturally diverse as India, a single body cannot be expected to handle all disputes connected with the use of TK, so it is necessary to empower local and state bodies to perform the first 3 of the aforementioned functions. The body at the national level would be required to oversee the functioning of all local and state authorities, resolve disputes whose resolution by the local and state bodies is not to the satisfaction of both parties and broker solutions related to TK that is owned by a community which is not confined within the geographical limits of a single state.

At this juncture, it would be apposite to mention as Praveen Raj recently noted here that the state of Kerala is the first state in India to have proposed a sui generis framework to protect TK that is based upon the creation of a ‘knowledge commons’ consisting of the TK of all tribes in Kerala. Members outside indigenous communities are free to use the knowledge for strictly non-commercial purposes and are required to deposit whatever refinements they make to the TK in the ‘knowledge commons’. However, my action plan differs from the Kerala model for 2 important reasons. Professor Basheer has noted the main loopholes of the Kerala policy here on the basis of which I have culled out the following differences between that policy and my proposed framework.

First, the Kerala model does not contain any concrete provisions for safeguarding the confidentiality of the TK that would form a part of the ‘knowledge commons’. This not only discourages communities from disclosing their zealously guarded knowledge but can also lead to the misuse of the knowledge by parties that do not come within the jurisdiction of the sui generis framework. On the contrary, confidentiality is a core principle upon which my action plan is based in accordance with which TK would only be revealed with the explicit consent of the concerned community. Second, an anti-industry sentiment permeates the Kerala model which is best evidenced by the fact that the knowledge forming a part of the knowledge commons can only be used for non-commercial purposes. My action plan is predicated on the belief that this is not a zero sum game, so it would seek to reconcile both sets of interests and would, therefore, allow for the IP protection of advancements that fill major knowledge gaps.

In sum, the framework that I propose is based upon the unexceptional proposition that what we protect – and the manner in which we protect it – must reflect the diversity, pluralism and vibrancy of a civilization as old as ours.

Note: This article has been adapted from a paper that the author presented at a conference at National Law University, Delhi on transforming dimensions of intellectual property law