Paper Details
Paper Code: CP04V12023
Category: Research Papers
Date of Publication: December 06, 2023
Citation: Mrs. Juriti Saharia, “The Role of Traditional Knowledge in Sustainable Development and Implications of Intellectual Property in Pharmaceuticals”, 1, AIJIPCA, (2023).
Author Details: Mrs. Juriti Saharia, Assistant Professor, Nowgong Law College, Nagaon, Assam
ABSTRACT
Traditional knowledge (TK) encompasses the accumulated wisdom, skills, and practices passed down through generations within communities. It plays a pivotal role in environmental conservation and is vital for sustainable development, which seeks to meet present needs without compromising those of future generations. Both at international and national levels, efforts are being made to ensure sustainable development that respects the rights of future generations while addressing current needs. Traditional knowledge supports these mechanisms and is a valuable asset for indigenous and local communities, making it a candidate for protection through intellectual property rights. This article explores how traditional knowledge contributes to sustainable development and delves into the implications of intellectual property, especially in the pharmaceutical sector. The analysis is based on a doctrinal methodology, utilizing secondary sources, published and unpublished data, as well as seminar papers presented during a session held on April 24, 2022
KEYWORDS
Intellectual Property Rights; Pharmaceuticals; Sustainable Development; Traditional Knowledge
Introduction
Traditional knowledge is the bedrock of identity for most local communities. It constitutes an essential aspect of their social and physical environment, demanding preservation. The exploi-tation of traditional knowledge for commercial gains without proper recognition can lead to misappropriation and harm the interests of its rightful custodians. This underscores the need for ways to safeguard and nurture traditional knowledge for sustainable development. Intellectual property represents the creative output of human intellect, including innovations and inven-tions. India, like many other countries, has legal provisions in place to protect intellectual prop-erty rights. Traditional knowledge, which is deeply interwoven into everyday life, including pharmaceuticals, must also be safeguarded. However, traditional knowledge often orally trans-mitted and with deep historical roots, doesn't fit neatly into conventional intellectual property systems. Nonetheless, the preservation, protection, and promotion of traditional knowledge-based innovations and practices are especially crucial for developing nations. In this contemporary context, the significance of traditional knowledge for sustainable development and its recognition as intellectual property are subjects of vigorous debate and seminars. On April 24 and 25, 2022, a two-day National Seminar was conducted jointly by Nowgong Law College of Nagaon and Dr. Rohini Kanta Barua Law College of Dibrugarh in collaboration with Aquitus Victoria Foundation. The seminar, under the theme "Emerging Trends of Intellectual Property and Innovations in the Corporate Sector in the Contemporary World," aimed to shed light on key issues and raise awareness regarding Intellectual Property Rights.
One of the sessions held on April 24th, focused on the role of traditional knowledge in sustainable development and the implications of intellectual property in the pharmaceutical industry. Seven paper presenters, including Ms. Shivika Sahu, Ms. Vasundhara Kaushik, Mrs. Zennat Parbin, Mrs. Sampa Sengupta, Mrs. Monmi Gogain, Mr. Tarun Kumar, and Dr. Purnima Khanna, explored various facets of traditional knowledge, traditional knowledge in medicine, the impacts of Intellectual Property Rights on traditional knowledge, and the protection of traditional knowledge.
Analysis of the Papers
There are numerous legal instruments in place to protect intellectual property, covering inventions, literary and artistic works, designs, and plant varieties. However, India lacks substantive legislation dedicated to safeguarding traditional knowledge. The paper presenters highlighted various issues related to traditional knowledge and the urgent need for its protection. They also shed light on the establishment of the WHO Traditional Medicine Centre in India and the implications of intellectual property on traditional medicine. Their research work is expected to aid in formulating measures to protect traditional knowledge and broaden the scope of Intellectual Property Rights concerning traditional knowledge.
In her paper titled "Traditional Knowledge of Local Communities and Their Contributions as Cultural Heritage," Ms. Shivika Sahu, of DAVV, Indore, emphasized the importance of protecting the traditional knowledge of local communities. Traditional knowledge, often transmitted orally from one generation to the next, has been vulnerable to misappropriation. Local communities have nurtured this knowledge, but they have often not received recognition or a fair share of the benefits reaped by multinational corporations. The author explored various strategies employed to protect traditional knowledge through positive and defensive mechanisms. India has played a significant role in documenting traditional knowledge, thereby centralizing the protection of traditional knowledge within the Intellectual Property System. The author raised the question of whether Intellectual Property Rights can genuinely protect traditional knowledge from misuse or whether a new regime of traditional knowledge developed with corporate structures can be protected by Intellectual Property Rights. Criticism against protecting traditional knowledge with Intellectual Property Rights centers around the fear of commodifying knowledge, treating it as a mere commodity, which clashes with the perspective of indigenous people who regard their knowledge as sacred and secretive.
Traditional knowledge finds application in various fields, including agriculture, forestry, ayurveda, health, and horticulture. Plant-based medicines and cosmetics, among other products, heavily rely on traditional knowledge. However, traditional knowledge is often exploited for bio-prospecting without the consent of local communities. The author cited a 2005 finding by the CSIR (Council of Scientific and Industrial Research) that identified 35,000 references to individual plant-based medicinal plants in the USPO (United States Patent Office) related to seven or more medicinal plants of Indian origin. The author discussed two types of traditional knowledge protection: positive protection, which grants exclusive rights of use to members of local communities, and negative protection, which excludes others from using that knowledge held by a particular community. The author argued that by granting copyright to traditional knowledge holders and recognizing patents for inventors from local communities, traditional knowledge could be effectively protected. The author emphasized the need for proper legislative measures and treaties to protect traditional knowledge, particularly in the medicinal and agricultural fields.
In "Establishment of a Traditional Medicine Centre in India," Ms. Vasundhara Kaushik from Ami-ty Law School, Noida, discussed the recent developments in traditional medicine. The WHO announced the establishment of the world's first Traditional Medicine Centre in India. The author described India's position in traditional medicine, the potential benefits of this establishment for the country, and the global challenges that the WHO aims to identify and address. This center, called the World Health Organization's Global Centre for Traditional Medicine (WHOGCTM), was set up in Jamnagar, Gujarat, through an agreement between the Government of India and the WHO. It aims to conduct research on traditional medicine and serve as a global hub for the management of traditional medicine-related issues. The Global Centre for Traditional Medicine is focused on harnessing the potential of traditional medicine worldwide, merging it with modern science and technology to enhance global health. The Ministry of AYUSH (Ayurveda, Yoga & Naturopathy, Unani, Siddha, Sowa-Rigpa, and Homoeopathy) collaborated with WHO on various aspects related to the benchmarking and documentation of training and practices in Ayurvedic and Unani systems. The WHOGCTM's role is to identify the challenges faced by countries in regulating, integrating, and positioning traditional medicine within their health systems. The author also pointed out the challenges related to the absence of standardized treatment protocols and universal terminology for traditional medicine. The Global Centre for Traditional Medicine is expected to provide a platform to address these issues effectively.
In her paper titled "Traditional Knowledge of Local Communities and Its Need for Protection," the author highlighted that traditional knowledge is mostly oral and lacks sound legal protection. Without a regulatory framework, large corporations often exploit traditional knowledge without giving due credit to its creators. The World Intellectual Property Organization (WIPO) identifies two types of protection for traditional knowledge. The first is defensive protection, which restricts outsiders from acquiring intellectual property rights over traditional knowledge. The second involves granting rights to indigenous communities to promote their knowledge, its use, and benefits, and prevent commercial exploitation. The World Health Organization (WHO) has called for integrating traditional knowledge with alternative forms of medicine within the national health systems, as seen with AYUSH in India, to ensure easier access and affordability of traditional medicine. In 2000, the WIPO Inter-Governmental Committee on Intellectual Property and Traditional Knowledge urged member countries to develop international measures for the protection of traditional knowledge. The committee has laid out three qualifiers for traditional knowledge: it should be collectively held by indigenous communities, associated with their social and cultural identity, and transmitted from generation to generation, practiced for at least 50 years to qualify as traditional knowledge. According to the author, protecting traditional knowledge is crucial for equity, the conservation of biological diversity, and the preservation of conventional practices that help protect self-identity. Recognizing traditional forms of creativity, innovation, and protectable intellectual property would represent a historic shift in international law. The establishment of the Global Centre for Traditional Medicine is expected to harness the benefits of traditional medicine as a game-changer in the health sector.
In "Intellectual Property Rights and Sustainable Development vis-à-vis Biodiversity," the author described the importance of intellectual property rights and their role in sustainable development and biodiversity protection. The author pointed out that environmental protection and sustainable development go hand in hand, as the protection of the environment is a prerequisite for sustainable development. The Industrial Revolution has had far-reaching consequences for the environment, making the protection of biodiversity crucial. Biological diversity forms the backbone of sustainable development. The author stressed the implementation of intellectual property laws and provisions under civil and criminal laws in India to protect biodiversity. In her paper titled "Traditional Knowledge of Indigenous People and Environment Protection in the State of Assam - An Undeniable Affinity," the author emphasized the link between intellectual property and environmental protection based on the practices and activities of indigenous people. The traditional practices, customs, and institutions of indigenous people are deeply connected to environmental protection. These practices include rites to the land and territories, traditional rituals, and cultural practices related to religion that contribute to environmental conservation. Protecting traditional knowledge can play a pivotal role in preserving the environment. The author referred to the Universal Declaration of Human Rights and the Biological Diversity Act of 2002 in the context of the need for traditional knowledge protection.
In the topic "Misuse of Traditional Knowledge of Indigenous People in the Capitalist World Sys-tem," the author highlighted the rampant misuse of traditional knowledge by capitalist entities for commercial purposes without adequately compensating traditional knowledge holders. The Industrial Revolution has elevated the importance of intellectual knowledge, posing a growing threat to indigenous communities and local traditions. Traditional knowledge is valuable not only to those who depend on it but also to modern industries and agriculture. The current intellectual property system, primarily designed for individual or corporate ownership, is incompatible with the collective nature of traditional knowledge creation. Traditional knowledge, rooted in common property resources and held collectively, has been exploited by corporate industries without sharing profits with its holders. Due to factors like poverty, illiteracy, isolation, lack of information, and technological barriers, traditional knowledge holders often struggle to convert their knowledge into wealth. Large corporations, including pharmaceutical and film industries, utilize traditional knowledge of indigenous people and village communities without giving proper recognition. International efforts to protect traditional knowledge include the WIPO In-ter-Governmental Committee on Intellectual Property and Genetic Resources, the Convention on Biological Diversity, and the United Nations Declaration on the Rights of Indigenous People.
In her paper "Protection of Traditional Knowledge and Sustainable Development - An Integrated Approach," the author focused on the position of Indian laws regarding the protection of traditional knowledge. India possesses a wealth of knowledge
Conclusion
Preserving traditional knowledge is essential for equity, conservation of biodiversity, and the preservation of cultural practices. Biopiracy and misuse of traditional knowledge highlight the need for comprehensive protection and international cooperation. Documenting and digitizing traditional knowledge, as exemplified by the Traditional Knowledge Digital Library (TKDL) in India, can effectively safeguard traditional knowledge while fostering awareness of intellectual property rights. A sui generis legal framework is vital to provide appropriate protection, enforcement, and benefit sharing, striking a balance between preserving traditional knowledge and enabling its rightful use. Collaborative efforts and a global perspective are essential to ensure the holistic protection and utilization of traditional knowledge for the benefit of all.