This article has been written by Ms. Saloni Sankhe, a second-year student of SDSM College, Palghar.

Abstract:

India, as a participant in the CBD since its inception on December 29, 1993, aligns with its three primary goals: conserving biological diversity, sustainably utilizing its components, and ensuring fair and equitable sharing of benefits from genetic resource utilization. The CBD emphasizes the necessity of sharing benefits derived from the commercial application of Traditional Knowledge (TK) with the individuals responsible for creating, refining, and utilizing this knowledge.

Article 8(j) of the CBD specifically advocates for respecting, protecting, and rewarding the Knowledge, Innovations, and Practices (KIP) of local communities. Recognizing the importance of ensuring benefits for holders of TK not yet in the public domain, the Biodiversity Act of 2002 includes provisions to protect such knowledge. The Indian Patents (Amendment) Act of 2005 indirectly addresses TK protection.

The primary aim of TK protection is to secure recognition and compensation for the commercial utilization of TK beyond the originating community or society. This can be achieved by preventing unauthorized use by third parties or by establishing the right to remuneration (or benefit sharing) for such utilization.

Keywords: Protection, Traditional Knowledge, Intellectual Property Rights, Biodiversity, CBD, Indigenous Communities, Legal Frameworks, Cultural Heritage, Economic Prosperity.

1. 
   INTRODUCTION

India, distinguished as one of the globe’s twelve super Biodiversity Countries, stands out as a pivotal repository for crop diversity and the guardian of numerous wild crop variants. The nation’s wealth in traditional knowledge concerning the attributes and applications of these biological resources is a testament to its unique biodiversity and natural abundance. Indigenous and local communities predominantly inhabit biologically rich and diverse regions, where the natural environment forms an integral aspect of their way of life and cultural identity. These populations serve as custodians of traditional environmental wisdom and sustainable practices, making Traditional Knowledge (TK) an indispensable element in achieving sustainable development. Despite being a readily accessible treasure, TK remains susceptible to misappropriation, often transmitted through oral traditions across generations.

The term “Traditional knowledge” encompasses a vast reservoir of information spanning various domains, including insights into plants and animals and their properties, minerals and soils along with their characteristics, organic and inorganic compositions, medicinal knowledge, and expressions of folklore in the forms of music, dance, poetry, crafts, stories, and artwork. In fields like science, technology, ecology, medicine, agriculture, and biodiversity, the intellectual creations originating from ancestors and evolving through subsequent generations within traditional societies find protection under traditional knowledge. TK serves the dual purpose of preserving both the population and its cultural heritage, ensuring the essential genetic capital for the community’s sustained existence.

The growing need to effectively safeguard traditional knowledge has gained momentum, either through the integration of traditional Intellectual Property Rights (IPR) systems or the adoption of modern sui generis systems, such as group-based traditional rights or collective land rights. Additionally, there is an imperative to encourage societies to harness traditional wisdom for their advancement and progress. 

The Basmati rice patent case stirred significant controversy when the USPTO granted a patent to RiceTec, a US company, for Basmati rice lines and grains. Basmati rice, a traditionally grown aromatic variety in India and Pakistan, sparked multiple IP concerns beyond patent law, including trademarks and geographical indications. RiceTec’s patent aimed to combine Basmati grain traits with desirable plant features for better rice cultivation in the US. However, a re-examination revealed non-obvious claims, prompting RiceTec to reduce its claims from twenty to three, ultimately not challenging the USPTO’s decision.

1. CRITERIA FOR QUALIFYING AS TRADITIONAL KNOWLEDGE

Traditional knowledge, at its core, embodies the wisdom accumulated over centuries through cultural practices. It often involves the adaptation and expansion of practices in response to evolving societal needs. These innovations not only contribute to the existing knowledge base but also become integral parts of the information transmitted to succeeding generations, thus defining the essence of traditional knowledge collectively for future generations. The fundamental elements of Traditional Knowledge include:

1. a) Development of new practices/processes to meet specific needs. b) Transmission of these processes/methods across generations through cultural practices. c) Restriction to a specific group/community within a particular societal context by virtue of its values.

An exemplary illustration of Traditional Knowledge is the case of the neem tree in India, which was recognized for its diverse applications over 2000 years ago. It has been extensively utilized in agriculture, human and veterinary medicine, toiletries, cosmetics, and as an insect and pest repellent.

III. SIGNIFICANCE OF TRADITIONAL KNOWLEDGE

Traditional knowledge stands as a cornerstone in the realm of biodiversity conservation and its age-old applications. Its significance permeates various sectors, contributing to the cultural, ecological, and economic fabric of societies. Several key areas underscore the profound importance of traditional knowledge:

1. Indian Systems of Medicine:
   • Traditional knowledge is deeply interwoven into the fabric of Indian Systems of Medicine, including Ayurveda, Siddha, and Unani. These systems form an integral part of the official healthcare system in India. They draw extensively from traditional wisdom regarding the use of diverse biological resources for medicinal purposes. The intricate knowledge of plants, herbs, and their therapeutic properties has been passed down through generations, shaping holistic healthcare practices.
2. Agriculture and Livestock Management:
   • Farmers and livestock keepers, through successive generations, have refined and propagated a diverse array of crops and domesticated animals. This cumulative wisdom is invaluable for ensuring food security and addressing various needs like clothing, healthcare, and shelter. Traditional agricultural practices, rooted in local knowledge, contribute to sustainable farming and the preservation of agro-biodiversity.
3. Conservation of Natural Areas:
   • Local communities across India have independently taken on the responsibility of conserving wild areas, including natural ecosystems. Some of these areas, known as ‘sacred groves,’ have been preserved for millennia and are dedicated to local deities. This preservation is not only an ecological necessity but also a testament to the cultural significance of these areas, showcasing the harmonious coexistence between communities and their natural surroundings.

However, despite its crucial role, traditional knowledge faces challenges, particularly in the context of commercial exploitation:

• Commercial Utilization Without Consent: Industries often leverage traditional knowledge to develop commercial products without seeking the consent of or acknowledging the original knowledge holders. This raises ethical concerns about the fair and just use of traditional wisdom for economic gains.
• Intellectual Property Rights (IPRs) Issues: Conflict arises when IPRs and exclusive rights are claimed over traditional knowledge. This not only raises questions about the ownership of knowledge that has been passed down through generations but also poses a threat to the cultural heritage and identity of communities.

In essence, recognizing and respecting traditional knowledge is crucial not only for the preservation of biodiversity and cultural heritage but also for fostering equitable and sustainable development that respects the contributions of generations past. Balancing the integration of traditional knowledge into modern practices while safeguarding the rights of indigenous communities is paramount for a harmonious coexistence between tradition and progress.

1. 
   CBD’s Role in Traditional Knowledge

The Convention on Biological Diversity (CBD) stands as a pivotal international framework explicitly acknowledging the significance of traditional knowledge, innovations, and practices within indigenous and local communities in conserving biodiversity and fostering sustainable development. However, the convention’s scope concerning traditional knowledge primarily encompasses genetic materials. It serves as a guiding framework, outlining fundamental principles for long-term collaborative efforts among the parties involved.

Article 8(j) of the CBD mandates each contracting party to uphold, preserve, and sustain the knowledge, innovations, and practices of indigenous and local communities. This includes tangible and visible lifestyles relevant to the conservation and sustainable utilization of biological resources. The directive emphasizes promoting broader application of such knowledge, innovations, and practices, ensuring the involvement and approval of the holders. Additionally, it stresses the need for equitable benefit-sharing from the utilization of these resources and knowledge.

1. Biopiracy: Violating Traditional Rights

Biopiracy represents a violation of traditional communities’ rights concerning their biological resources and associated knowledge. Its implications stretch beyond mere economic ramifications; they encompass ethical dimensions as well. Biopiracy involves obtaining Intellectual Property Rights (IPRs) such as patents or Plant Breeders’ Rights, allowing monopoly control over biological resources or traditional knowledge without the consent or fair benefits for the original holders.

The original holders, despite their role in nurturing and developing these resources and knowledge, often receive no share in the profits derived from commercializing products based on their resources or knowledge. Furthermore, once an IPR is acquired, these holders are often barred from any commercial use of the IPR-protected knowledge or resource, leading to a loss of access or control over their traditional assets.

1. Balancing Bioprospecting and Preservation

While exploring biological resources for new commercial uses—known as bioprospecting—is an intrinsic part of global socio-economic development, the problem arises when bioprospecting transitions into biopiracy or environmentally unsustainable practices. Bioprospecting, often associated negatively, is sometimes offensive to traditional communities as it attempts to commercially exploit resources and knowledge that hold sacred or livelihood-supporting significance.

This intricate balance demands a nuanced approach: to harness the potential of biological resources while respecting the sacredness and sustainability crucial to indigenous and local communities’ way of life. Striking this balance entails ensuring fair benefit-sharing, respecting consent, and preventing the exploitation of resources and knowledge integral to these communities’ existence.

Approaches to safeguard traditional knowledge within the current Intellectual Property Rights (IPR) framework involve two strategies: Constructive Protection and Protective Protection. These methods, although not entirely distinct, collectively form an effective approach to traditional knowledge preservation.

Constructive Protection grants traditional knowledge holders the right to address abuses and seek remedies. It includes quality approval, acknowledgment of traditional systems, prevention of misuse, support for tradition-based innovation, empowerment of knowledge holders, promotion of equal profit sharing, and a bottom-up approach to development.

Protective Protection shields against unauthorized intellectual property rights obtained by third parties over traditional knowledge. This method ensures that relevant prior art criteria apply to traditional knowledge and establishes mechanisms for accessibility by search authorities.

A holistic approach to traditional knowledge security involves the complementary application of both methods. The government has initiated various measures for protection:

1. Honey Bee Network: Operating the world’s largest grassroots innovation database, SRISTI promotes popular innovation, protects IPRs for small innovators, and ensures fair compensation.
2. Beej Bachao Movement: Launched in 1995 in collaboration with residents of Jardhar in Teri Garhwal district, this movement focuses on tracing indigenous seed diversity and conservation practices.
3. National Innovation Foundation (NIF): Established in 2000 in Ahmadabad, NIF collaborates with the Honey Bee Network to support grassroots technologies and outstanding traditional knowledge, facilitating their transition to self-supporting activities.
4. Gujarat Grassroots Innovations Augmentation Network (GIAN): GIAN, through marketplace scrutiny and collaboration with institutions, enhances the technical efficiency of innovations from the Honey Bee Network catalog, supporting testing, product development, and market launch strategies. This initiative aims to recognize and reward grassroots technical innovators and traditional knowledge experts.

CASE STUDY

Feni, a traditional alcoholic beverage from Goa, holds deep cultural significance, originating from Portuguese colonial rule. The Goa government sought Geographical Indication (GI) status for Goan Feni in 2007 to protect its cultural heritage and boost global recognition.

The application process involved the formation of the Goa Cashew Feni Distillers’ and Bottlers’ Association, which faced challenges due to the diverse production methods in the region. Despite registering Feni under GI in 2009, the specification of processing techniques remains unclear.

The association plays a crucial role in maintaining Feni’s uniqueness post-registration. Balancing standardization for GI with cultural diversity is a challenge, with debates on whether to include different production methods under one GI or pursue separate GIs for distinct practices.

Traditional wisdom in selecting and processing cashew apples influences Feni’s taste. Changes in sourcing and processing, such as using mechanical crushers, have evolved over time. Distillers emphasize the superior quality of Goan cashew apples compared to those from other regions.

Despite GI registration, unresolved questions persist. Issues include determining which processes are specific to Goan Feni, whether Feni from Maharashtra and Karnataka can use the GI, and if traditional knowledge has been modified. The effectiveness of GI in protecting biocultural heritage and benefiting traditional knowledge holders remains uncertain, requiring further exploration.

VII. Suggestions for Ensuring Robust Protection of Traditional Knowledge:

1. Develop and implement national and international regulatory frameworks within the intellectual property system to secure legal access to genetic resources and traditional expertise.
2. Preserve and enhance political and legal flexibility within existing international frameworks, fostering the design and implementation of both constructive and protective measures for traditional knowledge safeguarding.
3. Ensure broad and effective participation of indigenous and local communities in all discussions and agreements concerning genetic resources and cultural information.

VIII. Conclusion:

 Upon thorough examination of various facets of Traditional Knowledge (TK), it becomes evident that TK serves as the cultural cornerstone of any nation while also presenting a valuable resource for economic prosperity. Striking a delicate balance between protecting the rights of indigenous communities and reaping benefits from commercializing TK developments is crucial for socio-economic harmony.

In India, where substantial measures have been taken to protect TK, the nation’s burgeoning needs and limited investment opportunities turn TK into an untapped gold mine awaiting exploration. It is imperative, without compromising indigenous rights and cultural heritage, for commercial entities to gradually harness the vast reservoir of TK to meet the evolving needs of the population.

With current laws promoting both community rights and a patent-friendly environment, strategic encouragement of benefit-sharing agreements is essential to maintain equilibrium between TK holders and inventors.

References:

1. Traditional and Folk Herbal Medicine: Recent Researches Vol. 2,  by Dr V K Gupta

ISBN-13 ‏: ‎978-9351301080

1. Plant Genetic Resources and Traditional Knowledge for Food Security by Bharat Bhushan Gupta, Romesh Kumar Salgotra, ISBN:9789811000607, 9811000603
2. Traditional Knowledge in Modern India By Nirmal Sengupta, ISBN:9788132239222, 8132239229
3. This article was originally written by Saba published on SCC online website. The link for the same is herein. https://www.scconline.com/blog/post/2018/04/23/protecting-traditional-knowledge-the-india-story-till-date/
4. This article was originally written by Saba published on IIED website. The link for the same is herein. https://biocultural.iied.org/convention-biological-diversity-and-its-working-group-article-8-j
5.  World Health Organization. (2002). WHO Traditional Medicine Strategy 2002-2005.

https://iris.who.int/bitstream/handle/10665/67163/WHO_EDM_TRM_2002.1_eng.pdf?sequence=1

1. Biological Diversity Act, 2002. (Bare Act)
2. Copyright Act, 1957.
3. Protection of Plant Varieties and Farmer’s Rights Act, 2001.
4. Geographical Indications of Goods (Registration and Protection) Act, 1999.
5. Patents Act, 1970.