TRADITIONAL KNOWLEDGE-MEANING AND RIGHTS OF TK

HOLDERS
Introduction:
Traditional knowledge is a part of the identity of most indigenous communities. The knowledge
systems that comprise traditional knowledge are an essential ingredient in achieving sustainable
development. Furthermore it is important to preserve the social and physical environment of
which the traditional knowledge is an integral part. Attempts to exploit traditional knowledge for
industrial or commercial benefits may lead to prejudicial misappropriation of the same from its
rightful holders. Hence, it becomes relevant to develop ways and means of protecting and
promotion traditional knowledge thereby ensuring sustainable development with the interests of
the traditional knowledge holders.

What is traditional knowledge?

Traditional knowledge (TK) 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.

Traditional knowledge can be found in a wide variety of contexts, including: agricultural,

scientific, technical, ecological and medicinal knowledge as well as biodiversity-related
knowledge.
Some examples of traditional knowledge are:
# Use of plao-noi by the Thai traditional healers to treat ulcers.
# Use of the Ayahuasca vine by Western Amazonian tribes to prepare various medicines.
# Use of hoodia cactus by the San people to stave off hunger while outhunting.
# Sustainable irrigation through water systems such as the aflaj in Oman and Yemen and the
qanat in Iran.
# Use of turmeric (Curcuma longa) for medicinal purposes.
# Use of ashwagandha (Withania sominifera) to treat heart related ailments.
# Traditional healing practices such as Yoga.

Value / Importance of TK:

 It has the potential to play a crucial role in sustainable development and for addressing
the most urgent global problems, such as
o climate change,
o land management,
o land conservation, and
o to strengthen scientific, technological and medical research.
 Furthermore, traditional knowledge can offer promising avenues for achieving food
security for not only indigenous peoples but for inhabitants around the globe.
 Many indigenous land and environmental management practices have been proven to
enhance and promote biodiversity at the local level and aid in maintaining healthy
ecosystems.
 Educational practices that combine indigenous traditional knowledge and languages are
a significant way to maintain and preserve indigenous cultures, identities, reduce
illiteracy and school dropout rates, enhance learning, protect the environment, and
promote wellbeing.
Why should traditional knowledge be protected?
Traditional knowledge holders face various difficulties.
 As cultural survival of communities is under threat. External social and environmental
pressures, migration, the encroachment of modern lifestyles and the disruption of
traditional ways of life can all weaken the traditional knowledge or passing knowledge on
to future generations.
 There may be a risk of losing the very language that gives the primary voice to a
knowledge tradition and the spiritual world - view that sustains this tradition.
 Either through accumulation of modern culture many traditional practices and associated
beliefs and knowledge have been irretrievably lost. Thus, a primary need is to preserve
the knowledge that is held by elders and communities throughout the world.
 Another difficulty facing traditional knowledge holders is the lack of respect and
appreciation for such knowledge. For example, when a traditional healer provides a
mixture of herbs to cure a sickness, the healer may not isolate and describe certain
chemical compounds and describe their effect on the body in the terms of modern
biochemistry, but the healer has, in effect, based this medical treatment upon generations
of clinical trials undertaken by healers in the past, and on a solid empirical understanding
of the interaction between the mixture and human physiology.
 Sometimes the true understanding of the value of traditional knowledge maybe
overlooked if its scientific and technical qualities are considered from a narrow cultural
perspective.
 With the gradual recognition of the value of traditional knowledge and an exponential
growth in the use of traditional knowledge products the greatest threat against it is that of
usurpation over – exploitation by commercial entities in derogation of the rights of the
original holders.

Traditional knowledge and intellectual property

Innovations based on TK may benefit from patent, trademark, and geographical

indication protection, or be protected as a trade secret or confidential information. However,
traditional knowledge as such - knowledge that has ancient roots and is often oral - is not
protected by conventional intellectual property (IP) systems.

Rights of TK holders:

While the policy issues concerning TK are broad and diverse, the IP issues break down into two
key themes:
 Defensive protection
Defensive protection refers to a set of strategies to ensure that third parties do not gain
illegitimate or unfounded IP rights over TK.

Some countries and communities are also developing TK databases that may be used as
evidence of prior art to defeat a claim to a patent on such TK.

WIPO has developed a toolkit to provide practical assistance to TK holders on

documenting TK.
Any system of defensive protection of traditional knowledge must provide for:
 The criteria defining relevant prior art applying to the traditional knowledge.
 A mechanism to ensure that the traditional knowledge constituting prior art is
 available and accessible to search authorities.
 It is suggested that these two approaches should be undertaken in a
complementary way as a comprehensive approach to protection of traditional
knowledge is unlikely to rely totally on any one form.

 Positive protection
Two aspects of positive protection of TK by IP rights are being explored:
 Preventing unauthorized use, and
 Active exploitation of TK by the originating community itself.
Positive protection gives TK holders the right to take action or seek remedies against any misuse
of traditional knowledge. Any system of positive protection of TK must provide for:

 Recognition of value and promotion of respect for traditional knowledge systems.

 Responsiveness to the actual needs of traditional knowledge holders.
 Repression of misappropriation of traditional knowledge and other unfair and inequitable
uses.
 Protection of tradition based creativity and innovation.
 Support of traditional knowledge systems and empowerment of traditional knowledge
holders.
 Promotion of equitable benefit sharing from use of traditional knowledge.
 Promotion of the use of traditional knowledge for a bottom up approach to development.

How should traditional knowledge be protected?

Traditional knowledge should be provided effective protection especially in
developing and underdeveloped countries. Such protection should primarily be with regards to,
 firstly, the recognition of the rights of the traditional knowledge holders and
 secondly, to prevent the unauthorized acquisition of rights by third parties over
traditional knowledge.
Most importantly such protection should be affordable, understandable and accessible to
traditional knowledge holders.
Protection of TK by India
In 2001, the Government of India set up the Traditional Knowledge Digital Library (TKDL) as
repository of 1200 formulations of various systems of Indian medicine, such
as Ayurveda, Unani and Siddha and 1500 Yoga postures (asanas), translated into five languages
— English, German, French, Spanish and Japanese.
India has also signed agreements with the European Patent Office (EPO), United Kingdom
Intellectual Property Office (UKIPO) and the United States Patent and Trademark
Office (USPTO) to prevent the grant of invalid patents by giving patent examiners at
International Patent Offices access to the TKDL database for patent search and examination.
The Intellectual Property Rights (IPRs) Policy for Kerala released in 2008 proposes adoption of
the concepts ‘knowledge commons’ and ‘commons licence’ for the protection of traditional
knowledge. The policy, largely created by Prabhat Patnaik and R.S. Praveen Raj, seeks to put all
traditional knowledge into the realm of "knowledge commons", distinguishing this from the
public domain. Raj has argued that TKDL cannot at the same time be kept confidential and
treated as prior art.
In 2016, Shashi Tharoor, Member of Parliament from Thiruvananthapuram introduced a Private
Bill (the Protection of Traditional Knowledge Bill, 2016) codifying the "protection, preservation
and promotion" of traditional knowledge system in India. However the bill was criticised for
failing to address the real concern of traditional knowledge.

TKDL:

Traditional Knowledge Digital Library is a collaborative project of the Government of India

through the Council of Scientific and Industrial Research (CSIR) and the Ministry of AYUSH, to
collect information on traditional knowledge existing in India, in various languages and format
as a single repository. TKDL serves as a reference of prior arts for patent examiners at
International Patent Offices (IPOs).

Features of TKDL:

The two main features of TKDL are Accessibility and Availability.

TKDL provides accessibility in terms of Language, Format and Classification. The traditional
Indian knowledge exists in local languages such as Sanskrit, Urdu, Arabic, Persian, Tamil, etc.
TKDL translates such traditional knowledge into the native languages of the patent examiners,
and in five global languages - English, French, Spanish, German and Japanese. The format of
TKDL is also unique and is similar to the format of the patent application, making it easily
understandable for the patent examiners. The full listing for each TK entity contains a
bibliography of traditional Indian documents, which in turn contains links to scanned images of
these documents in the original language. TKDL has created a new classification system for the
traditional knowledge, known as the Traditional Knowledge Resource Classification (TKRC),
which is based on the structure of International Patent Classification (IPC). Each listing in the
TKDL includes both TKRC codes and IPC codes.

Another main feature is the availability of TKDL. TKDL in complete form is available only at
certain national patent offices for use by patent examiners. However, a representative version of
the database is available at the TKDL website. This database has 1,200 representative listings.

TKRC:

Traditional Knowledge Resource Classification (TKRC) is an innovative classification system of

TKDL. TKRC has structured and classified the Indian Traditional Medicine System in
approximately 25,000 subgroups for Ayurveda, Unani, Siddha and Yoga. TKRC has enabled
incorporation of about 200 sub-groups under A61K 36/00 as defined in the International Patent
Classification instead of few sub-groups earlier available on medicinal plants under A61K 35/00;
thus, enhancing the quality of search and examination of prior-art with respect to patent
applications in the area of traditional knowledge.