1
Jahangirnagar University
Department of Law and Justice
2nd Year,LL. B. (Hons.)
Course Title: Intellectual Property Law
Course Code:206
Term Paper Topic: Traditional Knowledge and Its Protection
https://images.app.goo.gl/SPvxG4TzffXLCKZV8
Submitted By:
Nawmi Nawroz Rimjhim
Roll no:1926
Reg no:20203452297
2nd Year, LL. B. (Hons.)
Department of Law and Justice
Jahangirnagar University
Submitted To:
Bonosree Rani
Lecturer
Department of Law and Justice
Jahangirnagar University
2
Table of Contents
Number Contents
1. Introduction
2. What is Traditional Knowledge
3. Protection of Traditional Knowledge
● Why Protection is Necessary
● Types of Protection
● Protection Available on International Framework
● Protection available in Bangladesh
4. Own Commentary
5. Conclusion
3
Knowledge of your surroundings and way of survival is important to sustain life. Traditional
Knowledge is such knowledge and practices of indigenous people and their cultural beliefs that
shape their lives. Indigenous people and local communities around the world have developed an
enormous wealth of traditional knowledge. Protection of such traditional knowledge is important
and very much necessary not only to protect the indigenous groups but also to protect the
ecosystem, biodiversity and such other matters.
■What is Traditional Knowledge:
Knowledge relating to traditions and heritage of indigenous communities that are passed down
from generation to generation are known as Traditional Knowledge. Traditional Knowledge
refers to the innovations and practices of indigenous and local communities that have developed
from experiences gained over the centuries and are methods of their survival and social norms.
Generally Traditional Knowledge is transmitted orally from one generation to next and it can
also be transferred through stories, legends, rituals, songs, laws, folklore, proverbs, games, art,
architecture and so on. It can be found in cultural practices, values and beliefs of the people of a
certain community. The indigenous and local people have knowledge and understanding of their
environment and ecosystem and know ways to survive and thrive in their surroundings and that
is also Traditional Knowledge. This knowledge doesn't need to be very old or static. Uncommon
or different practices of indigenous communities regarded as cultural values and beliefs are
Traditional Knowledge. It doesn't need to be ancient but only needs to be accepted by a
community as their local practice.
A report of the International Council for Science(ICSU) study group on Science and Traditional
Knowledge characterises traditional knowledge as:
"a cumulative body of knowledge, know-how, practices and representations maintained and
developed by people with extended histories of interaction with the natural environment. These
sophisticated sets of understandings, interpretations and meanings are part and parcel of a
cultural complex that encompasses language, naming and classification systems, resource use
practices, ritual, spirituality and worldview."1
So it can also be said that any cultural traditions and practices of the indigenous communities
that are not general knowledge but are important information and knowledge regarding that
specific ecosystem is Traditional Knowledge.
1
https://en.wikipedia.org/wiki/Traditional_knowledge?wprov=sfla1
4
■Protection of Traditional Knowledge:
•Why Protection is Necessary
The most difficult aspect of traditional knowledge is in its protection. Protecting the traditional
knowledge has become most important because only then the unauthorized and commercial
misuse of such knowledge can be stopped. It is important to protect the indigenous people from
suffering such loss and also help them to preserve such knowledge properly. The main problem
that occurs is Bio-piracy.
ref:https://images.app.goo.gl/22dbSbrzXEjM8Dyf7
Protection of traditional knowledge under intellectual property regime is difficult and faces a lot
of challenges such as confusion regarding the section of IP under which traditional knowledge
should be protected, how to give traditional knowledge continuous protection since every IP
protection is provided for a limited period of time, how to determine the rightful owner of a
traditional knowledge to give rights and so on. Bio piracy is the unauthorized appropriation of
knowledge and genetic resources of farming and indigenous communities by individuals or
institutions seeking exclusive monopoly control through patents or intellectual property. This
harms the indigenous communities in many ways. For example if such knowledge is taken from
the indigenous group by companies and commercialised then it will be difficult for them to
afford their own natural resources if proper reward and compensation is not available for such
traditional knowledge. To stop such unfair treatment and exploitation of the indigenous people
their knowledge is needed to be protected. WIPO has rightly pointed out that the bulk of the
world's traditional knowledge and biodiversity lies in the developing countries, whereas the
5
capacity to extract commercial benefit from these still resides largely in the developed world.2
Protection of the traditional knowledge is necessary because otherwise it will lead to
environmental destruction in the corresponding developing countries where indigenous
communities reside the most.
To conclude, protection of traditional knowledge is necessary-
● To prevent the unauthorized use or misappropriation of the traditional
knowledge for commercial purposes.
● To prevent the exploitation of traditional knowledge without the benefits
being shared with the original traditional knowledge holders.
● To preserve the knowledge and history of human being.
•Types of Protection
In terms of intellectual property rights, protection of traditional knowledge can be of two types:
1. Positive Protection
2. Defensive Protection
◇Positive Protection: Positive Protection includes intellectual property rights on Traditional
Knowledge and traditional knowledge holders can file IPRs applications. These IP rights can be
given to an individual person or a group of people. And TK holders can use this protection for
their benefit. They can give permission to third party to use the traditional knowledge on specific
terms such as Profit sharing or mutually agreed terms etc.
◇Defensive Protection: This kind of protection does not allow any third party to access the
traditional knowledge. It means preventing others from filling TK based IPRs applications. To
claim defensive protection, the applicant has to provide the source and evidence of the traditional
knowledge.
•Protection of Traditional Knowledge Available on International Legal Framework
➢ Berne Convention for the Protection of Library and Artistic Works
Initially made to protect the "literary and artistic works'',Article 15(4) later included works of
"folklore". As Article 15(4) states, three conditions are to be fulfilled in order to seek protection
2
WIPO, Technology Based on Traditional Knowledge and Genetic Resources, WIPO
MAGAZINE(Geneva, April 2007), p. 10.
6
under this convention. They are: 1) the work is unpublished, 2)folklore is not attributable to any
author, 3)there is every reason to believe that this unknown author is a national of a given Union
country. If these requirements are fulfilled then the Berne Convention provides an opportunity to
the Union countries to exploit their folklore.
➢ ILO Convention on Indigenous and Tribal People's,1989
Article 13(1) of the Convention promotes respect to cultural and spiritual values and relationship
of the indigenous people with their land. It is believed that in many cases, the traditional
knowledge and oral histories are connected to the land. So it obligated Member States to respect
these values and confer certain rights to the indigenous people.
Article 23 obligates Member States to promote certain activities such as fishing, hunting,
trapping etc. and ensure participation of the people because these activities are important for
maintenance of their cultures and self-reliance economic development.
➢ U. N. Convention on Biological Diversity and Nagoya Protocol on Access to
Genetic Resources and Benefit Sharing
The Convention on Biological Diversity(CBD) recognizes the close ties of indigenous peoples
and local communities to biological resources and to the contributions that traditional knowledge
can make to the convention and sustainable biodiversity mentioned in article 8(j). Article 15 lays
down provisions with respect to access to Genetic resources. Furthermore, Article 16 provides
that access to and transfer of technology to developing countries are to be provided and / or
facilitated under fair and most favourable terms. Article 18(4) urges the contracting parties to
develop methods of cooperation.
One of the objectives of the CBD is the fair and equitable sharing of benefits arising from the
utilisation of Genetic resources. The Nagoya Protocol was adopted to advance this initiative. It
noted the interrelationship between Genetic resources and traditional knowledge, their
inseparable nature for indigenous and local communities, the importance of the traditional
knowledge and so on.
➢ The Cartagena Protocol
The objective of this protocol is to ensure that the development,handling, transport, use, transfer
and release of any living modified organisms(LMOs) are undertaken in a manner that reduces the
risks to biological diversity and is careful towards human health. Article 4 of said Protocol
defines its scope.
7
➢ U. N. Declaration of the Rights of Indigenous People(UNDRIP)
Article 13 of the Declaration recognises the right of indigenous and also Article 31 States to
respect and protect the rights of the indigenous people which is extremely important factor in
order to protect traditional knowledge.
•Protection of Traditional Knowledge in Bangladesh
There are various laws available in regards to protecting the traditional knowledge in
Bangladesh. The first and foremost thing that is needed to be ensured is protection of the
indigenous communities in this country.
Protection of Plant Varieties and Farmers' Rights Act,2001 specifically protects farmer's
rights and recognises and protects plant varieties. Geographical Indications Act,1999 was
enacted to provide for the registration and better protection of G. I relate goods and provide
protection to Traditional knowledge. Trade Marks Act,1999 has provisions relating to collective
marks and certification trade marks which can be useful to indigenous people. Bangladesh
Biodiversity Act,2017 regulates the biodiversity conservation and sustainable use of its
resources and promotes fair and equitable share of the benefits derived from their use which can
be helpful to the indigenous community.
■Own Commentary
Before commenting about the protection regarding the traditional knowledge, I want to revisit
the laws of Bangladesh related to this topic. In my opinion the existing legal framework of this
country is not sufficient enough to protect the traditional knowledge and indigenous
communities. As I stated before, the safety and security of indigenous people is the basic concern
8
here but the position of indigenous communities in this country are not always stable and news
of tragedy and exploitation can be seen. Historically indigenous people of Bangladesh have
struggled against colonialism, feudalism, racism and were one of the most deprived and
neglected groups of people in Bangladesh as even in 2011 Bangladesh didn't recognise their
existence as indigenous community. In 2007, Bangladesh abstained from voting for or against
the UN Declaration of the Rights of Indigenous Peoples because of this reason. Lack of
recognition resulted in abuse and failure of protection of the indigenous groups. Lack of
recognition meant lack of protection, lack of opportunity to enjoy rights which, in my opinion, is
the ultimate abuse and exploitation of the Tribal and indigenous groups. Protection of traditional
knowledge is not imaginable without protection of indigenous people. This is why we need to
first protect these people to conserve and preserve their valuable knowledge.
The Berne Convention is partially applicable in Bangladesh. Being part of the national Union
and consent of the Union is not needed. This can result in underrepresentation of indigenous
people in political and international ground. Also despite being a member state of ILO,
opportunities of the indigenous people in the workplace are next to none. They are not provided
with any special training and oftentimes are not given their basic rights. These structural
inequalities and societal exclusions are the reasons for traditional knowledge to be undermined
and misused.
Another issue is that even though Bangladesh is rich in Genetic resources and traditional
knowledge, the country does not have any effective legal framework or administrative
mechanism for the sole protection of traditional knowledge to obtain appropriate benefit from
them.
The IP knowledge and awareness among the indigenous people and also public officials are at a
modest level and there is no organised framework to make things work beneficially.
In order to ensure protection and preserve the traditional knowledge, we need to address these
issues and create an organised and strict legal framework that will protect the rights of the
indigenous people as well as their knowledge.
In conclusion, traditional knowledge is at the core of indigenous peoples' identities, cultural
heritage and livelihoods. It has the potential to play a crucial role in sustainable development and
solving the most pressing global problems. So recognising the importance of traditional
9
knowledge and rights of the indigenous is necessary to protect and preserve their traditional
knowledge.
References:
1) V. K. Ahuja-Laws Relating to Intellectual Property
2) WIPO Intellectual Property Handbook
