Intellectual Property (IP) refers to the creations of the mind such as literary and artistic works, inventions, plant varieties and names, signs, and symbols. In recent years, local communities and indigenous people, and government (mostly in developing countries have demanded intellectual property protection for traditional forms of creativity and innovation, which under the conventional IP system are generally regarded as public domain. Although, the “public domain” status of Traditional Knowledge and Traditional Cultural Expressions (TCEs) has been rejected by local communities and indigenous people based on unwanted misappropriation and misuse of Traditional knowledge.
Traditional Knowledge refers to a living body of knowledge developed, sustained, and passed on from generation to generation within a community, often forming part of its spiritual and cultural identity.
The term TCEs refers to methods/forms in which traditional culture is expressed. For example, a song, handicraft, dance, ceremonies, and other artistic or cultural expressions.
The term GRs refers to Genetic Resources, defined in Convention on Biological Diversity (CBD). They are parts of biological material that contain the genetic information of value and capable of reproducing or being reproduced.
Traditional Knowledge and TCEs are handed down from one generation to another and developed by their constantly evolving holders, growing and being recreated. Intellectual Property tools can be used to prevent unauthorized or inappropriate uses of Traditional Knowledge/TCEs by third parties. IP protection can entail recognizing and exercising exclusive rights and, in other words, excluding others from carrying out certain activities and will also include moral rights, equitable compensation schemes, and protection against unfair competition.
The IP system can be approached from two different approaches to ensure Traditional Knowledge and TCEs, i.e., positive protection and defensive protection. Positive protection enables the holder to acquire and assert IP rights in their Traditional knowledge or TCEs that also safeguards unauthorized, unwanted, or inappropriate use by third parties or to exploit the Traditional knowledge commercially. Defensive protection prevents the illegitimate acquisition or maintenance of IP by third parties. It also aims to stop people outside the community from acquiring IP rights over their Traditional knowledge/TCEs. Although, if we take an example of India, it has a database of traditional medical knowledge that can be used as evidence of prior art by the patent examiner when assessing patent applications. Positive protection helps the holders of Traditional knowledge/TCEs to use it for their purposes. In contrast, a defensive shield means preventing anyone else except the holder from using it or accessing the tools.
Landmark Turmeric Patent Case
U.S. Patent 5,401,504 was initially granted with a claim directed at promoting healing of a wound in a patient, which consists essentially of administering a wound-healing agent comprised of an adequate amount of turmeric powder to said patient. Moreover, the patent application acknowledged the known use of turmeric in traditional medicine to treat various sprains and inflammatory conditions.
The patent application was examined, and the invention was considered novel at the time of application on the basic information than available with authority. But later, the patent was challenged and found invalid as further documentation was made available in the Sanskrit language that demonstrated that the claimed invention was already known as Traditional knowledge.
A sui generis law is often put in as a possible solution to better protect Traditional knowledge/TCEs on the unique needs of individual countries, depending upon their cultural and political conditions.