Traditional knowledge

What is traditional knowledge?

Tradition refers to an inherited, established, or customary pattern of thought, action, or behavior and knowledge is defined as an understanding of or information about a subject that you get by experience or study, either known by one person or by community of people generally. Finally, Traditional knowledge refers to the long-standing knowledge, ideas, practices that may have been done as a part of customs and traditions by indigenous and local communities around the world. It is a collective rather than an individual's property. To understand this term we need to understand who "Indigenous people" are. They, as under the Indigenous and Tribal Peoples Convention, 1989 are those

1. Tribal people who are distinguished from the other national groups by virtue of their economic, social and cultural conditions and governed, partially or completely, by their own customs and traditions.
2. Such people who are regarded as indigenous by virtue of their descent.

Sushruta Samhita

The same has been created, practiced and passed down from generation to generation. Traditional knowledge can be created using genetic resources in the form of artistic work, style of work, symbols, medicines or medical procedures, food, textile, methods of agriculture etc. It can be passed down verbally which is the case for most traditional knowledge or in written forms such as -the Atharvaveda(1500-1000BC) and Sushruta Samhita (4th century BCE) from India, Bencao Gangmu (Compendium of Materia Medica) (1596 CE) from China and Kahun Papyri (c. 1800 BCE) from Egypt.

Traditional knowledge is a very important aspect especially in regions with abundant biodiversity, like India. Such knowledge gets special emphasis in the east more than the west as the latter is more futuristic focused and looks to develop new concepts, ideas and commodities rather than use age old trusted methods.

What are official definitions of traditional knowledge?

There is no internationally accepted definition of traditional knowledge. Looking at various definitions will help us get a holistic understanding of the same and insight into how each party views it.

In legislations-

The Punjab and Haryana High court in a seminar defined traditional knowledge as " Traditional Knowledge (TK) is essentially culturally oriented or culturally based, and it is integral to the cultural identity of the social group in which it operates and is preserved. “Traditional knowledge” is an open-ended way to refer to tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity."

In International instruments-

World Intellectual Property Organization (WIPO) defines traditional knowledge as the knowledge, skills, practices, and know-how that are developed, sustained and passed on from generation to generation within a community, often forming a part of its cultural or spiritual identity.

The Convention on Biological Diversity under Article 8(j) states that traditional knowledge refers to the awareness, inventions and traditions of local and indigenous cultures globally. It is acquired from experience gained over the centuries and adapted to the regional, local culture and environment. It can be transmitted orally from generation to generation and belongs collectively to the community and takes the forms of stories, songs, folklore, proverbs, values, beliefs, community rules, traditions and agricultural practices for plant species and animal breed growth.

The UNESCO talks about traditional knowledge in the sense that it is mainly of a practical nature, particularly in such fields as agriculture, fisheries, health, horticulture, forestry and environmental management in general.

In official documents-

The Indian journal of traditional knowledge defines it as "to mean knowledge, innovations and practices of indigenous and local communities embodying traditional life-styles; the wisdom developed over many generations of holistic traditional scientific utilization of the lands, natural resources, and environment."

Traditional Knowledge Digital Library (TKDL) -

In June 1999, the then Planning Commission under the Central Government constituted a “Task Force on Conservation and Sustainable Use of Medicinal Plants”. One of its objectives included identification of measures to facilitate the protection of “patent rights and IPR of medicinal plants”. One of the several recommendations of the Task Force, was creation of a library to ensure collation of traditional knowledge on one platform, which is available digitally and is helpful in proving to the world that traditional medicinal knowledge with India is prior art due to which, patent applications based on such knowledge will not fulfil the criteria of novelty. Thus, a database of India’s traditional knowledge, took birth.

Traditional Knowledge Digital Library (TKDL), is a database of over 2,50,000 formulations used in traditional medicine systems in India, namely, Ayurveda, Siddha, Unani and Yoga. This is an initiative of India to prevent misappropriation of country’s traditional medicinal knowledge at international patent offices on which healthcare needs of more than 70% population and livelihood of millions of people in India is dependent. The world has noted India’s move towards a defensive protection in preparing the digital library, so as to curb biopiracy and misappropriation of traditional knowledge.

However, mere acknowledgement is not sufficient, rather the implementation of an equitable benefit sharing mechanism which is imperative. In 2005, the TKDL expert group estimated that about 2000 wrong patents concerning Indian systems of medicine were being granted every year at international level, mainly due to the fact that India’s traditional medicinal knowledge which exists in local languages such as Sanskrit, Hindi, Arabic, Urdu, Tamil, etc. is neither accessible nor comprehensible for patent examiners at the international patent offices.

Features of Traditional knowledge:

1. Cultural and Environmental Relevance - Traditional knowledge is deeply rooted in the culture, society, and environment of the communities that uphold it. It encompasses essential insights into agriculture, medicine, ecosystems, rituals, and folklore, serving as both a practical knowledge system and an expression of identity and heritage.
2. Dynamism - Traditional knowledge is not static; it adapts over time based on geography, climate, modes of transmission, and evolving social structures. This flexibility allows communities to refine and sustain their practices in response to changing conditions.
3. Generational handover - Passed down through oral traditions, customs, and communal practices, traditional knowledge evolves while maintaining its core principles. Each generation contributes its experiences, ensuring continuity while keeping it relevant to contemporary challenges.
4. Community Ownership - Unlike conventional intellectual property, which is individually held, traditional knowledge belongs collectively to communities. This shared ownership presents challenges in protection under current IPR systems but remains fundamental in safeguarding against exploitation and misappropriation.

Traditional knowledge under the IPR act:

Traditional knowledge as a legal concept came about as a branch under intellectual property rights (IPR) that spurt on the global platform with the finalization of Convention on Biological Diversity (CBD), 1992. Although there is no set definition as to what constitutes as traditional knowledge, Section 3(p) under Chapter II in the Patents Act, 1970 (amended in 2005) lays down restrictions for patenting of an invention which in effect is, traditional knowledge or a duplication of the same. For example- a patent application for a process for preparing a batch of an improved "Chyawanprash" discloses the process involving the cutting, roasting and mixing of dry fruits and then adding it to the Chyawanprash under the above mentioned section as not an invention therefore not patentable.

There are various other sections in this act that protect the traditional knowledge such as Section 2(1)(j) which talks about what qualifies as an invention, Section 3(e) which states that mere mixture of components does not equate to an invention and such patents are bound to be revoked under Section 25(1) and Section 25(2).

GI tags of famous items and traditional knowledge led products in India, region wise

On a tangent, the Geographical Indications (GI) Act, 1999 has a helping hand in preserving the traditional knowledge of a region as The act protects those products that have a particular geographical origin and are linked with traditional knowledge. GIs are particularly useful in the field of agricultural products and traditional handicrafts. For example, GI protection for Basmati rice ensures that only rice grown in specific regions of India and Pakistan can market themselves as "Basmati."

Methods of Protection -

There are 2 main methods that can be deployed under our current IPR framework. Additionally, they must be viewed and given subjective consideration to the original knowledge stakeholders.

Basis	Positive Protection	Defensive Protection
Definition	Grants intellectual property rights (IPRs) to traditional knowledge holders, enabling them to patent, license, or benefit from their knowledge.	Prevents third parties from wrongfully patenting or claiming rights over traditional knowledge by making it publicly accessible.
Legal Mechanism	Uses existing patent laws, sui generis systems, and benefit-sharing agreements to protect TK holders.	Establishes public databases and documentation to ensure TK is recognized as prior art and cannot be patented elsewhere.
Examples	- Prior Informed Consent (PIC): Requires consent from indigenous communities before using their TK. - Benefit-Sharing: Ensures communities receive fair compensation for commercial use of their TK.	- Traditional Knowledge Digital Library (TKDL): A database of traditional Indian medicinal knowledge used to challenge wrongful patents. - Revocation of Turmeric Patent: India successfully revoked a U.S. patent on turmeric's medicinal properties using documented evidence.
Objective	Empowers local communities by granting them legal and economic control over their TK.	Protects TK from biopiracy and misuse by ensuring its public recognition as prior art in patent applications.
Challenges	- Lack of specific TK protection laws in India. - Difficulty in defining ownership within communities. - Issues in enforcing rights internationally.	- Requires extensive documentation and digitization of TK. - Risk of commercial exploitation without fair compensation to the TK holders.
Indian Initiatives	- Biological Diversity Act, 2002 (mandates benefit-sharing). - Protection of Plant Varieties and Farmers’ Rights Act, 2001 (grants plant breeders' rights).	- Traditional Knowledge Digital Library (TKDL) (collaboration with global patent offices). - Ayurvedic, Unani, Siddha, and Yoga (AYUSH) Systems database.

The discrepancies between the two are not rigid, therefore, both strategies can be used successfully to safeguard conventional information.

According to a paper published by The Minnesota Journal of Law, trade secret is probably the form of security for traditional knowledge among the predominant intellectual property regimes. The paper goes on to state that the first step towards protection is the realization of it's value by it's holders; they must be aware of their rights and long term benefits they will gain as a community if their knowledge is protected as a trade secret. But this is still an low researched option.

Regulation of traditional knowledge -

In addition to the available protection, India, in line with the creation of the Convention on Biological Diversity and their commitment to it, they created The Biological Diversity Act, 2002. This act helps regulate the access to genetic and biological resources and associated traditional knowledge. It entails frameworks for regulating access by domestic and foreign entities. This act aims for sharing benefits with the conservers of biodiversity, holders and creators of accessory knowledge. It sets up a 3-tier structure for regulation

1. National Biodiversity Authority - at the national level
2. State Biodiversity Boards - at the state level
3. Biodiversity Management Committees - at the local body level

The regulation of access to bioresources and associated knowledge comes under the purview of Sections 3, 4 and 6 which come under the ambit of the National Biodiversity Authority primarily. he procedure for access involves the submission of Form I and compliance under Rule 14 of the Biological Diversity Rules 2004.

The Biodiversity Amendment Bill, 2021 was tabled with an aim to promote the cultivation of medicinal plants by farmers and empower local communities to make better use of natural resources, especially those with medicinal value. One of the integral provisions is the removal of the requirement for certain individuals, such as registered AYUSH medical practitioners and those with access to codified traditional knowledge, to notify state biodiversity boards before using biological resources for specific purposes. The bill also strengthens the role of state biodiversity boards by allowing them to represent Biodiversity Management Committees (BMCs) in decisions regarding the sharing of benefits from resource use. Additionally, the proposed amendments exclude cultivated medicinal plants from the scope of the Act, simplifying regulations for those engaged in their farming and trade.

Examples of traditional knowledge:

1. Turmeric (Curcuma longa) is a plant of the ginger family yielding saffron-colored rhizomes used as a spice for flavoring Indian cooking. Its unique properties also make it an effective ingredient in medicines, cosmetics and as a color dye. As a medicine, it is traditionally used to heal wounds and rashes.
   

   Products with Neem as their star ingredient.
   

   Arogyapacha plant
2. Neem (Azadirachta indica) is a leaf widely worshipped as the "curer of all ailments" in the East. It's uses are many in number but it is most merited as a general antiseptic. Today, we can find multiple products in our skincare and healthcare industry that promote it's products with the Unique selling point as inclusion of neem/neem extract. Neem has proved effective against certain fungi that infect the human body. Such fungi are an increasing problem and have been difficult to control by synthetic fungicides.
3. Champi is an ancient Indian practice of method of hair oiling that dates back to ----- century. Most Indians owe their long lustrous hair to this method. The combination of plant oils along with the champi method which focuses on the vital pressure points has generational proof of increasing blood flow to the head and hair follicles in turn allowing for better hair growth and access to nutrients in the blood. Champi has a lot of history to it, from the making of the hair oils to the oiling process itself. But these methods of gentle head massage in various motions means much more than just a beauty treatment in Indian households, it is a bonding ritual. Mothers give their children champi and they in turn give the younger child in the house and so it goes on. This is family bonding time where long conversations are drawn out and emotions unfurl.
4. Arogyapaacha (trichopus zeylanicus) is a herb usually found in Sri Lanka, Malaysia and Southern India. "Jeevani" is a herbal medicine developed by the scientists of the Tropical Botanic Garden and Research Institute in Kerala. It's roots lie in the Kani tribe found in the Thiruvananthapuram district and is proven to have the significant changes in a person such as increase in body's natural defense, delayed type hypersensitivity reaction and antibody synthesis, activation of cellular immune system and anti- fatigue effects.
   

   Turmeric

A case study-

The U.S patent law has long been posing as a serious threat to indigenous communities outside the US as most of the traditional knowledge of the indigenous people is undocumented and passed from generation to generation only by word of mouth. The provisions regarding revocation of patents on the grounds of prior art by foreign litigant having to satisfy the requirement in a publication or any other tangible form has severely been criticized by the international community. Such provisions make us think about the scope of terms such as novelty and their usage in legal provisions.

In 1995, the United States Patent and Trademark Office (USPTO) granted a US patent number 5,401,504 to Dr Suman K Das and Harihar Kohli, two Indian American scientists at the University of Mississippi for "the use of turmeric in wound healing." Their six patent claims covered the oral and topical use of turmeric powder to heal surgical wounds and ulcers. The criteria for any patents to be granted were-

1. Novelty- Must be a new innovation and not based off any existing prior knowledge.
2. Non- obviousness - The invention should not be obvious and familiar or predictable in terms of its steps in a general sense, therefore, making it completely unique.
3. Utility - It must be a useful innovation.

A re-examination claim with USPTO was file for the invalidation of patent application by the Indian Council for Scientific and Industrial Research (CSIR) on October, 1996 as the patent lacked the element of novelty on the ground of healing power of turmeric powder which was already found and put into practice in India for ages and had provided evidence that turmeric powder was a part of the traditional Indian knowledge-base and was not a discovery of the US patentee. The CSIR attorneys contented that use of turmeric to be a 'prior art' to treat wounds, cuts and rashes as a household item.

The inventors' response was trying to convince that that the powdered and the paste form differed from each other in means of quality of bioavailability, absorbability and that one of 'ordinary skill in the art' could not expect that powder could be put to the same use as the paste. It was also contended that the powder was to be taken with honey, which itself has healing properties.

Therefore, the USPTO revoked the patent, stating that the claims made in the patent were obvious and anticipated, and agreeing that the use of turmeric was an old art of healing wounds. In 1997, all the six claims were rejected by USPTO and the patent was finally declared invalid on 13th August after a year long battle.

Conclusion:

Traditional Knowledge is a very valuable resource that needs to be protected so that future generations inherit this collective wisdom. At the same time, it enables the communities owning this form of knowledge to benefit from its commercialization. This knowledge system is rooted in a lineage of wisdom cultivated over generations, aimed at fostering a harmonious coexistence between humanity and essential elements like natural resources and the environment. The holistic and traditional scientific use of land remains a fundamental pillar in both the preservation and continuation of this knowledge base.

Traditional knowledge has helped society evolve since the start of creation into societies today in areas such as development of agricultural and medicinal treatments, food security and water and sanitation. Bodies like the Economic advisory council to the PM in India help to document parts of traditional knowledge and culture and preserve it.

Challenges

However, Traditional knowledge, now more than ever faces a threat of disappearance. Participation of local communities in discussions with international bodies like World Trade Organization(WTO) and World Intellectual Property Organization(WIPO) has been very limited even though they are the biggest stakeholders when it comes to such topics. Most of the times, the communities upholding the tradition face threats such as assimilation into modern mainstream society or even outright annihilation threats.

The existing IPR system faces several challenges in protecting traditional knowledge:

1. It is primarily structured around individual or corporate ownership, whereas traditional knowledge is collectively held by communities.
2. Intellectual property protection is time-limited, conflicting with the perpetual and intergenerational nature of traditional knowledge.
3. The system follows a narrow definition of invention, requiring novelty and industrial applicability, whereas traditional knowledge evolves gradually through informal, incremental contributions over time.

At the end of the day, there is a need for a sui generis system that is separate from the existing IPR system to protect the traditional knowledge of the local and indigenous communities of India.

Need for protection of traditional knowledge

Developing nations often struggle to safeguard their traditional knowledge. Their awareness of its value has largely emerged due to scientific advancements in the West. A huge part of the world's traditional knowledge remains undocumented. Especially in countries like India, where some knowledge was recorded during colonial rule, these writings were not standalone texts but rather aids to an evolving oral tradition. Moreover, ancient records were never designed to meet the rigorous standards of modern patent law. Countries may find themselves advocating for their rights in foreign courts under the jurisdiction of another nation.

A key concern for India is that globalization is facilitating the commercialization of collective traditional knowledge allowing it to be appropriated for private gain. India remains a prominent center for the use of traditional plant-based medicines, a practice deeply rooted in its history. Protecting and fostering community-driven knowledge and innovation is essential. Efforts must focus on identifying, supporting, and expanding grassroots innovations.

References

https://www.manupatra.com/roundup/363/articles/ipr%20and%20traditional%20knowledge.pdf