Critical.Evaluation.of.Laws.on.Traditional.Knowledge
Interface.Between.Right.to.Education.and.IPR:.Does.Copyright.Law.Inhibit. the.Enjoyment.of.Right.to.Education? 57
Akanksha Jumde, Deakin University, Australia
Nishant Kumar, Central University of Punjab, Bathinda, India
This chapter examines how copyright law affects the right to education and explores alternatives that aim to reconcile these conflicting rights It is structured into three sections: the first outlines the right to education as reflected in various national and international frameworks, highlighting the challenges posed by copyright restrictions on access to educational materials The second section analyzes the flexibilities within international copyright law, focusing on the doctrine of fair use and its effectiveness Finally, the chapter discusses alternatives to fair use and the potential impact of these supplementary mechanisms on educational access.
Access.to.Medicines.in.the.Light.of.Patent.Law.Regime.in.India:.A.Legacy of.Legislation.or.Lease.of.the.Judiciary?
Arbitration.in.Patent.Disputes:.To.What.Extent.Is.It.Possible? 76
Shaharyar Asaf Khan, Amity Law School, Delhi, India
Ashita Alag, Supreme Court of India, India
Commercial disputes between businesses aimed at enhancing international trade and technology increasingly involve patent issues Among various alternative dispute resolution (ADR) methods, arbitration is often favored over litigation This chapter examines the scope of patent disputes suitable for arbitration, highlighting the advantages of arbitration compared to traditional litigation It also addresses specific procedural aspects of arbitration that are particularly relevant to patent-related cases, requiring careful consideration by the parties involved.
Interface.Between.Right.to.Education.and.IPR:.Does.Copyright.Law.Inhibit the.Enjoyment.of.Right.to.Education?
Traditional.Knowledge.and.Arbitration.Dispute.Resolution:.Indigenous.
Venu Parnami Tuteja, Amity University, Noida, India
The unique intellectual property needs of Indigenous peoples differ significantly, leading to conflicts over culturally appropriate usage, knowledge sharing, and proper attribution Traditional court processes often fail to address these distinct social, cultural, and economic concerns, necessitating a redressal system that effectively protects their rights Alternative Dispute Resolution (ADR) methods, including negotiation, mediation, and conciliation, offer promising solutions for resolving disputes The World Intellectual Property Organization (WIPO) supports these efforts by providing ADR arbitration rules tailored for Indigenous peoples and local communities Established in 1994, the WIPO Arbitration and Mediation Centre facilitates the resolution of international commercial disputes, raising important questions about the effectiveness of ADR in addressing Indigenous issues and whether this centre serves as an appropriate forum for such matters.
Arbitration.in.Patent.Disputes:.To.What.Extent.Is.It.Possible?
Challenges.Related.to.Protection.of.Indigenous.Resources.Against
Zubair Ahmed Khan, University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, India
Protecting indigenous and aboriginal resources is crucial for biodiversity justice, as recognized by various international treaties that affirm the natural rights of tribal societies and indigenous communities However, practices such as biopiracy and conflicts of interest in bioprospecting agreements pose significant challenges for developing countries Implementing prior informed consent and benefit-sharing procedures can enhance socio-environmental sustainability It is essential to establish clear responsibilities for state biodiversity authorities and local committees to ensure transparency and accountability Additionally, conserving ethnobiological resources is vital in light of rising patent infringements, necessitating that patentability discussions include comprehensive disclosure of specification claims, even for foreign natural resources.
Traditional.Knowledge.and.Arbitration.Dispute.Resolution:.Indigenous People.and.Local.Communities
Anindya Bhukta, Netaji Mahavidyalaya, India
Sebak Kumar Jana, Vidyasagar University, India
Bio-piracy refers to the unauthorized use of a country's biological resources by individuals, institutions, or companies from other nations, with India being a significant victim due to its vast bio-resources This article explores the impact of bio-piracy on India's food security, highlighting how the introduction of genetically modified (GM) seeds has exacerbated farmers' distress by increasing cultivation costs and monopolizing the seed market Multinational corporations (MNCs) have leveraged technology to create seeds that can only be used once, forcing farmers to abandon traditional practices of seed saving and sharing The paper provides various examples of bio-piracy in India and discusses its detrimental effects on both food and health security, particularly concerning the theft of medicinal plants and traditional healing knowledge It emphasizes the urgent need for initiatives from governments and NGOs to document both codified and non-codified traditional knowledge to combat these challenges.
Biopiracy:.Challenges.Before.India
Protection.of.Indian.Traditional.Rice.Varieties:.Role.of.PPV.and.FRA 158
Moghanraj Yadhav G., VAANGHAI, Nagapattinam, India
Balaguru Balakrishnan, Jamal Mohamed College, Tiruchirappalli,
Nagamurugan N., Government Arts College, Madurai, Tamilnadu, India
Farmers have sustainably maintained crop genetic diversity through cross-breeding for generations, but commercial competition has led to the exploitation of traditional varieties To protect these crops, the Indian government established the Protection of Plant Varieties and Farmers' Rights Act (PPV and FRA), which grants rights and ownership of crop breeds to the traditional farmers who developed them Researchers, in collaboration with the NGO VAANGHAI, have worked with traditional farmers in the Cauvery River delta region of Tamil Nadu to characterize and register around 69 unique rice varieties under the PPV and FRA These varieties were assessed based on their distinctiveness, stability, uniformity, and adaptability, with many being successfully registered.
Protection.of.Indian.Traditional.Rice.Varieties:.Role.of.PPV.and.FRA
Sudha Jha Pathak, Bennett University, India
Bihar's rural subconscious is rich with memories of history, culture, and tradition, deeply expressed through the folklore, songs, and paintings created by women These women have long been the custodians of heritage, embodying a sub-stratum of power and energy that dates back to ancient times Madhubani painting emerges as a communal spiritual experience, serving not only as an aesthetic marvel but also as a reflection of collective consciousness, showcasing the traditional knowledge of women artists and transmitting ancestral motifs Its unique artistry and geographical significance have earned it a Geographical Indication (GI) tag from the government, attracting the attention of art connoisseurs, scholars, and tourists worldwide, thereby establishing a distinctive niche in the art world.
Women.Custodians.of.Tradition
Intellectual.Property.Management.by.Innovative.Firms:.Evidence.From.
Chiraz Touil, IHEC, University of Sfax, Tunisia
Souhaila Kammoun, IHEC, CODECI, University of Sfax, Tunisia
This chapter emphasizes that innovation generates value only when it is legally protected, as the law plays a crucial role throughout the innovation lifecycle Legal protection transforms innovation into intangible assets for companies, including patents, trademarks, designs, and databases It outlines various legal options that firms can utilize to foster innovation both internally and externally Additionally, the chapter highlights the need for firms to optimize their accounting and tax strategies concerning innovative activities Effective legal management is essential for structuring the corporate framework appropriately to support innovation The authors also illustrate that safeguarding innovation enables firms to leverage it through various legal mechanisms, such as contractual assignments and licensing agreements Ultimately, the legal management of innovation is identified as a key factor in the success of innovative firms.
Traditional.Knowledge.and.State.Compliance:.A.Case.Study.From.New.
Claudia Masoni, an Independent Researcher from Italy, examines Indigenous traditional knowledge and traditional ecological knowledge within the framework of international intellectual property (IP) instruments The chapter critiques major international IP law regimes, including the Agreement on Trade-Related Aspects of Intellectual Property Rights and the Convention on Biological Diversity, highlighting their inadequacies in protecting Indigenous peoples' knowledge and the biological resources they manage The New Zealand case, Wai 262, illustrates how international economic pressures often overshadow efforts to establish national sui generis IP instruments designed to safeguard Indigenous knowledge.
I am delighted to introduce this book, which significantly enriches the discourse on the intersection of culture, Traditional Knowledge (TK), and Intellectual Property Rights (IPR) Knowledge plays a crucial role in guiding humanity towards sustainable development While some anthropologists and scholars recognize this importance, it remains underappreciated by many.
Science is deeply intertwined with the diverse cultures and civilizations around the world, leading researchers and policymakers to acknowledge the significance of local knowledge systems in tackling development and environmental challenges The United Nations recognized this by declaring 1993 as the "International Year of Indigenous Peoples" and designating 1995 to 2004 as the "Decade of Indigenous Peoples." Indigenous communities have amassed a wealth of traditional knowledge (TK), which is increasingly being utilized for health improvements, particularly in countries like India This growing interest in traditional medicine has heightened awareness and accessibility to alternative healthcare options A recent book explores not only intellectual issues but also real-world challenges such as biopiracy, health access, education, and sustainable agriculture, emphasizing the promotion of sustainable development and equitable benefit-sharing from TK It highlights the contemporary relevance of managing biodiversity within the frameworks of intellectual property rights (IPR) and TK, examining the tensions and synergies between cultural heritage and IPR protection By showcasing specific case studies and cutting-edge research, this work underscores the crucial role of indigenous knowledge in the commercial, medical, and social spheres, making it a significant contribution to humanity’s understanding of these vital issues.
Foreword bio-piracy, among others This work would find broad appeal among academicians, researchers, policymakers and those who are promoting new ideas in their capacity
My congratulations to Professors Nisha Dhanraj Dewani and Amulya Gurtu for editing this book and including worthy authors from industries.
Indian Patent Office, Government of India, India
Kishan S Kardam , after working for 37 years in the Indian Patent Office at various positions, retired in
Dr Kardam served as the Senior Joint Controller of Patents & Designs at the Delhi Patent Office until July 2019, where he was responsible for leading the office and representing India at the International Searching Authority (ISA) and the Indian International Preliminary Examining Authority (IPEA) under the Patent Cooperation Treaty He holds a Master’s degree in Organic Chemistry from Agra University, along with both a Bachelor’s and a Master’s degree in Law from Delhi University, where he also earned his Ph.D in Intellectual Property Law An accomplished scholar, Dr Kardam has published numerous papers on intellectual property and has actively contributed to the revision and amendments of the Patents Act.
Between 1999 and 2005, he played a significant role in developing the Traditional Knowledge Digital Library (TKDL) in India as a task force member He designed the framework for electronically capturing information within the TKDL and established the Traditional Knowledge Resource Classification (TKRC) to enhance the searchability of the library.
He conducted a research study in Japan on the economic and technological significance of the utility model to India, supported by WIPO His research included an analysis of international patent systems, such as those of the United States, Europe, Japan, China, Germany, and Malaysia Additionally, he delivered numerous lectures on Intellectual Property Rights at various seminars and workshops both in India and internationally He also contributed to the development of the Manual of Patent Office Practice and Procedure (MPOPP) and examination guidelines for inventions in fields like Biotechnology, Traditional Knowledge, Pharmaceuticals, and Computer Related Inventions (CRI).
In recent years, knowledge has emerged as a crucial factor in the development and success of nations, particularly through the lens of Intellectual Property Rights (IPR) IPR grants individuals the ability to protect valuable intellectual properties, akin to the rights associated with physical property, safeguarding products and services from unauthorized duplication While traditional innovation remains important, Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) have gained prominence in IPR research, especially considering that indigenous peoples, who comprise about six percent of the global population across seventy-two nations, are custodians of 90 percent of the world’s biological resources Unfortunately, many unscrupulous entrepreneurs exploit and misappropriate these intellectual properties, leaving indigenous communities unable to leverage their heritage Thus, there is an urgent need to protect TK from threats like bio-piracy and illegal bio-prospecting, which undermine indigenous rights by allowing corporations to exploit natural resources without consent This unethical extraction not only jeopardizes cultural heritage but also poses a significant threat to ecosystems Protecting the traditional rights of indigenous peoples is essential for justice and enables them to preserve their heritage, ultimately contributing to vital areas such as food security, agriculture, and healthcare development.
Emerging economies such as India, South Africa, China, Indonesia, and the Philippines possess a rich biodiversity heritage that can enhance sustainability efforts To foster sustainable development and protect intellectual property rights (IPR), it is essential to preserve traditional knowledge This research highlights the importance of equity, conservation, and the safeguarding of traditional practices and culture, while also addressing the prevention of unauthorized appropriation of traditional knowledge components Promoting the significance of traditional knowledge in development further enriches this subject.
Traditional knowledge (TK) lacks a universally accepted definition, yet many countries have implemented sui generis systems to safeguard this essential knowledge embedded in mainstream cultures through intellectual property rights (IPRs) This book explores three key areas of TK: first, the technical know-how and innovations related to biodiversity, agriculture, and health; second, traditional cultural expressions, including folklore, music, art, designs, symbols, and performances; and third, genetic resources, which encompass valuable genetic material from plants, animals, and microorganisms Each of these fields requires protection through IPR, and this book addresses the challenges associated with them while offering valuable insights for effective management.
This work aims to address the longstanding issue of Intellectual Property Rights (IPR) and Traditional Knowledge (TK) by examining them together It provides an in-depth analysis of various national and international laws, regulations, treaties, and legal instruments designed to protect these areas, featuring contributions from multiple authors Additionally, the book discusses the TRIPS agreement and includes case studies that illustrate the Dispute Settlement Mechanism.
The book is organised into 11 chapters A brief description of each chapter is as follows:
Chapter 1, "Critical Evaluation of Law on Traditional Knowledge," highlights the importance of traditional knowledge (TK) and examines existing laws surrounding it The current intellectual property rights (IPR) system fails to adequately protect TK, particularly when it comes to commercial exploitation without benefit-sharing This practice infringes on the rights of indigenous cultures, as it is unjust for their traditional knowledge to be patented and used commercially without compensation The chapter emphasizes the value of traditional medicinal knowledge derived from plants and herbs, advocating for fair treatment and recognition of indigenous contributions.
Preface benefit India in the development of drugs India also needs legislation on protecting
This chapter focuses on establishing effective laws for Traditional Knowledge (TK) by examining the stances of various countries on this important matter It systematically discusses the development of policies aimed at ensuring fair benefit-sharing from the commercial use of TK Additionally, the chapter highlights similar initiatives implemented elsewhere to safeguard Traditional Knowledge.
Chapter 2, "Access to Medicines in the Light of Patent Law Regime in India: A Legacy of Legislation or Lease of the Judiciary," examines the evolution of patent law in India, focusing on its impact on access to healthcare It discusses the interplay between international intellectual property agreements and India's patent regime, which aims to ensure affordable healthcare for its citizens The chapter emphasizes the crucial role of the Indian judiciary in safeguarding the rights of individuals to access essential medicines, reflecting the legislative responses to global IPR developments.
Chapter 3, "Interface Between Right to Education and IPR: Does Copyright Law Inhibit the Enjoyment of Right to Education?" examines how the Indian judiciary interprets and applies fair use of copyright materials, highlighting the significant cost of educational resources The right to education is a fundamental human right recognized in both international and domestic law, forming a crucial part of the Right to Life under the Indian Constitution The landmark Delhi University Copyright Case demonstrates the Indian judiciary's preference for user rights over copyright holders, contrasting with international trends that often favor copyright holders Pro-user initiatives like Creative Commons and open-access learning tools promote access to copyrighted materials, and there is potential for legislative support to enhance authors' reach and provide educational access to their works Additionally, this chapter compares the interpretation of "fair use" in the judiciary of other countries, including the USA and the UK.
Intellectual.Property.Management.by.Innovative.Firms:.Evidence.From Tunisia
Many individuals struggle to convert their knowledge into formal specifications and, ultimately, wealth due to factors such as poverty, illiteracy, isolation, and lack of access to information and technology This chapter critically examines the challenges faced by traditional knowledge and evaluates the legal protections available under various laws, as well as the international context It also explores efforts made at national and regional levels to safeguard traditional knowledge Finally, the chapter offers recommendations for enhancing its protection and improvement.
Many individuals globally possess the potential to transform their traditional knowledge (TK) into structured formats and ultimately generate wealth However, factors such as illiteracy, poverty, lack of awareness about technological advancements, and difficulty in using gadgets often hinder this process (Singh, 2008) Illustrative cases highlight these challenges.
• The big business houses, hoteliers, film industries and music tycoon are using cultural expressions of nomadic, tribal and village community.
• The pharmaceutical industry widely uses the rich heritage of TK TK is used in allopathic and Ayurveda medicine.
Critical Evaluation of Laws on Traditional Knowledge
Critical Evaluation of Laws on Traditional Knowledge
Village communities, tribal, and indigenous peoples possess traditional knowledge (TK) of biodiversity, which is crucial for conserving genetic resources essential for breeding activities However, multinational corporations (MNCs) that dominate the seed industry may exploit this knowledge through intellectual property rights (IPR) regimes, leading to significant profits at the expense of these communities.
Hence, the research has four objectives:
• To evaluate existing laws on TK.
• To understand the international and regional perspectives on TK.
• To evaluate the challenges to the protection of TK and efforts taken for the protection of the same.
• To suggest measures for the protection and preservation of TK.
Indigenous peoples possess a profound understanding of their environment, developed over centuries of close interaction with nature According to Mayor (1994), this knowledge encompasses the rich diversity of complex ecosystems, including detailed insights into the properties of local plants and animals, as well as the techniques for effectively using and managing these resources.
In rural areas of developing countries, local species are vital for providing food, medicine, fuel, building materials, and various other products The cultural identity of these communities is deeply rooted in the knowledge and understanding of their environment, reflecting the close relationship between the people and their natural resources (Ellen, 2000).
TK can be transformed into wealth by offering valuable insights that lead to the development of beneficial practices and processes for humanity These insights can significantly reduce the time and financial investments required in modern technology and various industries focused on research and product development.
The current Intellectual Property Rights (IPR) system is founded on individual private property rights, which creates a conflict with Traditional Knowledge (TK) that focuses on collective creation and ownership TK can be categorized into four distinct groups, highlighting its unique nature in contrast to conventional IPR frameworks.
• Knowledge possessed by society about TK with or without records and is inconsistent use by people, e.g everyday use of neem and turmeric.
• Information public holds through texts for use and its examination, e.g Ayurveda text, the information in the palm leaves.
• Information that is not documented or commonly unknown outside a small group of people and not revealed outside the group, for example, tribal knowledge.
Critical Evaluation of Laws on Traditional Knowledge
• Information known only to individuals and members of families, e.g cure of asthma by the Bathini Goud family using a specific fish variety as a means for a dispensing anti-asthma drug.
The current Intellectual Property Rights (IPR) system fails to adequately protect Traditional Knowledge (TK), as it does not meet the criteria of being new and non-obvious (Gopalakrishnan, 1998) This inadequacy allows for the appropriation of TK for commercial purposes without fair benefit-sharing, undermining native cultural teachings and commodifying their heritage Protecting TK is essential to counteract fraudulent claims on intellectual property, and leveraging the TK associated with plant-based medicine could significantly enhance India's drug development efforts.
The Society for Research and Initiatives for Sustainable Technologies and Institutions (SRISTI) in Ahmedabad has been actively developing databases of traditional knowledge (TK) and innovations in partnership with local communities To recognize and reward individual and collective innovators for the commercial application of their knowledge, a global registration system is proposed The establishment of a People Biodiversity Register is recommended to achieve these objectives.
• To provide a record of local knowledge for the use of present and future generations of village community people.
• To promote the revitalising of the local community by
◦ rewarding outstanding knowledge, skills, techniques and conservation practices.
◦ recognising the range of such knowledge.
◦ validating and promoting sound local knowledge and resource management traditions.
◦ promoting inter-community transfer knowledge for capacity enhancement.
• To alert conservationists about the need for action concerning threatened resources and the need for protection of local resources rights.
Critical Evaluation of Laws on Traditional Knowledge
To safeguard local biodiversity and traditional knowledge from exploitation by companies, particularly through the patenting of modified products and biological resources, the first people's biodiversity register was established and released in 1997 It is proposed that this vital register be maintained at the panchayat level to ensure its protection and accessibility.
The government of India has developed a digital library focused on Traditional Knowledge (TK) related to medicinal plants and systems, facilitating the classification of TK resources Key features of this library include comprehensive documentation, accessibility for researchers, and a structured database that promotes the preservation and utilization of traditional medicinal knowledge.
1 It records approximately 35,000 Ayurvedic medicinal formulations based on
2 The details of formulations include descriptions, methods of preparation and TK. claim, the botanical name of plant and disease, which can be cured.
3 Sanskrit text of formulations is translated in many foreign languages.
4 This will be available to almost all patent offices over the world to search and examine any prevalent use and prior art This will help in preventing bio-piracy.
5 This will eliminate the problem of the grant of wrong patents since its knowledge is available to the patent examiner.
The Regional Tribal Research Centres and the Indian Council of Agricultural Research are actively engaged in documenting Traditional Knowledge (TK) Numerous universities and research institutions have conducted ethnobotanical studies, which are essential for safeguarding TK It is crucial to compile and document these valuable research findings (Antons, 2009).
The Jawaharlal Nehru Tropical Botanic Garden & Research Institute (TBGRI) in Palode, Thiruvananthapuram, exemplifies respect for traditional knowledge (TK) by partnering with the local Kani tribe to share the benefits of a new herbal medicine called Jeevani This collaboration highlights the significant health properties of the plant Trichopus zeylanicus, which were shared by Kani tribe members residing in the forested Western Ghats As part of the agreement, TBGRI will provide initial fees and ongoing royalties to the Kani tribe.
Critical Evaluation of Laws on Traditional Knowledge
LEGISLATIVE INITIATIVES FOR THE PROTECTION
OF TRADITIONAL KNOWLEDGE IN INDIA
Patent Amendment, 2002 reflects concerns for TK The following provisions are supportive of the protection of TK:
1 Innovations based on TK or aggregation or duplication of known properties of TK is not patentable.
2 Patent applicants must disclose the source and the geographical origin of biological material used in an invention.
3 Failure to disclose the source and geographical origin of biological material used in the invention would be good ground for opposing the patent application.
Biodiversity legislation aims to conserve biological diversity, promote the sustainable use of its components, and ensure equitable sharing of benefits derived from biological resources The National Biodiversity Authority (NBA) has been established to combat bio-piracy and regulate the transfer of research results related to biodiversity.
Under Section 4 of the Act, individuals must obtain prior approval from the National Biodiversity Authority (NBA) before transferring research results related to biological resources from India to non-citizens or foreign entities Additionally, Section 6 mandates that any application for intellectual property rights (IPR) based on research involving Indian biological resources requires NBA approval The NBA may impose benefit-sharing fees or royalties and has the authority to contest IPR grants in other countries for biological resources originating from India.