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AN OVERVIEW OF THE SUI GENERIS SYSTEM FOR PROTECTING INDIGENOUS KNOWLEDGE WITH AN ADDITIONAL FOCUS ON INTEGRATION OF GEOGRAPHICAL INDICATIONS

September 1, 2024

*Mr. Atriyo Bhattacharya

INTRODUCTION

The protection of Indigenous knowledge in the face of the vast, systematic, globalized markets is a pressing challenge. The subtle conflict between the rights of the community and individual rights under the regime of IPR underscores the complexity of the issue. The need to protect the 'Knowledge', particularly Traditional Knowledge, in the public domain is crucial and essential for preserving the rights of the Indigenous along with national heritage. This necessitates the requirement of a unique protection mechanism, the 'Sui generis Model', which India has partially adopted in the Protection of Plant Variety and Farmers Rights Act, 2001. However, this protection mechanism is yet to be extended to Traditional Knowledge (TK) and Traditional Cultural Expression (TCE).

WHAT IS THE SUI GENERIS SYSTEM?

The term “sui generis” means “of its own kind”. The system intends to provide a protection mechanism outside the realm of IPR. It's important to note that traditional IPR systems, with their emphases on individual property rights, have proven to be inadequate for protecting Indigenous knowledge. They have failed to respect the essentially collective nature of TK and TCE, underscoring the need for a new approach like the sui generis system.

To address this concern, India needs to introduce a tailor-made sui generis system specifically for the protection of TK and TCE. This would involve the adaptation of certain aspects of the already existing IPR regime to the particular characteristics of TK and TCE, such as their community and cultural values, for better recognition and appropriate protection under the law. Key elements of such a system would include understanding policy requirements, identifying beneficiaries, and emphasizing principles like ‘benefit sharing’ and ‘prior informant consent’. Such a regime would provide legal protection to the TK and TCE and thereby guaranteeing access and benefit-sharing mechanisms to truly protect the rich and diverse Traditional Knowledge and customs of the Indigenous people in India. Therefore, sui generis protection for TK and TCE has become a necessity.

HOW DOES THE INTERNATIONAL SUI GENERIS MODEL WORK TOWARDS PROTECTING INDIGENOUS KNOWLEDGE?

While drafting a sui generis system to protect Traditional Knowledge and cultural expressions, it is vital to consider several key elements. These include disclosing the medicinal and biological resources of the country of origin through a sui generis database protection system in which accountability and tracing can be determined. In the year 2001, the Traditional Knowledge Digital Library was introduced in India. It is a collaborative endeavor by CSIR, the Ministry of Health and Family Welfare, the Department of AYUSH, and the Ministry of Science and Technology. The Digital Library epitomizes the interplay of local, national, and international interests. Its ultimate goal is the protection of TK. Furthermore, there is a need to ensure that Prior Informed Consent (PIC) and equitable benefit-sharing are availed to the rightful custodians and third parties, respectively. The regime should address the issues of protecting cultural identity and communities from piracy threats, ownership, distinctiveness, and novelty of Traditional Knowledge and expressions. From the perspective of customary international law, the regime should be able to address the issue of biopiracy and ecological conservation while promoting access and benefit-sharing.

THE SCOPE OF THE GI INTEGRATION PROCESS:

A Geographical Indication (GI) is a marking that designates products as coming from a specific location, whether manufactured, natural or agricultural. There is a strong association of a particular geographical location with the distinctive attributes of such products, such as a reputation for quality. GIs are recognized as key drivers in protecting intellectual property from specific geographic areas. They are the only laws under the Intellectual Property Rights (IPR) umbrella that protect community rights. This article goes beyond the current state and explores the potential of integrating GIs with the Sui Generis Model. This integration, if realised, could enhance the leap forward in protecting Indigenous knowledge more effectively, offering a promising outlook for the future.

The integration between Geographical Indication and the International Sui Generis System shall strengthen the mechanism of protection and promotion of Indigenous knowledge. This shall, in turn, be a positive step towards the empowerment of the community. Broadly, two major types of intellectual rights protection can be integrated into the Sui Generis System.

The first protection is termed as Defensive Protection. It aims to prevent individuals outside the community from obtaining intellectual property rights over Traditional Knowledge. This measure safeguards the interests of rightful custodians and prevents undue misuse of their knowledge. The Traditional Knowledge Digital Library (TKDL) is an example of defensive protection. The information in the digital library cannot be used by any other individual or any other country to develop their own product or service. The origin of TKDL can be traced back to three controversial cases in the 1990s. The dispute arose in the United States due to the issue of controversial patents concerning the healing properties of turmeric, a bio-pesticide derived from neem, and a new variety of basmati rice named “RiceTec”.

The second type of protection is called positive protection. Positive Protection advocates the idea of granting legal rights to the locals to promote their traditional cultural expressions and knowledge. The underlying notion behind this protection is that the Indigenous community must be empowered to protect and promote knowledge and ensure that the knowledge does not get lost. Integrating the Geographical Indications with the Sui Generis System shall enhance the statutory safeguards and open avenues for multiple remedies and outreach to the Indigenous community. This empowerment of local communities is a key aspect of the proposed protection mechanisms, fostering a sense of support and solidarity among stakeholders. The government having a complete monopoly over knowledge can be detrimental to the interests of the Community at large.

Protecting Traditional Knowledge (TK) through Geographical Indications (GIs) holds potential, even though they were created to serve different purposes. Firstly, GIs establish a direct link between specific products and their unique attributes, which have their roots in regional customs and traditions. Both of them safeguard the body of accumulated information unique to a particular region. This connection strengthens the distinct identity of goods rooted in Traditional Knowledge. Secondly, by protecting product names and related know-how, GIs also significantly contribute to the prevention of misappropriation. While GIs stand for the precise geographic origin of a typical product or manufacturing process, TK reflects the local knowledge traditions. This intersection can empower the Communities possessing the Traditional Knowledge to profit economically and be duly recognised owing to this protection. This acts as a deterrence against imitations and unfair competition. Thirdly, in light of the distinctive attributes of the product, GIs support sustainable practices and traditional ways of production, which in turn enhance quality and sustainability. Hence, attempts to preserve the environment are supported. Lastly, GIs will promote community empowerment by granting local communities’ collective ownership and control over their knowledge and the assets associated with it. In other words, GIs provide communities with the legal means to connect, safeguard, encourage, and enable them to preserve and profit from their Traditional Knowledge, encouraging the audience about the potential benefits.

GIs ARE SUPPLEMENTS AND NOT SUBSTITUTE:

Geographical Indication tags in isolation fail to recognise the “Holistic nature of TK and its intrinsic value”. The reference made to holistic nature and its intrinsic value implies the pure and non-economical nature of the knowledge without any aspect of commercialisation. The contributions made by TK and TCE are, in several instances, non-trade issues like the preservation of rural landscapes, etc.

The Geographical Indications for Traditional Knowledge face several restrictions and difficulties when subjected to a critical legal investigation. Initially, as GIs primarily concentrate on product attributes associated with geographic origin, they might not fully encompass Traditional Knowledge and broader cultural practices. Furthermore, TK communities lacking official documents or legal knowledge may find the application and enforcement of GIs to be a challenging and resource-intensive process. Lastly, there's a chance that TK's cultural significance will be overlooked if commercial applications take precedence, which could result in TK being more commodity-like than culturally valuable.

CONCLUSION:

India must primarily work towards adopting a Sui Generis Protection Mechanism for TK and TCE. Although the establishment of TKDL has set the foundations for a sui generis system to function, the digital library must be made more robust in order to continue granting recognition and protection against national and international infringements. Further, once an efficient sui generis model is in place, a limited Integration of Geographical Indication can open up new avenues and empower the Indigenous communities to operate independently, thereby preserving Indigenous knowledge.

REFERENCES:

  1. Fredriksson, M. (2021) ‘Balancing community rights and national interests in international protection of traditional knowledge: a study of India’s Traditional Knowledge Digital Library’, Third World Quarterly, 43(2), pp. 352–370. doi: 10.1080/01436597.2021.2019009.Section 2 (e) of the G.I. Act, 1999
  2. Anusree Bhowmick, Smaranika Deb Roy & Mitu De, A Brief Review on the Turmeric Patent Case with its Implications on the Documentation of Traditional Knowledge, 1 NDC E-BIOS 83-88 (2021).
  3. Cottier, T. and Panizzon, M. (2004), Legal perspectives on traditional knowledge: the case for intellectual property protection, 7 JOURNAL OF INTERNATIONAL ECONOMIC LAW, p.371.
  4. Boston College International & Comparative Law Review, vol. 27, no. 529 (2004).
  5. The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, (Aug. 7, 2022), https://www.wipo.intedocs/pubdocs/en/wipopubtk_2.pdf
  6. Blakeney, Michael. (2009), Protection of Traditional Knowledge by Geographical Indications, INT. J. OF INTELLECTUAL PROPERTY MANAGEMENT. 3. 357 - 374. 10.1504/IJIPM.2009.026912.
  7. Wipo.int. (2024). Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore: Fourth Session. [online] Available at: https://www.wipo.int/meetings/en/details.jsp?meeting_id=4720.
  8. www.tkdl.res.in. (n.d.). About TKDL. [online] Available at: https://www.tkdl.res.in/tkdl/langdefault/common/Abouttkdl.asp?GL=Eng.

Author:
* Mr. Atriyo Bhattacharya
Student, School of Law CHRIST (Deemed to be University).

Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights (ACIPR) and the Centre does not assume any responsibility or liability for the same.