With special reference to yoga and
spirituality as part of Indian Traditional Knowledge.
ï¿½It is the intense spirituality of India, and not any great political structure
or social organisation that it has developed, that has enabled it to resist the
ravages of time and the accidents of history.ï¿½ ï¿½ Dr. Sarvepalli Radhakrishnan,
Former President of India.
Existing IP Laws are aimed at facilitating commercial exploitation. While all
other IP laws offer monopoly and exclusive commercial right, there arises a need
to protect yoga as a part of intrinsic traditional knowledge of India to prevent
the misuse by alien elements with the intention of unjust commercial
exploitation of Indian Traditional Knowledge. Otherwise there might arise a
situation where India would be forced to buy its own traditional knowledge from
foreign countries if products involving valuable Indian Traditional knowledge
are patented in other countries.
The position of Patents legislation in India, which is section 3 (p) of the
corresponding act, is insufficient since it does not give protection to
traditional knowledge, but only prevents applied traditional knowledge from
being patented. Frivolous attempts are not uncommon in the patent offices of
developed countries, where the grant of such patents is left unchallenged. They
are unjustly manipulated to be novel inventions by introducing meagre and
insignificant changes to the original usage, which is an obvious part of yogic
traditional knowledge in India.
Such traditional knowledge is found very
commonly among the community which possesses and uses it, so there is no
necessity for such community to contemplate upon the commercial importance of
such traditional knowledge. So, they do not obtain any intellectual property
protection for their traditional knowledge.
But when the traditional knowledge
of the community gets exposed to other people, it results in unjust commercial
exploitation of traditional knowledge. If it happens to Yoga, then it is
referred to as Yoga Piracy. There have been instances where India has approached
the WTO with respect to such issues. So, there is a need of a sui generis legislation
for dealing with traditional knowledge, especially yoga, so that the profundity
and integrity of the discipline is preserved.
Indian Traditional Knowledge is said to be one of the ancient and profound ones
found in any civilisation of the world. India is bound by strong natural
barriers on all sides, which made it difficult for outsiders to come into. This
factor also provided with an equitable climatic condition to the peninsula,
which also made it a conducive environment for exploration of aspects of life
beyond survival. Therefore, in India, spirituality and various other connected
scientific disciplines emerged into existence, which thrived into a very huge
library of traditional knowledge, not found elsewhere in its profoundness.
of the greatest scientific disciplines include Yoga, which by its very nature is
a complete path. Yoga, as it is popularly understood, is not merely the twisting
and turning of human body. Of course, Hatha Yoga is about the physical aspect.
But it is just one of the aspects. In short, the word Yogaï¿½s Sanskrit root means
ï¿½to joinï¿½ or ï¿½Unionï¿½ ï¿½ to be in union with the universe. To limit it to mere
physical practices is to underestimate the whole dimensions the yogic discipline
has in it to offer.
While all other IP laws offer monopoly and exclusive commercial right, there
arises a need to protect yoga and spirituality as a part of intrinsic
traditional knowledge and cultural expressions of India and prevent it from
misuse by alien elements in the form of patent protection with the intention of
commercial exploitation of Indian Traditional Knowledge.
According to Natural
theory of Intellectual Property, one cannot claim Intellectual Property
Protection for already existing knowledge or for the products which are
manifested in nature, or in the case of Traditional Knowledge, claims cannot
be made by manipulation of one or more branches of knowledge which are already
existing and obvious to the community possessing such traditional knowledge.
But in the present scenario, industries and individuals, especially in the
developed countries, try to exploit the invaluable resources of the Indian
Traditional Knowledge in spirituality and Yoga by incorporating their principles
and techniques in their commercial products. The problem gets complicated when
they obtain intellectual property protection for such products. For instance,
products, where principles of traditional knowledge form their substantial part,
are claimed to be novel and are thus patented. It is not uncommon that such
patents are left unchallenged, since they are patented in the patent offices of
the developed countries and they may very well remain unnoticed unless such
products acquire international acclaim.
Nevertheless, such products are
commercially exploited in the local markets and allowing such a happening will
only be in the effect of condoning the invalid patenting of the claimed novel
invention. It will become a mammoth problem when the product acquires certain
goodwill and even if the patent is found invalid, the success of the product and
commercial importance of it continues to exist. The same applies to the
copyrighting of the Yoga Poses as oneï¿½s individual right, where such Yoga Poses
are passed on from generation to generation and cannot be attributed to
individuals since they form part of traditional knowledge.
Insufficiency Of Legal Protection To Traditional Knowledge Outside India
Legal Protection to Indiaï¿½s traditional knowledge is not present under the
umbrella of other fields of intellectual property law. The position of Patents
legislation in India, which is section 3 (p) of the corresponding act is
insufficient since it does not provide protection to traditional knowledge.
Section 3 (p) of the Patents Act, 1970 (India) reads as follows:
ï¿½3. What are not inventions. - The following are not inventions within the
meaning of this Act:
(p) an invention which, in effect, is traditional knowledge or which is an
aggregation or duplication of known properties of traditionally known component
The above provision only prevents patenting of inventions based on traditional
knowledge. But the problem involving traditional knowledge does not stop at that
point. It only prevents applied traditional knowledge from being patented. But
the real time problem is that patents have been obtained in the developed
countries by using the traditional knowledge of India and they are exploited
commercially in the guise of originally invented patents. Such frivolous patents
do not have the required ingredients ab initio, but they are manipulated to be
patented inventions by means of introducing meagre and insignificant changes to
the original usage, which is an obvious part of yogic traditional knowledge in
One of such instances of obtaining intellectual property protection for products
involving Indian Traditional Knowledge is the patent on Neem based products. The
patent for Neem was first filed by W.R. Grace and the Department of Agriculture,
USA in European Patent Office. The patent subject was about a method of
controlling fungi on plants comprising of contacting the fungi with a Neem oil
A legal opposition was filed by India against the patenting of the
product, represented by the Research Foundation for Science, Technology and
Ecology (RFSTE), in co-operation with the International Federation of Organic
Agriculture Movements (IFOAM) and Magda Aelvoet, former green Member of the
European Parliament (MEP). The bark, leaves, flowers, seeds of neem tree, which
is legendary to India, can be efficiently used to treat a plethora of diseases
ranging from leprosy to diabetes, skin disorders and ulcers. Neem twigs are
widely used as a popular antiseptic tooth cleaner since time immemorial,
especially in the rural areas and are found to be very efficient.
opponents' submitted evidence of ancient Indian ayurvedic texts that have
described the hydrophobic extracts of neem seeds, which were well known and used
for centuries in India, both in curing skin diseases in humans and in protecting
agricultural plants from fungal infections. Taking into consideration all these
facts, the EPO identified the lack of novelty, inventive step and revoked the
patent. Similarly, there were also cases concerning turmeric and basmati rice.
Such traditional knowledge is found very commonly among the community which
possesses and uses it, so there is no necessity for such community to
contemplate upon the commercial importance of such traditional knowledge. So,
they do not obtain any intellectual property protection for the products using
their traditional knowledge because they do not have any intention to exploit
their traditional knowledge. But when the traditional knowledge of the community
gets exposed to other people, they try to exploit it commercially by applying
the traditional knowledge on products and obtaining intellectual property
In many cases, the community possessing the traditional knowledge
does not come to know about such improper intellectual property protection given
to products based on the traditional knowledge. Though section 3 (p) of patents
act prevents such patents, such frivolous attempts are not uncommon in the
patent offices of developed countries, where grant of such patents are left
unchallenged. There have also been instances where India has approached the WTO
with respect to such patents of yoga postures. It can be clearly stated that
scope of protection of the most profound traditional knowledge in the world is
too remote even in its very place of origin.
Traditional knowledge is knowledge, know-how, skills and practices that are
developed, sustained and passed on from generation to generation within a
community, often forming part of its cultural or spiritual identity. WIPO's
program on TK addresses genetic resources and traditional cultural
While there is not yet an accepted definition of TK at the international level,
it can be said that:
TK in a general sense embraces the content of knowledge itself as well as
traditional cultural expressions, including distinctive signs and symbols
associated with TK. TK in the narrow sense refers to knowledge as such, in
particular the knowledge resulting from intellectual activity in a traditional
context, and includes know-how, practices, skills, and innovations.
The Protection of Traditional Knowledge Bill, 2016 introduced by Dr. Shashi
Tharoor as a private bill defined traditional knowledge in section 2 (1) (ix) as
ï¿½ "traditional knowledge"
means knowledge and expression of culture, which may
subsist in codified or oral or other forms, whether publically available or not,
that is dynamic and evolving and is passed on from generation to generation, for
at least 3 generations, whether consecutively or not, which is associated with
group or groups who are maintaining, practicing or developing it in traditional
cultural context and includes know-how, skills, innovations, practices,
learning, medicinal preparations, method of treatment, literature, music, art
forms, designs and marks but does not include any traditional knowledge covered
by any law for the time being in force providing for its preservation,
promotion, management or unauthorized commercial exploitation;ï¿½
Traditional knowledge can be found in a wide variety of contexts, including:
agricultural, scientific, technical, ecological and medicinal knowledge as well
as biodiversity-related knowledge.
An important issue which arises with respect to the granting of intellectual
property protection to traditional knowledge is that it has ancient roots and
the mode of transmission of traditional knowledge from one generation to the
next is often oral.
Moreover, the subject matter is not protected by
conventional intellectual property systems. The conventional systems provide
scope for commercial exploitation, whereas protection of traditional knowledge
generally forbids commercial exploitation, since such knowledge is in the public
domain and is intended to benefit for the society at large. Therefore,
commercial exploitation of traditional knowledge by a private individual is per
se not allowable since it is not his own creation. Hence anyone who has obtained
the knowledge, know-how of the traditional knowledge can make use of it for his
own benefit or public use.
With respect to Indian traditional knowledge, the general policy of India is
intended to benefit the whole humanity. Hence even if India does not
commercially exploit, it should be able to stop others from monopolising its
While the policy issues concerning TK are broad and diverse, the IP issues break
down into two key themes:
Defensive protection refers to a set of strategies to ensure that third parties
do not gain illegitimate or unfounded IP rights over traditional knowledge.
India, for example, in the well-known case of USPTO, wherein patent was granted
on the healing properties of turmeric, with much difficulty, proved the prior
existing knowledge of such properties of turmeric with help of numerous ancient
scriptures and documents.
It had adopted a Defensive mechanism to protect its
traditional knowledge. It is also evident from the way of setting up a
Traditional Knowledge Digital Library (TKDL) in 2001, in collaboration between
Ministry of Ayush and CSIR, that India uses only a defensive protection
mechanism to prevent people from misusing traditional knowledge for commercial
exploitation as private intellectual property.
Two aspects of positive protection of TK by IP rights are recognised: preventing
unauthorized use, and active exploitation of TK by the originating community
In some countries, sui generis legislation has been developed specifically to
address the positive protection of TK. A sui generis legislation for Indian
traditional knowledge, especially yoga, would streamline all the intellectual
property problems concerning the traditional knowledge. Some amount of positive
protection will also go a long way in preventing unauthorised exploitation of
WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore decided to dissect the working concept of
traditional knowledge into two: i. Traditional Knowledge related to biodiversity
and ii. Traditional Knowledge related to the arts and expressions of folklore.
It is said that this approach to TK is too minimalistic, which is
counterproductive to the diplomatic efforts in various fora to include all types
of traditional knowledge and the needs and expectations of the respective TK
Though this distinction attempts to put into traditional knowledge
as a subject of other forms of IPR Protection, that does not cover exhaustively
all forms of traditional knowledge, especially yoga which cannot precisely fall
under the subject of any of the other IPR protection laws.
Yoga Piracy And Scope Of Protection In Other Modes Of Intellectual Property
Yoga Piracy is a practice of claiming copyrights and patents on yoga postures or
sequences of postures, asanas and techniques found in ancient treatises
indigenous to India.
But to be more comprehensive, Yoga Piracy should not only be taken as obtaining
intellectual property protection for contents of traditional knowledge. It
should also be construed to be something which is deceivingly perceived or
misrepresented as the discipline for which the name ï¿½yogaï¿½ stands for. The issue
of Yoga Piracy has manifested in many modalities of intellectual property
protection, such as patents, copyrights, trademarks, Geographical Indications,
Trade Secrets, etc.
To talk about patents, the techniques which are merely a derivative from the
ancient traditional knowledge are not to be taken as innovations or inventions,
since they do not involve any utility or inventive step. Hence, such claimed
inventions or products incorporating such techniques should not be granted
With respect to copyrights, the asanas or the poses have been subject to
attempts of copyright protection. They have been an inherent part of the
traditional knowledge and have been mentioned in the ancient treatises and
aphorisms of Yoga as well as in the oral tradition of learning and initiation.
Such poses are part of traditional knowledge and cannot be monopolised as
private intellectual property right.
When it comes to trademarks, the problem of Yoga Piracy takes a different
dimension. Trademarks are all about goodwill and reputation. The name ï¿½yogaï¿½ is
not a trademark. It is only the name of an ancient old discipline which is part
of the traditional knowledge of India. But there is an increasing tendency of
usage of the name ï¿½yogaï¿½ in a totally different connotation, according to oneï¿½s
own whims and fancies.
There has been promotion of certain misadventures in the
name of yoga. For instance, there is a certain trend called ï¿½beer yogaï¿½ which
originated in the West, where alcohol enthusiasts take up doing yoga while
drinking, which is a serious misadventure. To take into consideration the
fact that the practices of yoga demand empty stomach, loading the system with
beer will not be of any effect and whatever happens in the name of beer yoga is
merely a stunt or a fantasy, and is not in any way connected to the profound
experience which the proper practice of yoga has to offer.
The practice of yoga
is aimed at increasing the perception of an individual. Alcohol diminishes oneï¿½s
perception, so all those practices which are being done in the name of ï¿½beer
yogaï¿½ are only an abuse of whatever the ancient discipline has to offer to the
humanity. The main problem with respect to such negligent usage of the word
ï¿½yogaï¿½ arises as it endangers the goodwill of the discipline. Though the name
ï¿½yogaï¿½ does not involve any trademark, it does have a great amount of goodwill
and reputation. It is not only trademarks which have goodwill, also traditional
knowledge and traditional cultural expressions have a great amount of
Because, a layman who sees these words being used so
indiscriminately, is misled as to the nature of the discipline, and might think
that yoga is merely a physical fitness regime. Thus, the goodwill of yogic
discipline is at stake, when indiscriminate use of the word takes place.
Therefore, protection should be granted against such usage since it jeopardises
the goodwill of such a profound discipline.
With respect to geographical indications, there is a certain amount of
protection to other forms of traditional knowledge, which protects its goodwill
and reputation. But the limitation of geographical indication law is that it is
confined to a particular geographical territory alone. The nature of yoga is a
discipline which can be practised in all places, by anyone, irrespective of any
culture, religion, belief and ideology.
Yoga is beyond all such social
impediments, it is a technology for inner well-being, which greatly enhances
oneï¿½s perception, life, well-being and health. Though it has its origin in
India, it is not proper to call it a geographical asset since yoga is not a
product or an expression like any other traditional cultural expression which is
produced in a confined territory. Yoga can be practiced and taught at any place.
Only thing is that the integrity and purity of the practice must be maintained
to reap maximum benefits from the practice.
Therefore, yoga is a discipline
which is essentially part of Indian traditional knowledge, which does not fall
under the subject matter of protection under the geographical indication law,
since it is not confined to any geographical territory as such. It cannot be
patented, trademarked or copyrighted, since it is part of traditional knowledge
and cannot form part of anyoneï¿½s private intellectual property.
Therefore, it is clear that existing modes of intellectual property protection
cannot exhaustively address the problem of yoga piracy. Hence there is a need
for sui generis legislation to obtain worldwide protection for addressing this
A person does not invent, in fact cannot invent anything, with respect to the
discipline of yoga. The reason is that, what we call as yoga is just the
scientific discipline, which are based on experiential and spiritual dimensions,
which signify union. The technology was compiled and revealed in the Yoga
Sutras, though the techniques were in practice even before the book was written.
Other aspects are learnt from a guru by the disciples, and it has been passed on
from generations to generations by the means of oral tradition.
No one had ever
tried to alter anything or innovate anything, because yoga is a complete
discipline or a complete path by itself, with the ends of achieving greater and
enhanced experience of life and ultimately realization. Any alteration or
innovative stunt in the observance and performance of the discipline and the
techniques will only result in a deviated or diminished end result, which does
not serve any purpose per se.
In various disciplines of the world such as
martial arts, the performers do not and cannot invent anything with respect to
the discipline itself, because the discipline proves to be a complete path by
itself, to meet the desired ends. Therefore, there is no point in innovating or
deviating from the discipline since the process is more intrinsic to the means
as well as the ends, where the ends are the means themselves and the result
itself is manifested excellency.
Therefore, any intellectual property right arising from the subject of yoga
should be carefully dealt with and should not be granted for the mere presence
of ï¿½noveltyï¿½ or ï¿½temporal pleasant feelingï¿½ which may deceivingly appear as
ï¿½utilityï¿½ or ï¿½applicationï¿½. Mere physical articulation of the body does not
result in enhancement of a person, nor does it amount to utility and yoga does
not merely mean dealing with the external situations like elevating the room
temperature for hot yoga or having a stimulating yoga studio.
However, innovations pertaining to accessories, such as yoga mat, props, chairs,
can very well be subject matter of patents. They do not come under the purview
of the discipline of yoga, but are just accessories which can be used during the
performance of yoga. They are inventions which aid the practice of yoga.
Nevertheless, only the accessory product can be patentable and not the practice.
But when it comes to the practice of yoga as such, all information, methods,
techniques, theory, philosophy, knowledge, asanas, etc. which are intrinsic to
the discipline are not subject to intellectual property protection.
But as the number of Western yoga teachers has grown, there has been a steady
increase in applications for intellectual property protection. In the United
States alone, there have been more than 130 yoga-related patents, 150 copyrights
and 2,300 trademarks. Now India's Traditional Knowledge Digital Library is being
made available to patents offices throughout the world so they can establish
whether the claim is a genuine innovation or "prior art" from Indian systems of
Apart from the yogic discipline, in case of any claim for intellectual property
protection for a medicinal herb, the knowledge about which had existed in the
traditional knowledge of any community, such claims are also not valid for
obtaining intellectual property protection. For instance, if a company seeks to
patent the medicinal use of an herb listed in the TKDL, patent examiners conduct
a thorough investigation. According to the merits of the claims, it will lead to
a reduction of the scope of the patent or its refusal.
However, the company may still be granted a patent on a new method for
industrial-scale production of the active ingredient of the herb, for example,
if this process is new and inventive. In such cases, the patent applicants would
not claim ownership of the active ingredient itself. The scope would then be
limited to a method of producing or isolating the ingredient.
Instances Of Yoga Piracy
Yoga Piracy is a practice of claiming copyrights and patents on yoga postures or
sequences of postures, asanas and techniques found in ancient treatises
indigenous to India.
There have been instances where the cases have been decided that yoga cannot
make subject matter for copyrights or patents.
In Bikram Yoga v. Yoga to the People
, well-known yoga practitioner Bikram
Choudhury, sued the Yoga to the People ï¿½ a east Village based yoga studio,
claiming that its founder Gregory Gumucio infringed his rights by illegally
using Bikramï¿½s copyrighted poses and super-heated rooms inside Yoga to the
People classes. It was also claimed that Bikramï¿½s Hot Yoga classes were copied
and provided by Yoga to the People, who conducted classes in the name of
ï¿½Traditional Hot Yogaï¿½. While Bikramï¿½s copyrighted Asana Sequence and Dialogue ï¿½
including a strict 90-minute regimen that follows a rigid format of 26 poses
performed in a 105-degree heated room.
Choudhury founded the style called ï¿½Bikram Yogaï¿½, also known as "hot yoga", in
the 1970s and copyrighted it in 2002, as it became successful and began being
practiced by a plethora of public figures. The lawsuit sought damages in excess
of $1 million, as well as an injunction stopping Yoga to the People from
conducting hot yoga classes. Bikram Yoga Manhattan, which is licensed to use the
Bikram name, closed its Midtown branch and the owner, Raffael Pacitti, blamed
YTTP for eroding his business with rock-bottom prices and uncertified teachers,
according to a Daily News article. It costs $10,000 per teacher to be certified
as a Bikram instructor, according to the lawsuit.
Gumucio called the lawsuit "ridiculous" and added, "I think that yoga should be
made available to everybody. It should be in the hands of the people, not in the
hands of a few.ï¿½ Gumucio said YTTP's mission, which grew to include a dozen
studios nationwide ï¿½ is to provide affordable, accessible yoga. In the face of
designer yoga studios and high prices, YTTP offered classes with a suggested
donation of $5 or $10 and charges $8 for the ï¿½Traditional Hot Yogaï¿½ class ï¿½ less
than half the price of an average $20 fee for a single Bikram yoga class.
Many also held the view that something as profound as yoga should not be
copyrighted. ï¿½It is like writing a book on walking and copyrighting walking.ï¿½,
was one of the connoisseurs saying about it.
Before each class, instructors at YTTP informed students about the lawsuit and
asked them to sign a petition defending the studio. As a result, over 3000
people signed the petition.
Similarly, in Bikram's Yoga College v. Evolation Yoga, Choudhury sued Evolation
Yoga for teaching hot yoga with the same sequence of postures as Bikram Yoga. On
December 17, 2012, U.S. District Court Judge Otis Wright ruled that Bikram
Choudhury does not have copyright protection for the sequence of 26 yoga
postures and two breathing exercises commonly known as ï¿½Bikram Yoga.ï¿½ The
ruling, in favour of Evolation Yoga LLC and its founders Mark Drost and Zefea
Samson, meant that non-Bikram studios are allowed to offer hot yoga classes
utilizing that same 26-posture sequenceï¿½a legal right Choudhury actively and
vigorously contested for several years.
On October 8, 2015, the Ninth Circuit Court of Appeals affirmed, finding that
the sequence of yoga postures was not copyrightable subject matter under 17
U.S.C. ï¿½ 102(b) and that Choudhury's copyright in a book describing his system
did not give him copyright over the sequence itself.
Thus, as a result of developments in a series of lawsuits, Bikram Choudhuryï¿½s
copyright on the specific sequence of Bikram yoga has been overruled by the
federal court. All such attempts caused great feelings of indignation and anger
in India, where it has been practiced for over 6000 years.
Traditional Knowledge Digital Library
India, by means of a database, tried to establish defensive protection. A team
of yoga gurus from nine schools worked with government officials and 200
scientists from the Council of Scientific and Industrial Research (CSIR) to scan
35 ancient texts including the Hindu epics, the Mahabharata and the Bhagwad
Gita, and Patanjali's Yoga Sutras to register each native pose.
Now India's Traditional Knowledge Digital Library is being made available to
patents offices throughout the world so they can establish whether the claim is
a genuine innovation or "prior art" from Indian systems of medicine.
The Traditional Knowledge Digital Library (TKDL) is an Indian digital knowledge
repository of the traditional knowledge, especially about medicinal plants and
formulations used in Indian systems of medicine. Set up in 2001, as a
collaboration between the Council of Scientific and Industrial Research (CSIR)
and the Ministry Of AYUSH, the objective of the library is to protect the
ancient and traditional knowledge of the country from exploitation through
biopiracy and unethical patents, by documenting it electronically and
classifying it as per international patent classification systems. Apart from
that, the non-patent database serves to foster modern research based on
traditional knowledge, as it simplifies access to this vast knowledge of
remedies or practices.
As of 2010, transcriptions of 148 books were made, including those on Ayurveda,
Unani, Siddha and Yoga in public domain. They expanded into 34 million pages of
information, and were translated into five languages ï¿½ English, German, French,
Spanish and Japanese. Data on 80,000 formulations in Ayurveda, 1,000,000 in
Unani and 12,000 in Siddha had already been put in the TKDL. Also, it has signed
agreements with leading international patent offices such as European Patent
Office (EPO), United Kingdom Trademark & Patent Office (UKPTO) and the United
States Patent and Trademark Office to protect traditional knowledge from
biopiracy, by giving patent examiners at international patent offices, access to
the TKDL database for patent search and examination.
The TKDL allows examiners to compare patent applications with existing
traditional knowledge. New patent applications need to demonstrate significant
improvements and inventiveness compared to prior art in their field. If the
medical use of an herb is a traditional practice, and thereby public knowledge,
it is considered prior art under EPO regulations.
Even if a treatment is only available in Sanskrit in an Indian library, it
belongs to the prior art because it had been disclosed openly in the public
domain at an earlier point in time.
"Copyrights over yoga postures and trademarks on yoga tools have become rampant
in the West. Till now, we have traced 130 yoga-related patents in the US. We
hope to finish putting on record at least 1500 yoga postures by the end of
2009," has said Dr V.P Gupta, of the CSIR, who created the Traditional Knowledge
In the past few years, it has been seen that India has actively participated in
conventions and has made efforts to protect its Traditional Knowledge at
international level. Access to Indian TK is available at USPTO and EPO and CSIR.
It is day by day improving the efficiency of TK database.
Inadequacy Of Protection By TKDL
The digital library, although comprising of voluminous documents and work of
Indian traditional knowledge, has its own shortcomings such as; translation
problems, disclosure of traditional knowledge as prior art is disadvantageous
since it leads to public disclosure of entire traditional knowledge which
simultaneously results to fishing expeditions, further one of the major aspect
of traditional knowledge is that it is mostly passed by generations
in oral manner, therefore, a lot of TK has no documentary record and TKDL
maintains no record of oral traditional knowledge.
Unlike other categories of intellectual property rights, India has no
substantive act or law to protect traditional knowledge. A sui
generis instrument can go a long way in the efficient protection of TK,
enforcement of right of indigenous communities, prevent misuse and control of
TK, provisions of ABS (access and benefit sharing) system, etc.
In addition to TKDL system, India can work towards a more active approach,
foremost to create awareness and understanding among people who are till date
completely unaware or have very limited knowledge on Intellectual Property
Rights as well as the term ï¿½traditional knowledge
Therefore, the need of a sui generis legislation dealing with the subject of
traditional knowledge is real.
Attempt for a sui generis legislation for traditional knowledge ï¿½ the protection
of traditional knowledge bill, 2016.
The Protection of Traditional Knowledge Bill, 2016 was introduced as a private
bill by Dr. Shashi Tharoor, a Member of Parliament from Thiruvananthapuram, also
the former Under ï¿½ Secretary General of the United Nations for Communications
and Public Information. This legislation treated traditional knowledge as an
important subject for protection and distinguished it from other forms of
The Bill was proposed to provide for the protection,
preservation, promotion and development of Indiaï¿½s Traditional Knowledge and for
matters connected therewith or incidental thereto. According to Dr. Tharoor,
traditional knowledge is neither an innovation nor held by any single person.
Rather it is passed down and refined over several generations and thus may not
be considered as intellectual property. This opinion goes hand in hand with the
nature of yoga as a traditional knowledge, where it is a complete path by itself
and there is no much scope for any innovation.
He advocated for a parliamentary
recognition to protect Indiaï¿½s invaluable traditional knowledge with a system of
registration that identifies the traditional knowledge with its rightful
custodians. He also opined that the State shall be the custodian of all
traditional knowledge. He also highlighted the need of ensuring appropriated
incentives for further research and development on traditional knowledge. An
attempt was also made to recognize the contribution of specific local
communities in the development of the traditional knowledge by giving them
certain rights, including the right to self-determination.
Need for the regulated use of the term ï¿½yogaï¿½
Using the word ï¿½yogaï¿½ to denote any physical experiment or exercise is erroneous
by itself since it does not amount to any proper advancement to the end of the
ancient discipline. To bring in an analogy for better understanding, it would be
ideal to take the example of ï¿½medicineï¿½. Medicine as a discipline shall only be
practiced by lawful practitioners. Lawful practitioners mean those who practice
the discipline after passing all such requirements under law, such as to
complete the MBBS course and so on.
Yoga is traditional knowledge and such
knowledge only exists to the set of people who have received the knowledge from
generations to generations. Since such knowledge is foreign to all other people,
many people try to invent some new poses without proper awareness and
understanding about the yoga discipline. As a result, they end up with an
incorrect pose which based on the physical dimension of yogasanas alone and with
some misadventure of such inventor yields to various so-called yoga forms. There
have been many usages with respect to physical exercises, which has been
labelled as ï¿½yogaï¿½.
Usages like ï¿½beer yogaï¿½ must be forbidden since it highly
misleads common men about the meaning of yoga. Whether those misadventures are
patented or not, intellectual property law must enforce protection of the names
of traditional knowledge against such indiscriminate usage so that public is not
misled as to the knowledge about the discipline. If the same happens with
respect to a medical discipline, where someone claims his own whims and fancies
to be a part of the medicinal practice, then it will be highly misleading and
unlawful. Such an act is unlawful since it seriously jeopardizes the health of
But when it comes to a discipline like yoga whose practice does not
have a legal protection, it is important to note that indiscriminate usages as
to the discipline needs to be prevented since it also can be misleading, leaving
alone for a moment the serious jeopardy to the health it might cause. Sometimes,
wrong practice might not necessarily lead to health hazards but it does not
result in any beneficial result as well. Therefore, it creates doubt and
confusion in the minds of the common men as to the efficiency and significance
of the practice of yoga.
The reason for the insistence upon the purity of the practice is not for the
sake of monopoly, but if ill-informed changes are made in the discipline out of
ignorant and overenthusiastic practitioners, it will only lead to the
diminishment of the value and effect of the discipline. So, it is vital to
protect the purity and integrity of the practice through law and intellectual
property law will be an efficient tool to protect this aspect of the traditional
knowledge. Nevertheless, well informed innovation can be always made, provided
such an innovation results in the achievement of the ends of the discipline and
For example, the practice of Iyengar Yoga, founded by B.K.S.
Iyengar, involves use of props, chairs, ropes and other specialized articles
intrinsic to the practice of hatha yoga. The practice of yoga under this school
involves the purest form of practice, though props are used. The object of using
the props is to achieve posture perfection or the perfection in practice of the
asanas, for those people who may not be able to achieve posture perfection
otherwise, due to various limitations and impediments of their bodies and mind.
In this case, the use of props is in pursuance of achieving the ends of the
discipline, improves the practice of the discipline, which is entirely different
from mindless deviations from the practice which do not have any substantial use
and are mere results of the whims and fancies of the person who claims it to be
The issues relating to Intellectual Property Protection to traditional knowledge
are not restricted to a single form of intellectual property but is related to
many aspects of it. Especially for a discipline like yoga, the importance of
protection of traditional knowledge as such is very important. Since the
discipline does not fall under any of the existing pigeonholes of IP protection,
the problem arising out of it needs to addressed in a totally different manner.
The existing approach of seeing intellectual property protection as a tool for
mere commercial exploitation does not fulfil the demands of protection of the
yogic discipline or any other traditional knowledge of similar nature. Though
the existing approach to IP law does not expressly undermine any possibility of
a sui generis legislation, it is highly unlikely that industrialised states may
in turn accept the possibility of granting protection to a new form of IPRs for
this type of knowledge.
The feasibility of such miracle to happen on its own
seems remote, since the globalised world might only consider any further tools
in IPR which might facilitate more industrialisation and not something which
would curb their commercial activity. Therefore, it seems that there is a need
of sui generis legislation with respect to the protection of traditional
knowledge, especially yoga and the regulation of the use of the term ï¿½yogaï¿½ and
many other terminologies intrinsic to the traditional knowledge which needs to
be used with integrity and purity in expression so as to prevent
miscommunication, or misinterpretation and to prevent its usage in a frivolous
or indiscriminate fashion.
It is also important to totally prevent commercial
exploitation of Indian Traditional knowledge in an efficient manner. Otherwise
there might arise a situation where India would be forced to buy its own
traditional knowledge from foreign countries if products involving valuable
Indian Traditional knowledge are patented in other countries.
Even if India does
not commercialise yogic traditional knowledge, it should at least ensure that
the whole humankind assimilates the benefits of Indian traditional knowledge by
preventing others from wrongly monetising intrinsic Indian wealth. The knowledge
should also be mobilised well throughout India through education systems as it
aids individual development of humans and also promotes innovation upon such
traditional knowledge. Such dissemination of traditional knowledge will prevent
foreign elements from unfair exploitation.
- Indian Patents Act, 1970.
- The Protection of Traditional Knowledge Bill, 2016.
- Elizabeth Verkey, Intellectual Property, (Abhinandan Malik ed., Eastern
Book Company 1st ed., 2015).
- Jonathan Curci, The Protection of Biodiversity and Traditional Knowledge
in International Law of Intellectual Property, (William R. Cornish et al.
eds., Cambridge University Press 2009)
- Patanjali, Patanjaliï¿½s Yoga Sutras, (Rama Prasada trans., Munshiram
Manoharlal Publishers Pvt. Ltd. 1998).
- Rai Bahadur Srisa Chandra Vasu, Introduction to Patanjali, Patanjaliï¿½s Yoga
Sutras, at i (Rama Prasada trans., Munshiram Manoharlal Publishers Pvt. Ltd.
- Elizabeth Verkey, Intellectual Property 4 (Abhinandan Malik ed., Eastern
Book Company 1st ed., 2015).
- Saipriya Balasubramanian, Traditional Knowledge And Patent Issues: An
Overview Of Turmeric, Basmati, Neem
Cases, Mondaq, http://www.mondaq.com/india/x/586384/Patent/Traditional+Knowledge+And+Patent+Issues+An+Overview+Of+Turmeric+Basmati+Neem+Cases (last
updated Apr. 18, 2017).
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- India to WTO: Help Us Protect Herbs, Tea, Yoga, Ministry of External
Affairs, Government of India (Dec. 15,
- Traditional Knowledge, WIPO ï¿½ World Intellectual Property
Organisation, https://www.wipo.int/tk/en/ (last visited December 30, 2019
- Traditional Knowledge, WIPO ï¿½ World Intellectual Property
Organisation, https://www.wipo.int/tk/en/tk/ (last visited December 30, 2019).
- The Protection of Traditional Knowledge Bill, 2016, Section 2 (1) (ix)
- IPR Vis- ï¿½- Vis Traditional Knowledge, Khurana & Khurana (Oct. 5, 2018, 6.02
- WIPO, supra note 7.
- Jonathan Curci, The Protection of Biodiversity and Traditional Knowledge in
International Law of Intellectual Property 93-94 (William R. Cornish et al.
eds., Cambridge University Press 2009).
- Annemarie McCarthy, Beer yoga is popping up all over the world,
combining asanas and alcohol, Lonely Planet (Apr. 27,
- Intellectual Property and Genetic Resources, Traditional Knowledge and
Traditional Cultural Expressions, WIPO 32
- Dean Nelson, India moves to patent yoga poses in bid to protect
traditional knowledge, The Telegraph (Feb. 23, 2009, 1:31 AM GMT), https://www.telegraph.co.uk/news/worldnews/asia/india/4783753/India-moves-to-patent-yoga-poses-in-bid-to-protect-traditional-knowledge.html
- Indiaï¿½s Traditional Knowledge Digital Library (TKDL): A powerful tool for
- Serena Solomon, Bikram Originator Sues Yoga to the People for ï¿½Stealingï¿½
Poses, DNAinfo (Nov. 30, 2011, 12:00
- Rebecca Moss, Hold That Pose: Federal Judge Rules That Bikram Yoga Cannot
Be Copyrighted, The Village Voice (Dec. 19,
- Bikramï¿½s Yoga College of India, L.P., v. Evolation Yoga, LLC, D.C. No.
- Nelson, supra note 14.
- CSIR chief stress on non-patent literature database, The Hindu
BusinessLine, https://www.thehindubusinessline.com/todays-paper/tp-others/article29074765.ece (last
updated Sep. 23, 2000).
- About TKDL, TKDL Traditional Knowledge Digital
Library, http://www.tkdl.res.in/tkdl/langdefault/common/Abouttkdl.asp?GL=Eng (last
visited Dec. 30, 2019).
- Indiaï¿½s Traditional Knowledge Digital Library (TKDL): A powerful tool for
- Nelson, supra note 14.
- IPR Vis- ï¿½- Vis Traditional Knowledge, Khurana & Khurana (Oct. 5, 2018,
- The Protection of Traditional Knowledge Bill, 2016, Section 2 (1) (ix)
- Subhadra Evans, Iyengar Yoga and the Use of Props for Pediatric Chronic
Pain: A Case Study, PMC-NCBI, https://www.ncbi.nlm.nih.gov/pmc/ (last visited
Dec. 30, 2019).
- Curci, supra note 11
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