All societies have a knowledge base which forms a foundation for the
activities of everyday life. Almost all of this knowledge is practical
knowledge, i.e. knowledge about how to do something as opposed to knowledge
about what something is. It is the fact that form and content of the knowledge
are not separated from the bearers of that knowledge. In 21st century knowledge
has become a vital commodity for doing business.
The term “traditional” does not imply that this knowledge is old or
non-technical in nature but it reflects traditions of the particular
communities. It is way in which that knowledge is created, preserved and
We had woven the knowledge and ideas into tradition, society and culture. The
term ‘Traditional Knowledge’ is collective in nature and is held by such groups
and community as a birthright; it may be written down or communicated between
generations orally. Traditional knowledge is the information; indigenous
people in a given community based on experience and adaptation to local culture
environment and have developed over time. These traditional societies not only
consume their knowledge for food production by using natural resources but they
give them share them receive them exchange them with others different societies.
Thus there is no single definition accepted universally. That verities of
definition and defines differently by its perspective.
Wipo-IGC suggest definition
“Traditional Knowledge to refer to traditional base literary, artistic or
scientific works, performances, inventions, scientific discoveries, designs,
marks names and symbols, secret information and all other tradition-based
innovations and creations resulting from intellectual activity in the
industrial, scientific, literary or artistic fields. There is neither generally
agreed the definition of traditional knowledge nor even a common term to
designate this kind of knowledge’’.
Thus, Traditional knowledge refers to knowledge as body of knowledge, customs,
cultural works and expressions, intellectual activity in a traditional context
and includes know-how, practices, skills and innovations. Traditional knowledge
also encompassed belief system that plays a fundamental role in a people’s
livelihood, maintaining their health and protecting and replenishing the
Traditional and indigenous knowledge has been used for centuries by indigenous
and local communities under customs and traditions. They adapt and to live in
harmony with their natural environments throughout the centuries and contribute
to modern society with innumerable products.
Some traditional knowledge is closely associated with plants and other
biological resources such as medicinal plants, traditional crops and animal
breeds. In the biological resources, traditional knowledge is valuable active
components. Such generic resources and biological resources linked to
traditional knowledge and traditional practices through the utilization and
conservation of the resources, which has often occurred over generations.
Traditional knowledge as Intellectual Property
Intellectual property is a generic term which refers to group of legal regime,
confers the right of ownership on particular subject matter. Traditional
knowledge is a part of the Intellectual property which transmitted from
generation to generation. This include practices, belief, information etc.
indigenous community, traditional societies are holders / owners of traditional
knowledge once their traditional knowledge, information or culture share the
other, the community loss the control over them. These systems of knowledge
evolved over generation to generation and it is unique for the indigenous
people, custom, tradition and land resources. Traditional societies have right
to protect their intellectual property against misappropriate use or
exploitation of it.
Current Situation about Traditional Knowledge
Today the fact is that 85% to 90% of the basic livelihood needs of the world’s
poor (more than half of the world’s population, including indigenous and local
communities) are based on direct use of biological resources (and related
traditional knowledge) for food, medicine, shelter, transport, etc.; over 1.4
billion poor farmers rely on farm saved seeds and local plant breeding
techniques as their primary sources of seeds.
Most of ancient traditional knowledge was not documented and managed properly.
Some of them come to be written down on different materials such as stones,
copper plates, brick bark, palm leaves and paper but it has been obliterated few
survived in time. Western societies also neither recognized any significant
value in Traditional Knowledge nor any obligations associated to its use, and
have passively consented to or accelerated its loss through the destruction of
the communities’ living environment and cultural values.
Today's, industrialization is main factor for loss of Traditional Knowledge. The
modern cultural industries (printing, film and record) as well as the
manufacturing industries (textile, handicrafts, pharmaceutical, seed, etc.) are
commercially exploit the traditional knowledge products for using new
technology, without the permission and sharing of profits with the
communities. Scientist, researcher are used genetic resources and traditional
knowledge for producing some new products, new medicine and new crop varieties
without their consent as well as unfairly exploited it and without compensation.
In the past few years, a number of cases relating to traditional knowledge have
attracted international attention. Yoga, Neem and turmeric are examples the
cases that can arise when patent protection is granted to inventions relating to
traditional knowledge which is already in the public domain. In these cases
invalid patent granted because the US patent examiners were not aware of the
relevant traditional knowledge.
Many discussions have been made on the subject of protecting traditional
knowledge. WTO, Conference of parties at the convention on biological diversity,
some national governments in these discussions has embraced the view that
traditional knowledge needs to secure legitimately. As a result of this the
issue of protection of traditional knowledge has been brought to the debate
surrounding intellectual property rights and traditional knowledge that has in
the public domain has come into question.
Debate on Protection of Traditional Knowledge
The debates open on the inadequacy of intellectual property right in traditional
knowledge. The debate has far shown this issue is very complex and
controversial. Many scholars suggested that protection of traditional knowledge
within the prevailing regime intellectual property right. But this view that
only moralistic in nature because intellectual property law have western
impression that every person has a moral right to control the product of his or
her labour or incentive to create. However, this has led to developing
countries felt their traditional knowledge has been unauthorized appropriation
of their knowledge. Developed countries create commercial products by the use
traditional knowledge, natural resources of developing countries. Intellectual
property rights to be obtained to the invention and creation based on existing
That the setting up of an Intergovernmental Committee on Intellectual Property
and Genetic Resources, Traditional Knowledge and Folklore by WIPO first met in
April 2001. The document prepared by the WIPO Secretariat identified whether or
not it is possible for traditional knowledge holders to use the existing
intellectual property law their advantage. In this regards mainly three
limitation meet. The first Intellectual property system never facilitated the
custodians of traditional knowledge to enjoy and share the benefits derived from
the new commercial exploitation of their knowledge base. Secondly, the concept
of ‘originality’, ‘novelty’, ‘utility’, ‘non-obvious or inventive step’ etc.,
used to find out the items that are to be protected through the Intellectual
property system, addressed only the scientific developments based on the western
science. Similarly the identity of the creator of the new knowledge - author or
inventor - also reflects the individual private property underlying the
protection of intellectual property.
Thirdly Intellectual Property Right protect idea, innovations, creativity and
expressions. Thus, the concept of protection applied under Intellectual Property
Rights is quite different from of ‘protection of Traditional Knowledge’. The
protection of Traditional Knowledge is a framework that encourages the
preservation and conservation of traditional practices, culture and knowledge
because it is vital element of cultural heritage of humanity. Although
intellectual property rights derived from traditional knowledge may be acquired
legally, failure to recognize the contribution of the traditional knowledge
holder and to share benefits and economic gains.
The issue protect traditional knowledge has receiving increasing attention in
CBD and its Conference parties. The international community recognize that
there is need to alternative protection regime to accommodate the protection of
traditional knowledge. There are number of discussion for the alternative
measures which extend to intellectual property rights to trade secret.
The agreement on trade related Aspects of intellectual property rights i.e.
TRIPS Agreement specific provisions recognize secret information or undisclosed
information as being protectable intellectual property. Prior to this agreement,
Article 10bis of the Paris convention (covering unfair competition) provides
support for international standard of trade secret protection under TRIPS. Trade
secrets are protected against dishonest commercial practices. Art.39.2 of the
TRIPS stated that the IP protection of trade secret, “Natural and legal persons
shall have the possibility of preventing information lawfully within their
control from being disclosed to acquire by or used others without their consent
in a manner contrary to honest commercial practices so long as such information”
It means that the rules generally do not provide the holder an exclusive right
in secret information. But it prevents and controls the acts of disclosure and
acquisition and use without the consent within the commercial practices.
Trade secret as defined in the Black’Law Dictionary means:
“A formula process, device or other business information that is kept
confidential to maintain an advantage over competitors; information including a
formula, pattern, compilation, program device, method, technique or process that
devices independent economic value, actual or potential from not being generally
know or readily ascertainable by other who can obtain economic from its
disclosure or use, and is subject to reasonable efforts, under circumstances, to
maintain its secrecy.”
Essentials of Trade Secret
Therefore, it means that three elements are required for knowledge to classify
as trade secrets. The knowledge
• must have commercial value
• must not be in the public domain, and
• Is subject to reasonable efforts to maintain secrecy.
Trade secrets play an important role to protect traditional knowledge if the
above conditions are satisfied. Traditional knowledge that is maintained within
a community could be considers a trade secrets. The fact is that to be protected
as a trade secret, the subject matter must be kept ‘secret’ although it will
depend on how the term is construed.
Traditional Knowledge as a Trade Secret
According to Srividhya Ragavan, Trade secret is recognized as one of the best
forms of Intellectual Property Right to protecting traditional knowledge.
It protects the owner from disclosure or unauthorized use of knowledge. It is
better than other Intellectual Property Right protection used to protect
non-disclosed traditional knowledge. This area of law concerned with secrets of
all kinds. It covers all patterns i.e. method, technique, recipes for food
and beverages or process that gives a competitive advantage. Since it covers a
wide range of information, traditional knowledge that is maintained within the
community by individuals or members can consider a trade secret. A trade secret
can be a useful vehicle for traditional knowledge holders when dealing with
outsiders’ improper acquisition, disclosure, and use of relatively secret
information. Trade secret law could be used to the benefit of a community
because there is exchanging information with outsiders by agreements or
contracts that ensure confidentiality. If third parties obtained secret
information by illicit means, legal action might be undertaken by trade secret
In the case of trade secret, the information is protected in perpetuity; there
is no requirement of criteria like the novelty, non-obviousness, etc. however
absence of any specific trade secret legislation in India can be a serious
detriment to this type of protection. However, nevertheless, there are cases
whereby the Indian courts have imported common law principles for the protection
of secret knowledge. The law of confidentiality and trade secrets has been
successfully used to protect non-disclosed traditional knowledge; Courts may
awards remedies for breach of confidence when customary laws of secrecy
violated. Traditional knowledge often conceptualized as a form of collective
Limitation of Trade Secret Protection
Trade secrets protect undisclosed knowledge through secrecy and access
agreements. Traditional knowledge that is maintained within a community could be
considered a trade secret. But once the knowledge is diffused to the public,
this option no longer exists. A trade secret is only enforceable as long as it
remains a secret except in cases of “Breach of Confidence”. Trade secrets per se
cannot be legally protected, as they are secrets, what will be enforceable are
the consequential effects of breach of trust or legal contracts. It means that
secrets diffusion to the public in order to compensate for the loss of
secrecy. It is remember that all traditional knowledge not said to be
secret. Traditional knowledge is a part of the Intellectual property which
transmitted from generation to generation. It is difficult to protect trade
secrets against misappropriation due to lack of legal entitlement to the bearer
of the secret. When applied to knowledge belonging to a community, the community
must make a reasonable effort to maintain the secrecy of the knowledge. If there
is not a reasonable effort to maintain the traditional knowledge’s secrecy, then
trade secret protection is not applicable to the traditional knowledge.
Despite its seemingly expansive range of protection, trade secret law cannot
satisfactorily protect Traditional Knowledge of indigenous peoples. First, the
knowledge must be confidential or secret for which protection is sought. It must
not be public property or knowledge. However, traditional knowledge strongly
believes in sharing knowledge and considers it part of the public domain. The
knowledge of traditional community is passed on generations and outsiders who
subsequently publish it, it become difficult for community to control secrecy
because it falls in to public domain. Then it is not secret or protected by law
and it can be freely available to anyone.
Second, essential requirement is that the information be economic value. It is
difficult to traditional knowledge holder to prove the economic value because it
holds scared value only. Third, is that the information must be related to
trade and industry. Traditional knowledge holder may not use the knowledge or
information in trade or industry. Fourthly, it has also been suggested that to
be trade secret the information must be have an existence separate from its
owner. It is difficult to holder of traditional knowledge, because traditional
knowledge is an integral part of the lives of those who practice it daily and
Finally, it provides remedies only once the secret has been disclosed.
Traditional Knowledge is secret and sacred and their very disclosure to the
uninitiated persons violates their sanctity. Over the above the difficulty
involved in attempting to meet these specific requirements, it is not possible
to protect traditional knowledge by trade secret law. It is limited and
inadequate approach for protecting traditional knowledge.
Sui Generis System
There is strong recommendation to and has been advocated many NGOs and academics
that countries should invest in the alternative creation “Sui Generis Law” which
is development of intellectual property law, suitable to their cultural and
natural resources and traditional knowledge. In 2002 WIPO prepared a paper
focusing on developing of Sui Generis system and 2003 the WIPO General Assembly
decided that IGC would focus on the international recognition on this
Sui generis is a Latin word. It means “Unique” or “Special”, leaving the Sui
Generis system open to interpretation. Sui Generis offers a unique type of
intellectual property right, which is different from the classical IPR, as is
the case with the patent. All Sui Generis models that could be tailored to
specific needs and circumstances of the members are legally recognized
systems. It is recognized that the specific needs and circumstances in each
country vary and in this respect the differences between the developing and the
developed countries are very wide in several aspects. Therefore, it is obvious
that a Sui Generis system of protection appropriate for a developing country may
require certain modifications in another developing country and these systems
may not be even relevant to a developed country.
India is rich country of biodiversity and cultural resources, but the lack of
system to safeguard, protected these resources in globalized world. Many
indigenous communities of India rely on traditional knowledge for livelihood and
identity; its misappropriation can severely prejudice their interest and rights.
Biopiracy is a very real threat, the need to safety of India’s traditional
knowledge. India has been several cases of bio-piracy of TK from India. First it
was the patent on wound-healing properties of haldi (turmeric); now patents have
been obtained in other countries on hypoglycaemic properties of karela (bitter
gourd), brinjal, etc. As a result of this Mrs. Shashi Tharoor, had
introduce private bill in the parliament to protect traditional knowledge on
10.03.2017 which was pending. The Bill does not restrict the use of traditional
knowledge but it provides the safeguards to custodians’ communities, protecting
them from abuse and exploitation. Bill will protect India’s traditional
knowledge from foreign appropriation, and will provide an opportunity for
Indians to learn about their culture and practices through legitimate system.
Effectiveness of Sui Generis
The TRIPS agreement itself does not provide any protection for the traditional
knowledge but it creates flexibility for establishing alternative
non-conventional intellectual property conventional regime. Article 27.3(b) in
TRIPS agreement stated to members may establish effective Sui Generis regime.
"Members may also exclude from patentability..... plants and animals other than
microorganism and essentially biological processes for the production of plants
or animals other than non-biological and microbiological processes. However,
Members shall provide for the protection of plant varieties either by patents or
by an effective Sui Generis system or by any combination thereof.”
But the TRIPS agreement Effectiveness of the Sui Generis is not defined.
According to Dutfield, Legislation could be drafted in such way as to allow a
community to become the successor in title of discovery and development process.
Under this interpretation communities have right to protect traditional
practices and usual appropriation by others of the commercial value from their
knowledge. As a right holder they would have exclusive rights to withhold from
third parties their consent to make, use, sale or import that they
India is, therefore, should taking appropriate steps towards framing a law and
to give effect to under the TRIPS, CBD have reiterated India’s stand in
different Intergovernmental Committee working on the protection of traditional
knowledge. As a result of this, India has adopted three interrelated legislation
by positive protection.
· the Patent’s (Amendment) Act, 2005 (effective from 1st January 2005);
· the protection of plant varieties and farmers rights Act, 2001 (PPVFR
· the Biological Diversity Act, 2002.
This paper has provided the trade secret limited approach to protect
traditional knowledge. In view that trade secret as a part of conventional
intellectual property law does not adequately measures for the protection of
traditional knowledge and innovations of traditional and indigenous knowledge.
However, traditional knowledge is not only secret but also scared knowledge.
Trade secrets does not meet specific requirement to protect traditional
knowledge. At present, Indigenous people do not have strong institutional
arrangement to safeguard their intellectual property and secret in modern
economic space. It proposed that the establishment of Sui Generis system to
protect or cover traditional knowledge.
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