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Need Of Sui-Generis Systems In IP Protection

A huge number of indigenous people live in India. India has the world's largest tribal population, with around 84.4 million people. Each of these tribes has its own culture, tradition, language, and way of life. The information acquired by these communities and other local communities is diverse and vital to India's cultural history.

India has taken steps to preserve this "knowledge" through current IPR legislation, such as patents, copyright, trademarks, geographical indications, and so on. Traditional knowledge, on the other hand, has not been able to realize its goals due to its dynamic and holistic nature. The need for sui generis to protect intellectual property law and traditional law is examined in this project."

Introduction
There was a period when there were few options for converting and preserving the information that an individual or a society possessed. With the passage of time, the intellectual property evolved as a mechanism to safeguard an individual's creativity and ingenuity. India now has a well-established intellectual property (IP) framework. It safeguards any type of creativity owned by an individual, whether in the form of art, work, invention, or design.

However, India only grasped the economic significance of traditional knowledge and the necessity to safeguard it in 1997, when the United States claimed a patent on turmeric and basmati rice. To some extent, traditional knowledge can be protected under a lot of intellectual property rules. However, there is little effective international legal protection for this subject matter.

This has resulted in demands for a one-of-a-kind policy to protect traditional knowledge. The particular contours of the right are unknown, but sui generis right could encompass permanent protection. It may also result in the protection of historical collective works and knowledge that is helpful but not inventive, according to intellectual property law criteria.

Concept Of Sui Generis System

Meaning Of Sui Generis:

Sui generis term is found in the Latin language, this word means "a special kind". In the context of intellectual property rights (IPRs), the phrase means a type of protection system that exists outside of the established framework. It can also be considered as a regime that is specifically designed to suit a specific requirement.

This regime becomes important in the African environment to conserve traditional knowledge (TK) and associated natural resources. As it is founded on the concept of community property ownership, TK does not lend itself easily to protection under existing legal regimes, whereas existing forms of IPR regimes are based on the Western concept of property ownership.

Sui Generis In Relation To Traditional Knowledge

Traditional Knowledge is the concept of the inclusion of usage of biological and other medical treatment procedures, agricultural treatment, as well as information on production methods, music, rituals, literature, designs, and other arts. Thus, TK encompasses knowledge that can be applied in medicine, agriculture, engineering, and cultural events.

TK is made up of information that was primarily developed in the past and may still be developing. TK is information that has been passed down over generations and is passed on to future generations as part of the community's property. TK is a repository of information acquired over centuries of trial and error, success and failure, and has been passed down through oral tradition at the family level.

As a result, depending on its application, TK may have commercial value. Some TK may be understood and utilized beyond of its own country, although this is not always the case. TK also has spiritual components unique to each culture. India is rich with traditional knowledge as derived from our customs, Maha gurus, and their techniques. This traditional wisdom of India must be maintained, and only then will the role of sui generis begin to play. Sui generis protects the Indian heritage of traditional knowledge.

Origin Of Sui Generis

The increased commercial use of Indian traditional knowledge outside of the traditional context has increased the risk of misappropriation and misuse by external parties. "Concerns raised by oppressed cultures about incidences of theft of identity have been debated at international forums and established organizations such as the World Intellectual Property Organization's (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) in the year 2000.

This issue has prompted some countries to create their own sui generis system for the safeguarding of traditional knowledge. The goal of implementing a sui generis system in India for the protection of T.K and T.C.E could be accomplished by amending specific attributes of the present intellectual property rule to adjust the distinctive features of its subject matter, namely traditional knowledge and traditional cultural gestures, as well as understanding the regulatory requirement, beneficiaries, and examining the concept of equitable sharing and the principle of prior informed consent.

A system like this can aid legal rights linked with T.K and T.C.E and so offer space for accessibility and benefit-sharing in order to maintain the wide range of knowledge and information that Indian indigenous groups possess .

Sui Generis Legislation

India requires a law that listens to the concerns of communities and incorporates all moral, human, customary, and economic rights. In its debate on components of sui generis legislation on traditional knowledge, WIPO emphasized that a distinction should be established between knowledge that can be sold and another religious knowledge that falls outside of its purview.

Another critical consideration is reaching out to communities and raising awareness about their rights. To do this, India requires a task force to reach out to every neighborhood. Whereas TKDL can work alone as sui generis. However, there are tribes in Andaman, like the Selenase tribe, that does not allow anyone to enter their territory.

Workability:
This workability can only be implemented if we separate diverse parts of traditional knowledge such as spiritual, historical, economic, medical, and traditional secrets. Indigenous groups have proposed that commercialized knowledge be owned and administered by those who have inherited such knowledge. This can be accomplished by forming administrative entities governed by community representatives.

Sui Generis Systems In Intellectual Property Protection

Intellectual property is a collection of guidelines and laws that govern the acquisition, use, and loss of rights and interests in intangible assets that can be utilized for commercial purposes. Its subject matter, as well as the concepts and regulations that form it, are essentially dynamic. As a result, intellectual property has recently changed at a very rapid pace in order to suit the new technology and business processes generated by the global economy.

Current legal mechanisms have been adjusted in some areas to meet the aspects of the new subject area: the patent system has encountered the obstacles of biotechnological inventions and new procedures for using knowledge technology devices, and copyright and related rights have been expanded to face the demands of computer software, electronic commerce, and database protection.

However, in some fields, new systems have been established when it became clear that just changing old procedures would not adequately respond to the characteristics of new subject matter.

What distinguishes a sui generis intellectual property system is the change of some of its elements to adequately fit the distinctive qualities of its subject matter, as well as the specific policy needs that led to the development of a different system.

Intellectual property has changed throughout time to remain an efficient instrument for promoting the technological chain, technology transfer, and dissemination, and serving the rights and interests of inventors, as well as fairness. The basic point of intellectual property is that it protects intangible assets and grants its holders, the right to prohibit others from duplicating works and/or modifying performances and reproducing those performances, as well as the right to prohibit others from utilizing the protected topic.

Intellectual property structures may thus play an important role in the protection of traditional sections of the community's cultural identities and, as a result, in the liberation of traditional knowledge holders, as they will be granted the critical right to say no to third parties who engage in the unauthorized and/or obfuscating use of their traditional knowledge, irrespective of its financial interest.

In other words, even societies that assume their knowledge (or portions of it) must be preserved outside of main networks may advantage from intellectual property protection because it provides them with the power to inhibit their knowledge from being commercialized and/or used in a distortionary or racially insensitive way.

Sui Generis

It is critical to analyze some components while developing a unique system for the conservation of traditional knowledge and traditional cultural expressions, such as:
  • Disclosure of the country of origin's genetic and biological resources, preferably via a sui generis database protection mechanism that ensures accountability and tracking.
  • Prior informed permission provisions and equitable benefit-sharing arrangements between the rightful custodial owners of such traditional knowledge and expressions and 3rd parties.
  • Preservation of cultural identity and Defence of communities from harm.
  • Understanding the ownership and originality of such historic knowledge and expressions, as well as their novelty.
  • Customary international law provisions
  • Existing traditional knowledge and expressions should be made public.
  • Biopiracy and environmental conservation are two issues that need to be addressed.
  • Access and benefit sharing should be promoted.

The types of intellectual property protection that can be incorporated into the sui generis system are as follows:
Defensive protection:

In this, Outsiders with such traditional knowledge are forbidden from acquiring intellectual property rights to the subject matter. Offensive protection, in which those from outside the society who possess such traditional knowledge are prohibited from acquiring intellectual property rights over the subject matter. This safeguards the rights of legitimate custodians and prohibits unlawful use.

For example, India has a repository containing a database of all folk medicine that can be used to evaluate patent applications as prior art. Quite an event gave rise to a well-known case in which the US Patent and Trademark Office allowed the enrollment of a patent for the use of the spice turmeric that can be used to treat scars, regardless of the fact that the topic of diagnosis, turmeric, has long been known to Indian traditional and cultural societies. The patent was later canceled.

Positive protection:
This form of immunity seeks to award legal rights to local and regional communities in order to assist and accredit them in helping to promote their traditional cultural gestures and knowledge, having control over its uses and utilization, and, most importantly, having control over its own benefits from potential commercialization.

Need Of Sui Generis System

In today's globalized world, fragmented Defence fails to deliver custodians of traditional knowledge and traditional cultural gestures with an appropriate level of protection, which is why national and regional laws protecting TCE and TK only have a limited impact, and therefore calls for an intergovernmental organization that extends protection beyond national borders by establishing bilateral or plurilateral agreements between those countries that share a common interdisciplinary interest.

The construction of an international legal framework for the protection of T.K and T.C.E subjects would not only lay the groundwork for an agreement that provides for minimally acceptable levels of protection but will also ensure greater legal certainty. An international framework will allow for some degree of harmonization of national laws, making it easier for right holders and custodians of such T.K and T.C.E to protect and trade their IP assets without fear of misappropriation.

Justifications for a sui generis regime:
There are 3 primary legal theories lengthened as justifications for the copyright system. The first is the incentive logic, which holds that copyright is merely a means to an end. This goal is viewed as benefitting either the overall social welfare or as an instrumentalist approach to increasing public access and expression. The second hypothesis holds that authors and performers are entitled to exclusive ownership of the fruits of their labor. Finally, it is asserted that a performer's work and performance are reflections of the performer's personality, entitling the performer to exclusive use of both.

A future model's premise:
There is a need to identify the rights as a distinct category of intellectual property rights and to prevent illegal public access to them. The sui generis protection would necessitate first delineating the limit and then clearly delineating the benefits flowing from the rights' protection, i.e., whether it would serve the public interest or not.

Performers' rights must be recognized as a distinct type of intellectual property rights, with sui generis protection granted. Performer protection is a logical and necessary component of any legal system that protects individuals' rights to life and property.

Conclusion
The need for a sui generis form of IPRs was realized early enough. Any delay in this field creates a potential for biopiracy and misuse. Furthermore, such postponement is killing the dream of conservation and sustainable use of plant genetic resources. It cannot also be stated that the lack of a sui generis system prevents many communities from not just their knowledge but also their heritage.

This is closely related to the fact that the countries lose a significant amount of income that they legitimately require for their own growth. As a result, it is recommended that governments move quickly to implement sui generis IPR systems. The overarching goal should be to return part of the advantages of TK to communities, conserve biodiversity, and secure the long-term use of resources.

References:
  • Sahai, Suman. "The 'Sui Generis' System." Economic and Political Weekly, vol. 28, no. 50, Economic and Political Weekly, 1993, pp. 270203, http://www.jstor.org/stable/4400514
  • Davis, Michael. "Indigenous Rights in Traditional Knowledge and Biological Diversity: Approaches to Protection." Australian Indigenous Law Reporter, vol. 4, no. 4, Indigenous Law Centre, Law School, University of New South Wales, 1999, pp. 1 32, http://www.jstor.org/stable/44648464
  • N. Lalitha. "Intellectual Property Protection for Plant Varieties: Issues in Focus." Economic and Political Weekly, vol. 39, no. 19, Economic and Political Weekly, 2004, pp. 192127, http://www.jstor.org/stable/4414995
  • Helfer, Laurence R. "Regime Shifting in the International Intellectual Property System." Perspectives on Politics, vol. 7, no. 1, [American Political Science Association, Cambridge University Press], 2009, pp. 3944, http://www.jstor.org/stable/4040721
  • Mashelkar, R. A. "Intellectual Property Rights and the Third World." Current Science, vol. 81, no. 8, Temporary Publisher, 2001, pp. 95565, http://www.jstor.org/stable/24106520
  • Rajkumar S. Adukia, A Handbook on Intellectual Property Rights in India, Microsoft Word - 34_Hb_on_IPR_8108104.doc (caaa.in)
  • Bhatia, C. R. "Protection of Intellectual Property Rights." Current Science, vol. 73, no. 10, Current Science Association, 1997, pp. 80910, http://www.jstor.org/stable/24100713

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