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
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
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.
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
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
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
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
It is critical to analyze some components while developing a unique system for
the conservation of traditional knowledge and traditional cultural expressions,
The types of intellectual property protection that can be incorporated into
the sui generis system are as follows:
- 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
- Access and benefit sharing should be promoted.
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.
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
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
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.
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
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
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