Author: Intern - Krisha Meswani
The 161st Report on “Review of the Intellectual Property Rights Regime in India” recently recommended the creation of an Intellectual Property (“IP”) Fund to develop an “IP culture” in tribal and hilly areas in India. The author believes that the creation of an IP Fund is not necessary to foster an IP culture among traditional communities.
Due to lack of development and adequate resources, traditional knowledge and traditional cultural expressions are often the primary forms of IP originating from the tribal and hilly areas of India. Currently, there is no framework or treaty at the national or global level dealing specifically with traditional knowledge. India has adopted defensive protection of traditional knowledge in the form of the Traditional Knowledge Digital Library, which prevents the patenting of inventions based on traditional knowledge. This is a passive form of protection which does not empower tribal communities to be in charge of the exploitation of their own IP.
An IP Fund becomes pointless if there is no mechanism in place for communities to harness and enforce their IP rights. The Fund might promote initiatives to raise awareness about IP, but a community cannot utilize this knowledge if it does not have recourse to legal action against those appropriating their traditional knowledge. Even if an IP Fund is established, it would need laws and regulations to govern its management and allocation of funds. Considering the lack of a global convention on this issue, enacting legislation at the national level would be a small but significant step. It would at least prevent unauthorized exploitation of traditional knowledge at the local level and grant a community a degree of ownership over their own traditional knowledge.
Many tribal and hilly areas in India are conflict-ridden zones. In such cases, a more holistic view of development and preservation of tribal culture would be more helpful than a Fund specifically meant for instilling IP culture within these communities. It is important to acknowledge the tribes as more than a mine for IP. The tribal and indigenous communities of India are a living source of dynamic traditional knowledge and practices. The welfare of these communities should be funded through various departments responsible for different facets of development instead of a single IP Fund.
While the intentions behind creating an IP Fund are admirable, doing so without first improving the IP regime surrounding traditional knowledge in India would be akin to putting a band-aid on a broken leg.
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