Review: ‘Protection Of Traditional Health Knowledge: International Negotiations, National Priorities And Knowledge Commons’ By Ghazala, J., Priya, R. & Deepa, V.K.

Author: Intern - Mannika Gupta

Citation: Javed, Ghazala, Ritu Priya, and Deepa V. K. ‘Protection of Traditional Health Knowledge: International Negotiations, National Priorities and Knowledge Commons.’ Society and Culture in South Asia 6, no. 1 (January 2020): 98–120. https://doi.org/10.1177/2393861719883069 

Introduction

The research article discusses how Traditional health knowledge (“THK”) being a promising domain of Traditional knowledge (“TK”) is currently highly prone to misappropriation due to its immense economic and commercial value. It highlights and brings out the issues being negotiated at the WIPO’s Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (“WIPO-IGC-GRTKF”) with respect to a proposed treaty. The research article also provides that a comprehensive national policy instrument and sui generis law for the protection of THK is the need of the hour. The article proposes that national governments should be given status of knowledge holders for THK in the public domain as put forward by India. The research article boldly suggests that the framework of a ‘Knowledge Commons’ for just sharing of TK and its innovations may be a better option as compared to bringing TK under the domain of Intellectual Property (IP).

Traditional Health Knowledge and Intellectual Property

The research article discusses the vast richness of India’s TK which is present in both codified and uncodified forms. It is correctly highlighted that since THK has promising economic value, it is under threat of external commercial forces, for example, misappropriation of Genetic Resources (“GR”). It is asserted that although IPR has been posited as an instrument to sufficiently protect biodiversity and ensure that benefits arising from use of TK such as its GRs are shared in a fair and equitable manner among the original custodians, it fails to do so.

It is maintained that since proponents of IPR are unwilling to share the ‘innovation’ with the original holders of the TK, or to commit to sufficient benefit sharing for this widely diffused public knowledge based on TK, the IPR regime is in direct conflict with the principles underlying THK. However, this appears to be a narrow view of the regime. It can be argued that the IP has vast scope to generate incentives for local communities to conserve their bio-diversity as it would directly make big industrialised countries responsible for equitable benefit sharing with indigenous communities. Furthermore, IPR has proved itself as an evidence-based mechanism that sufficiently promotes technological innovation and knowledge dissemination.

International Protection Mechanisms for Traditional Health Knowledge

Both defensive and positive protection mechanisms are elaborated upon in the article. Defensive protection means to prevent piracy and application for IP as new inventions, for example, India’s Traditional Knowledge Digital Library (“TKDL”). Positive protection is geared towards granting rights to holders of THK and accrue benefits through commercialization on Mutually Agreed Terms. Although certain legal instruments are mentioned in the article like, Article 31 of the UN Declaration on the Rights of Indigenous Peoples and Cancun Declaration, the same are declared to be grossly insufficient to deal with THK. To resolve this, IGC-GRTKF is negotiating three separate texts for developing international legal instruments for providing effective protection to TK, TCE and GRs.

At the 27th IGC-GRTKF in 2014, the countries with vast TK framed the idea of tiered/differentiated approach to TK/TCEs. It provided a framework for categorising various kinds of TK/TCEs in terms of their diffusion or lack of it with regard to the public and then developing a strategic approach which could ensure whether exclusive or non-exclusive rights should be given to the beneficiaries of TK/TCEs. India also proposed the role of nation states as custodians of commonly held TK and their fiduciary role vis-à-vis indigenous communities. The proposal to include national authorities within the definition of beneficiaries appears to be highly useful where TK cannot not be directly attributable to a local community and will thus provide an extra layer of protection to TK.

Although a sui generis mechanism of protection is being negotiated, still the main divide in the approach, which is evident is that developed countries are trying to fit provisions of the proposed texts in prevailing IP laws. Hence, it can be observed here that countries having vast resources of TK, like India, could want to ensure that publicly available TK is also protected and exclusive rights be granted to TK holders. On the other hand, developed countries like the United States, could prefer free access to use of publicly diffused TK, allowing only miniscule benefit-sharing rights to specific TK holders.

Conclusion

Through a comprehensive discussion on current attempts by the international community to safeguard the THK, the research article attempts to highlight the pressing need of introducing a sui generis legislation. The research article concludes by proposing the framework of a ’knowledge commons’ that acknowledges the sources of all knowledge elements and allows for their free use rather than IP for just sharing of TK and its innovations. Although idealistic, this proposition appears to fall short on the practical aspect and may be insufficient to provide the required protection.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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