In countries, where tradition and knowledge are inter-twined, the need for protection of Traditional Knowledge is being recognized widely. India, one such hub of traditional knowledge, faces some of the most serious threats in terms of abuse of the same. In the absence of a legislation, protection of traditional knowledge becomes most difficult. However, In India, the State of Kerala has taken a step forward, by proposing the draft legislation to protect traditional knowledge in the state.

A major issue for Kerala relates to the protection of Ayurveda. The principles of this medical science do not merely exist in books or minds, but are also contained in the practice by a large number of users, many of whom earn their livelihood, through its practice. But while the science yields business to many, no legal property rights over such knowledge exist, which enhances the scope for its private misappropriation.

The draft proposes that the first step in this regard is codification, in pursuance of which manuscripts and texts, have been identified and a database has been created in accordance with the guidelines of the World Intellectual Property Organization. Codification, while enabling identification of traditional knowledge, prevents direct misappropriation. However, the probability of indirect misappropriation through a patent after some minor modification as private property cannot be negated.

At present, protection of traditional knowledge associated with the use of biological resources, is referred to in the Biological Diversity Act, 2002. The draft makes it obligatory for foreigners to seek the approval of the State Biodiversity Board for acquiring any biological resource present in the state or the "knowledge associated thereto". According to the proposal, the State Biodiversity Board will ensure that the "knowledge associated thereto" can be obtained only on the condition that all useful modifications derived from or based on this knowledge must be available for anyone to use. Further, the draft also seeks for the State Biodiversity Board to ensure that any innovation based on traditional knowledge (associated with biological resources) be integrated in the realm of "creative commons". Such a practice would have two features: first, while a patent may be taken out on such an innovation, it is licensed for general use; and secondly, this license for general use itself contains the condition that any further innovation based on the original innovation is also put back into the realm of "creative commons". This scheme would prevent misappropriation of traditional knowledge not only by Multi National Companies, but also on the behest of Indian Corporations. The draft also accords for certain specific cases to be included as exceptions. It also recommended a parallel sui generis system to be created ab novo for traditional knowledge falling out of the realm of the Biodiversity Act, in the absence of an analogous statute for other spheres of traditional knowledge.

The policy, still at the draft-stage, is silent on certain important issues such as jurisdiction. Being one of the very few attempts in the world that move towards policy creation in this arena, the endeavor on the part of the State Govt. of Kerala, is indeed a laudable step towards protection of this vital domain of Intellectual Property.

© Lex Orbis 2008

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