Protecting Indigenous Traditional Knowledge Using An Approach Based On Holistic Principle
Introduction
Indigenous peoples have been developing their own knowledge systems for thousands of years. This so-called Indigenous knowledge is connected to environmental management and the preservation of nature, among other things, and has evolved over time to take into account various pre-existing knowledge systems. Traditional knowledge (TK) is a body of information passed down orally from generation to generation that has been established through practise and experience. TK is a situated knowledge system that generates information from a range of sources and is not just a local knowledge system. TK is a supplement to modern knowledge systems that uses social tactics and technological innovations to produce coherence.[i] TK symbolises a worldview held by Indigenous Peoples all across the world by depicting society history, human growth, cultural ideology, and the creation of customary standards.[ii] Their similarities about the importance of bonds and interdependence among individuals, groups, countries, and the spiritual realm have been compared to “epistemic ignorance[iii].” But many instruments now strictly abide by the recognition of TK as such. The Nagoya Protocol, which was signed in 2010, highlights the need for an archive of Indigenous biocultural community protocols, which are considered as norms linked to social structures and processes. In the end, it supported landmark legislation, such as the prohibition on biopiracy.[iv]
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Even though traditional knowledge (TK) encompasses a wide range of subjects, nature-based knowledge is essential because it includes knowledge about safeguarding plants, having access to genetic resources, and managing biological resources sustainably. Both publicly and privately[v], TK is practised. The basic distinctions between the perspectives that TK is a shared cultural value for Indigenous Peoples and the perspective that TK is a privately held commercial asset are captured in this feature.
For a number of reasons, including the fact that it raises the economic value of biodiversity, traditional knowledge (TK) has become more significant to the global economy.[vi]
Including TK protection in some types of exclusive property regimes, including intellectual property rights, may have economic benefits (IPR). Finding a plan that blends exclusivity and private property rights with the human rights component required for a TK protection approach is the key challenge.
This essay first conceptualises traditional knowledge (TK) before critically analysing the advantages and disadvantages of some of the international efforts to improve TK’s protection and accessibility. A brief list of national remedies that have been applied in other nations is also included. This study will clarify the steps that need to be taken to create a more workable strategy for balancing access to and protection of TK in a way that better respects TK’s intrinsic characteristics and is more inclusive of the opinions and requirements of Indigenous groups. A new concept of rights known as “biocultural rights” is emerging as a result of the proposal’s perspective on traditional knowledge (TK) from the perspective of biodiversity and connections between it and cultural elements that are typical of Indigenous groups.
Integrating principles associated to Indigenous Peoples’ right to self-determination, such as justice, fairness, and the right to culture, will be necessary to achieve this (IPRSD). We contend that this cannot be done by simply establishing a fresh sui generis kind of right for TK, which has previously been repeatedly proved to be impractical. The best way to accomplish this is to revaluate the existing strategy in all TK-related legislation at all decision-making levels in a way that integrates and mainstreams surrounding values, such as those related to Indigenous TK. This requires adopting these notions into systems like private law, where the existing utilitarian, economic, and owner-centered approach needs to be modified as we explain.
A Short Description Of Traditional Knowledge
Although the term “traditional knowledge” lacks a precise definition, it is commonly accepted that it refers to a wide range of information that has been created via traditional practises that are fundamental to Indigenous or traditional cultures. These activities provide information that is a part of a society’s value system and is passed down from one generation to the next through knowledge, education, and certain forms of expression. Stories, folklore, rituals, music, and other rigorous customs that are regarded as universal laws in a given society[vii] are usually used to impart these.
Although oral tradition is the only official source of this knowledge, it is unquestionably valuable or authentic.[viii]
Since TK is one of the key components of a full identity for many groups of people, there is a rising push to codify it. A particular group can be seen of as having TK jointly since this identity is linked to both the organic and artificial ways that Indigenous Peoples[ix] have existed, and because genetic resources cannot be purchased.[x] It is challenging to accurately identify and follow the knowledge holders[xi], partly because complex group ownership. A TK may belong to a single person, a group of people, or an entire community. Additionally, since the information is always evolving in response to fresh experiences and desires[xii], neither updating nor fixing the material is necessary. Due to continuing observation and sharing of such knowledge among community members, the traditional community (typically the Indigenous community) is emphasised as the knowledge’s repository.[xiii]
Locality, oral transmission, a focus on the empirical rather than the theoretical, repetition, changeability, being broadly shared, fragmentary dissemination, a focus on practical performance, and other qualities are some of the features that define TK.
They cover topics including forestry, environmental protection, nutrition and medicine, as well as understanding of minerals and soils, ecosystems, agriculture, and climate change.[xiv] These attributes largely concern plants, their traits, and applications. TK should also contain strategies and plans for safeguarding a community’s accumulated genetic resource knowledge for future generations.[xv] This article makes the case that TK has evolved into a unique body of knowledge. Its production techniques provide concrete examples of Indigenous research and demonstrate their ability to work with Western science.
Incorrect Jurisdictional Effort To Protect Traditional Knowledge
- Ipr-Based Legal Protection Of Traditional Knowledge
As has already been established, TK is currently a very valuable source for technical details about a range of applications. If it could be protected by some system that ensures the protection of private property rights, it might have favourable economic effects. Numerous attempts have been made to incorporate TK and related advancements into the IPR framework because TK is predominantly made up of intellectual inventions and creations, which is the traditional field of intellectual property protection. But it was immediately apparent that employing IPR for TK has its limitations.
These initiatives fell short for two reasons. First, many IPR system architectures are insufficient for innovations based on traditional knowledge, which has created a dilemma whereby TK-based products or procedures may be protected by IPR but TK itself cannot. The exclusive attitude of the IP system and the way we currently defend and conceptualise IPR are both deeply rooted in utilitarianism and at odds with the perspectives of indigenous people. The second element is connected to the first and may be thought of as its main cause.
Attempts to address the issue at hand have been undertaken by IPR researchers and organisations, but they haven’t always been very successful. A “community rights regime,” in which Indigenous Peoples possess ownership rights to TK instead of a small number of capitalist proprietors[xvi], is one concept. Drahos suggests creating a worldwide bio-collecting society to address the issues of TK[xvii] use that impact both businesses and Indigenous Peoples. Correa suggests adopting a “intermediate approach” by creating a misappropriation regime that would contain TK information, proof of provenance, and a misappropriation hotline.
- Protection Of Traditional Knowledge Based On Human Rights
Indigenous culture is not complete without TK, which has evolved over time in the customs of the respective tribes. The importance of TK as a way of life is crucial for this society. In other words, as TK rights are a component of cultural rights and are crucial to Indigenous countries’ traditional ways of existence, it only makes logical for them to be included by human rights laws.
Indigenous Peoples should own their TK when it has significant cultural significance, according to a number of international human rights conventions. The importance of genetic resources and biological variety preservation for the survival of Indigenous people is being more regularly acknowledged by international law. The existence of cultural phenomena with both material and immaterial components is necessary for the existence of indigenous identity. Along with highlighting the advantages of TK use, these ideals are essential to Indigenous cultures. Due to its function as a cultural commons, protecting TK as part of cultural human rights may provide ‘moral’ rights; yet, the human rights framework also protects the material interests of creative creations. International human rights law consistently upholds the idea that TK is the primary source of these intellectual advances for Indigenous populations
Conclusion
On how humans interact with their surroundings, insights from anthropology, ethnobiology, and ethnoecology are provided. Both the human rights regime and the biodiversity regime grant Indigenous Peoples particular rights; the former grants cultural rights and the latter so-called biocultural rights. In order to stop the unfair exploitation of their discoveries and creative endeavours made possible by TK, Indigenous Peoples also require the ownership regime of exclusivity afforded by frameworks like IPR. However, as was already said, each of these three regimes is currently governed by independent laws. Therefore, none of them adequately address the fundamental issue of how to strike a balance between TK preservation and access while taking into account the concerns of Indigenous Peoples. We contend that one way to encourage the systematic integration of these regimes is to combine the concepts of private property with those of human rights regimes through a vision that mainstreams moral principles like justice and fairness as well as a right to culture related to IPRSD. For instance, in the area of IPR, this would allow for the protection of inventions relevant to TK while also advancing the interests of Indigenous Peoples by thoughtfully including the essential human rights at stake. In the end, this method of TK control would likewise be in line with this notion. In any case, a growing body of research suggests that indigenous governance models could serve as an alternative to neoliberalism and other market- and economic-centric policies, providing suitable answers to some of the major problems with neoliberalism that are pertinent to the context of traditional knowledge (TK), such as promoting decolonization and the meaningful development of societies, particularly in light of contemporary resilience and adaptation strategies.
Author: Apoorva Pradhan, A Student at the Amity Law School, Noida, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.
REFERENCES
[i] Indigenous Knowledge and Western Science: Competing Viewpoints or Complementary Frameworks? (2004) 18(3) (3) Higher Education Journal of South Africa, Lesley le Grange
[ii] Stanislav Ksenofontov, Norman Backhaus, and Gabriela Schaepman-Strub, There are New Species: Indigenous Knowledge of Biodiversity Change in Arctic Yakutia, 42(1) Polar Geography, 34, 35 (2019).
[iii] Rauna Kuokkanen, “The Responsibility of the Academy: A Call for Doing Homework,” Journal of Curriculum Theorizing 26(3), no. 61 (2010).
[iv] In 2020’s 26(10) International Journal of Heritage Studies, “Native American Governance of Cultural Heritage: Seeking Alternatives to Co-Management,” 919 and 933 were the key words. Rauna Kuokkanen and Sam Grey
[v] For example, have a look at Paul Kuruk’s edited book Traditional Knowledge, Genetic Resources, Customary Law, and Intellectual Property. A Global Primer, Part I, will be released by Edward Elgar in 2020.
[vi] United Nations University, 2015, pp. 27–38, Weathering Uncertainty: Traditional Knowledge for Climate Change Assessment and Adaptation, edited by Douglas Nakashima and others.
[vii] The Battle for the Public Domain and Traditional Knowledge 2006, 5 Doris Estelle Long Intellectual Property Law: Volume 321 of the John Marshall Review.
[viii] Hans Morten Haugen’s article Traditional Knowledge and Human Rights, page 8 2005, p. 665, The Journal of World Intellectual Property.
[ix] Ibid.
[x] The Role of Databases and Registers in the Protection of Traditional Knowledge Associated with Genetic Resources Unigrafia 2011, Yovana Reyes Tagle, p. 29 (2009) Journal of Biodiversity & Conservation
[xi] International, 1(5), Indira Prashad Oli, “Protecting Community Interests: Access and Benefit Sharing from Biological Resources and Related Traditional Knowledge in the HKH Region.”
[xii] Tagle, Theo (n 16).
[xiii] Henry P. Huntington, “Observations on the Utility of the Semi-Directive Interview for Documenting Traditional Ecological Knowledge,” 51(3) Arctic 277, 1998.
[xiv] Henry P. Huntington, “Observations on the Utility of the Semi-Directive Interview for Documenting Traditional Ecological Knowledge,” 51(3) Arctic 277, 1998.
[xv] Traditional Knowledge from a Legal Perspective: The Case for Intellectual Property Protection, Journal of International Economic Law, 7(2), Thomas Cottier and Marion Panizzon, 2004
[xvi] “Developing a “Rights Regime” in Defense of Biodiversity and Indigenous Knowledge,” by Singh Nijar Gurdial, in John Mugabe and others, eds., Access to Genetic Resources: Strategies for Sharing Benefit (African Centre for Technology Studies IUCN 1997).
[xvii] Indigenous Peoples’ Innovation and Intellectual Property: When Cosmology Meets Property Critical Studies in Innovation, 29(3), 2011, pp. 233-252, Peter Drahos
