CLASS TEACHING PRESENTATION

SUBJECT: LAW & CREDIT

TOPIC: NATURE AND CHARACTERISTICS OF

TRADITIONAL KNOWLEDGE

Submitted By:
Sutapa Garai
LL.M 3rd Semester
Roll No. BUR/LAW/2022/025

Submitted To:
Dr. Rakesh Mondal
University of Burdwan
Introduction to Traditional knowledge (TK): -
Traditional knowledge (TK) is originally cultured oriented and it is essential to the cultural
identity of the society from which it is originated, regulated and secured. It is used from
ancient times by indigenous local communities under the local laws, customs and culture.
It is an essential ingredient for achieving sustainable growth. It has always been a treasure
readily accessible and has thus been vulnerable to misappropriation. It is most often passed
down as oral perception from generation to generation.
The role of traditional knowledge is very important in making a country more developed.
It gives a chance for traditional based literary, artistic or scientific works, performances,
inventions, scientific discoveries, designs, marks, names and symbols, undisclosed
information, all other traditional based inventions and creations resulting from intellectual
activity.
Definition of TK: -
There is no agreed definition for "traditional knowledge". The word Traditional
Knowledge is itself a suggestive word. “Traditional” means hereditary or which is given
by generation to generation. “Knowledge” means useful information.
“Traditional knowledge refers to knowledge acquired over time by people in an indigenous
society, in one or more cultures, based on experience and adjustment to a local culture and
climate, and continuously predisposed by each generation's developments and practises”.
Thus, Traditional knowledge refers to:
(a) Knowledge, know-how, skills, innovations and practices that are developed, sustained
and passed on from generation to generation within the people of Indigenous and local
communities around the world which often forms part of their traditions, culture, spiritual
identity and heritage.
(b) Also, as Knowledge or practice for which Indigenous communities act as the guardians
or custodians.
This is the knowledge which has been preserved in human memories and not written
anywhere. It is accessible through recall and practice of learned skills in a useful way in
day-to-day life.
Criteria to qualify as Traditional Knowledge: -
Traditional knowledge basically encompasses knowledge has been gathered over centuries
because of the customs. In addition, it often takes account of the enlargement / adaptation of
production from point to point, depending on society's evolving requirements. These
innovations serve as an extension to current awareness as well as shape element of the
information transmitted to the subsequent age group, thus defining the essence of conventional
knowledge for the subsequent age group collectively. From the above points it can be noted
that the fundamental basics of Traditional Knowledge consist of:
a) Construction of a new practice / process for fulfilling a need.
b) Transmission of the process/ method through generations by the virtue of customs.
c) Restricted to the group / community within a particular group / community by virtue
of its values.
Reasons for protection of TK: -
The key reasons for granting TK security incorporates:
a) Consideration of equity –
In several instrument for the security of TK, the fundamental opinion is based upon
equity contemplation. TK creates value which is not sufficiently acknowledged and
remunerated due to the scheme of requisition and reparation currently in place.
Therefore, it would be important to protect TK to add justice to primarily undeserved
and unequal ties.
b) Conservation questions –
The second element explaining the TK security argument is focused on the value of
such information for the purposes of preservation. Therefore, maintaining biological
assortment in agricultural systems create value for the universal region. IPR’s may be
used to raise revenue to continue operations that would otherwise be discontinued. For
example, if traditional farmers deserted the use and breeding of farmers' varieties
attracted by the higher income obtainable by planting modern varieties with higher
yields, a severe loss of biodiversity may occur. Under this strategy, TK safety helps to
fulfil society’s wider environmental conservation, sustainable agriculture and food
security purposes.
c) Preservation of Traditional Lifestyles –
Others see TK security as a mechanism for encouraging the preservation of traditions
and proficiency that represent traditional styles of life. The notion of "security" is very
different in this context from the notion applied under IPR’s. The core component of
the right to self-identification and a prerequisite for the continued survival of local and
traditional cultures, the protection of TK is also an elementary aspect of humanity's
cultural legacy.
d) Avoiding Bio Piracy –
As the commercial development is increasing, technologically advanced countries
are using those biological resources and biological components without taking
permission or providing any fair compensation to those indigenous people. When
these biological recourses are used in this unlawful way, it amounts to a theft called
"Bio-piracy".
For example, communities practicing Unani or Ayurveda are concerned that the
pharmaceutical and beauty industries are exploiting their knowledge (which they’ve
gathered over centuries) to make huge profits.
Therefore, in order to stop unauthorized use and commercial exploitation of these
knowledge by developed countries, the Indian Government should take effective
 measures to protect Indian indigenous knowledge and biological resources from
commercial interest of the developed nations.
e) Promoting use and development –
The encouragement for the use of traditional knowledge is a significant aim in itself.
The security of TK demands that the "wider appliance" of TK must be endorsed.
Protecting TK from loss and embezzlement, or offering reimbursement to TK holders,
can be considered as the significant basics to excite the wider use of such information.
A fundamental reason for protecting TK from destruction and loss may be to promote
growth. In the establishment procedure, TK is an underutilized source. Legal security
can help to exploit the possibilities of products and services based on TK. Traditional
Knowledge can also be a vital resource for strengthening local innovation, and
innovation is necessary for local cultures to rebuild.
Practicing Traditional Knowledge:
❑ We use Neem while anybody suffering from any kind of fungal infection on skin.
❑ If we cut our fingers while chopping vegetables or got hurt while playing, immediately,
we apply turmeric paste on the wound that is healed in a day or two.
❑ In case of cough and cold, we use basil leaves (Tulsi) to get rid of it.
❑ In case of complaint about indigestion or stomach ache, grandma prepares ginger or
lemon decoction which solves the problem.
❑ Bone setters set the broken bone with herbal medicines.
❑ Even the bites of various insects including snakes and scorpions are cured with the
use of plants and roots.
This life form of Biological Variety is known as "Biodiversity". New products have been
discovered through research which is based on "Biological Recourses" named "Bio
prospecting".
Nature and characteristics of TK: -
Nature:
➢ Is generated within communities,
➢ Is location and culture specific,
➢ Is the basis for decision making and survival strategies,
➢ Is not systematically documented,
➢ Is dynamic and based on innovation, adaption, and experimentation,
➢ Is oral and rural in nature,
➢ Can be found in a wide variety of contexts, including: agriculture, scientific,
technical, ecological and medicinal knowledge as well as biodiversity-related
knowledge.
Important Characteristics:
1. The creation of TK is Collective and Holistic:
Indigenous peoples or local communities live their lives with vast knowledge formed over the
centuries during their daily life interacting with the environment. Therefore, TK is holistic
in nature and cannot be separated. For example, a festival after the taboo month celebrating
the beginning of the hunting season should avoid the breeding season of the animal, a form of
TK that ensures sustainable hunting.
TK is an articulation of phenomena (any fact or situation that is observed to exist or happen).
Instead of step-by-step deduction, TK uses the repeated verification of an idea that a person or
group of people figure out from facts. However, TK is not necessarily a collective creation.
Individual creation is also possible. On the other hand, modern science and technology do not
exclude collective creation for innovations; although usually only one or more trained
individuals own the technology as a small, definite group of individuals.
2. Oral transmission of TK from generation to generation:
Traditionally indigenous peoples had no writing system. Indigenous people used to
transmit knowledge by oral language or by body language. However, not all TK lack the
written records, such as TK concerning traditional medicine. But, the vast majority of TK is
NOT documented. Today, indigenous peoples may also use writing to transmit their TK,
whether new or old. It is being considered by the communities as gift of God and not as a
private property.
3. TK is changeable, and may evolve because of changes in the social environment:
"Traditional" does not just mean knowledge of the past, but rather that the method of creation
of this knowledge is in the "traditional" way. Since people ‘s interaction with the
environment produces is by no means static, but rather dynamic, because of
environmental changes. Since, in the past, the environment changed very slowly, TK also
changed in a very slow and continuous way.
4. The innovator is often unidentifiable:
Many peoples accumulate TK as a collective creation without a written record. Therefore,
the innovators are often unidentifiable. Modern technology, by contrast, has written records as
a rule, and places great emphasis on the importance of determining the original creator.
Nevertheless, since, in modern times, indigenous peoples can invent some TK quickly, their
innovator usually is identifiable.
5. Residents of specific areas share TK:
Often a closed society creates and preserves its TK. The dissemination of TK is limited
and non-systematic. One individual, a small group of individuals, or even an entire
community may all share TK. The indigenous peoples usually do not have the same concept of
private property as in mainstream society. Modern technology, however, spreads in a broad and
systematic manner, and mainstream culture embraces science by granting the specific
individuals who create technology individual rights through the IP system.
6. Ownership of TK:
Because tribes and indigenous peoples develop ideas, opinions, or thoughts as TK, the creation
of TK is a process of gradual accumulation over time. This is not to say that it is not the product
of each individual. The creation of TK may be the work of one individual or the joint efforts
of a group of individuals. Therefore, an individual, a family, or a local community, or a
tribe may all own TK. For example, several million women and older people have traditional
household remedies from their mastery of knowledge of the special medicinal properties of
plants. Most TK involves collective ownership by a group of people.
7. Continuous evolution:
While TK often appeared in early times when tracing the origin of this knowledge was
impossible, TK still changes with the times. For this reason, TK is not truly ancient, backward,
or unchangeable knowledge, as TK can develop new information and improvements as a result
of this unceasing change.
8. It is learned through continuous observation, experience and practice.
9. It is inseparable part of communal and cultural life of its holders, and it is usually
associated with the biological resources.
10. It is not limited to any specific field of technology or the arts. It is owned by a
community and its use is often restricted to certain members of that community.
Types of TK: -
From its domain of application and associated management approaches, TKS can be
categorized as, -
i. Traditional Ecological Knowledge (TEK):
TEK refers to the evolving knowledge acquired by indigenous and local people over hundreds
or thousands of years through direct contact with the environment. This knowledge is
specific to a location and includes the relationships between plants, animals, natural
phenomena, and the landscape that are used for livelihood and sustenance of life, such as
resource gathering through hunting, fishing, agriculture, livestock farming, forestry,
Argo-forestry, etc. There are practices for weather forecasting too. Such TEK considers
natural landscape characteristics (topography, slope, soil and rock characteristics), weather and
climate as well as types of flora and fauna.

ii. Traditional Technical Knowledge (TTK):

TTK represents the knowledge related to design and development of tools, implements
and gears for different application in the context of natural resource management by the
indigenous communities. Such practices are related to agriculture, fisheries, animal
husbandry, forestry, handloom and handicraft etc.
 iii. Traditional Value and Ethics (TVE):
TVE is linked to traditional cultural practices which prioritize dos and don‘ts in the
aspects in relation to natural resource harvesting, conservation, and equitable sharing
etc. During the process, it evolves the concept of sacred species, space, forests, water bodies,
etc. This involves seasonality-based practices like restriction of fishing during breeding season,
harvesting forest resources during flowering period, etc.

There are certain TK practices which are developed due to social changes. Some of them are
as follows-
1. Traditional Water Harvesting practices, e.g., Step well, an ancient water harvesting structure,
Tanka, an ancient water harvesting system, Johad, an ancient practice of Rajasthan, Zabo a
traditional practice among the Naga Communities.
2. Bamboo drip irrigation, e.g., Surangas a traditional practice in Kerala, Bamboo drip
irrigation of Karbi-Anglong, Assam and Meghalaya, traditional bamboo drip irrigation in
intermediate rainfall area of on the northern plains and foothills of Assam-Arunachal and
Bhutan border area.
3. Traditional Housing, e.g., Vernacular housing of Kerala, Chhattisgarh, Himachal Pradesh,
Apatani Community of Arunachal Pradesh.
4. Traditional Agricultural practices, e.g., design of traditional plough in different part of India,
plough use by the Tangsa Naga of Arunachal Pradesh, varied design of sickle used in different
regions of India, traditional rice land races.
5. Seed Preservation techniques, e.g., seed preserved by the Nyishi women in Lower Subansiri,
Arunachal Pradesh.
6. Weather Forecasting/Prediction, e.g., farmers in Himachal Pradesh believe that if the
honeybee flies toward northern hill there will be no rainfall, if they fly towards south there will
be good rainfall, in Rajasthan many local communities believe that appearance of many
butterflies together indicate a good rain and get better crops, similarly, Karbi Hill Tribes of
Assam have a traditional calendar system which is used for agricultural planning.
7. Traditional practices in animal husbandry, e.g., in Barpeta and Baksa districts of Assam,
villagers keep their domesticated cattle in multi-storied cattle sheds; the first floor of the
bamboo-steel multi-storied cattle shed is used for keeping the cattle.
Landmark Case Law: -
1. The Turmeric Case:
India garnered global attention with the curious case of turmeric. In a landmark win in 1997,
the Council of Scientific and Industrial Research (CSIR), India, was able to revoke a patent
filed by two US-based scientists.
The case began in 1995 when two scientists of the University of Mississippi Medical Centre
were granted a patent by the US Patents and Trademarks Office (USPTO) for discovering
the wound healing properties of turmeric.
This came as a shock to India, where people have used turmeric to treat several ailments
including wounds, for many generations. The CSIR then appealed to the USPTO to revoke
the patent on the grounds that it was ‘prior art’, a kind of traditional knowledge which is
already known. What followed was a battle between USPTO and CSIR. Eventually, the
CSIR convinced USPTO that the healing properties of turmeric were indeed traditional
knowledge. The patent was thereafter revoked.
The episode of the turmeric patent was treated as a red flag for the exploitation of the country’s
traditional knowledge, especially in the field of medicine. Since then, CSIR and the
government have prepared a digital library for traditional Indian medicinal knowledge. This
library has been created to protect the traditional knowledge of Indian medicines and curb
misappropriation at International Patent Offices.
Over the years, the Traditional Knowledge Digital Library (TKDL) has systematically and
scientifically recorded traditional medicinal knowledge such as Ayurveda and unani from
ancient Indian texts. These recording have also been translated into various global languages.
According to the official website of the Traditional Knowledge Digital Library, there are more
than 3.6 lakh formulations or practices recorded in the database.
Laws Protecting Traditional Knowledge: -
National and regional laws protect TK within a limited space, but the impact of this knowledge
system is global. In the existing prevailing laws and legislations, TK has been inadequately
represented. However, a sui generis system to promote the TK has been proposed. This
development owes greatly to the Nagoya Protocol, where India is a signatory.
India accommodated TK both by amending existing IPR statutes and creating new ones. As a
matter of practice, the onus for protection of TK/TCEs globally vests upon WIPO of WTO
who are responsible for TRIPS (Trade-Related Aspects of Intellectual Property Rights)
to make a strategic alteration to accommodate TK and TCEs (Traditional Cultural
Expressions). Some of the recent legislation that came up to protect TK in India is “The
Biological Diversity Act, 2002”, the “Protection of Plant Varieties and Farmer’s Rights
Act, 2001” and the “Geographical Indications of Goods (Registration and Protection) Act,
1999”. There has been significant development in various existing IPR legislations in India
like the Patent Act, Copyright Act and the Trademark Act.
Indicating the various legislations pertaining to the protection of TK in existing IPR legislations

S. No. Indian Legislation Specific Provision Protecting TK in India

1 Patents Act 1970 (Amendments of Sections 3 (b), (c), (d), (f), (h), (i), (j) and (p) (But
2002 & 2005) falls well short of patenting a TK)
2 Copyright Act 1957 Section 31A, 38 and 57
But the term ’folklore’ is absent. (Hence TCEs
cannot be protected)
3 Geographical Indications Act 1999 Section 11, 24 and 25
(It is at its nascent stage and weak in its
implementation)
4 Trademarks Act 1999 Section 29
(It is challenging to get a trademark of all marks
used throughout the development of TK)

5 Biodiversity Act 2002 Sec 6(1)

(Very poorly implemented so far in India)

A. Biological Diversity Act, 2002 –

Being a signatory to the Convention on Biological Diversity (CBD), India considered it
appropriate to give outcome to that convention. The Biological Diversity Act of 2002 was
then approved by India to encourage the protection of biological diversity, the
sustainable use of its elements, and the equal distribution of profits resulting from the
use of natural assets. The regulation deals with the fundamental issues of;
• Right to use to natural assets.
• Gathering and consumption of natural assets.
• Dividing the profits occurring out of such entrance.
• Safeguarding from bio piracy.
At the local community level, the law provides for the development of the National
Biodiversity Authority (NBA) under section 8, the State Biodiversity Board (SBB) under
section 22 of the Act, and Biodiversity Management Committees (BMCs). No person might
apply for any intellectual property rights in or outside India for any discovery based on
study or knowledge on an Indian natural reserve without obtaining former consent from the
NBA. The act provides a structure for property rights which seeks to be very firm on the
issue of access to biological resources outside India. The legislation also provides for the
structure of profit to be shared with the people responsible for developing, improving and
using this technology from the commercial use of TK.
 B. The Protection of Plant Varieties and Farmer’s Rights Act, 2001 –
This act came into effect from September 2001. This is the sui generis law drafted to comply
with the requirement of the TRIPS agreement of WTO. The criterions under the plant
varieties which are entitled for safeguarding are novel variety, current variety, chiefly
derived variety and cultivator’s variety. Farmers and tribal groups use conventional
farming methods to cultivate and preserve different traditional range of crops. The idea of
efficient profit-sharing agreement between the supplier and the recipient of plant genetic
resources outlines the fundamental component of the act. A plant breeder’s right (PBR) on
a new variety can be attained by the plant breeder if it fulfils the decisive factors of distinct,
stable, uniform and novel. PBR can also be obtained on traditional plant diversity.
C. Geographical Indications of Goods (Registration and Protection) Act, 1999 –
TK is jointly held by local people, and GI is the most suitable form for safeguarding of
Traditional Knowledge. A community in an exact locality is waged by the Geographical
Indications of Products (Regulations and protection) Act. GI security is valid for 10
years, but it can be extended any number of times in order to safeguard GI for an
infinite period of time. The methods of manufacturing products are evolving with time in
order to give a better quality to the product. GIs can be used to shield traditional therapeutic
products as well.
Sui generis Strategies Developed in India to Protect TK: -
Sui generis means something unique and exclusive to a specific jurisdiction. Sui generis
legislation is passed with specific objectives in mind to achieve certain protection for TK within
the IPR domain, some sui generis legislation came into force to address the issue.
India witnessed significant activism to protect traditional expertise from being patented in
Europe and America. The basmati and neem controversy created enormous pressure leading to
some simple yet significant sui generis protection of TK.
Traditional Knowledge Digital Library (TKDL): -
With biopiracy being rampant and the cost of fighting litigation to combat such white-collar
pirates running into millions of dollars, a strategy was developed by the Government of India
(GOI), which took around eight years to materialize and be effective. Traditional Knowledge
Digital Library or TKDL was established with the objective of incorporating a list of codified
TK practices of India. This dynamic list includes more than thirty thousand medicinal
formulations and is made available online to provide relevant information to patent and
trademark examiners in offices of respective jurisdictions, refraining from a grant. The data is
made available in five UN languages, viz., French, German, English, Spanish and Japanese for
convenience irrespective of the fact that data originated in languages like Sanskrit, Urdu,
Persian and Hindi. After this development, there has been a significant decline in biopiracy
cases and frivolous filing of patent applications related to Indian Systems of Medicines (ISM).
Initiatives taken by Government to protect TK: -
There are some initiatives taken by the Government to protect traditional knowledge which are
as follows:
1. Beej Bachao Movement: In 1995, in affiliation with the residents of Jardhar in Teri
Garhwal district of Uttar Pradesh, the NGO Kalpavriksh commenced a movement to
trace the diversity of indigenous seeds and conservation practices by the local
community.
 2. Honey Bee Network: Honey Bee Network has the world's largest grass-root novelty
database. SRISTI (Society for Study and Initiatives for Sustainable Technology &
Institutions, Ahmadabad) runs this network. The goal is to promote popular innovation,
to protect IPRs for small innovators and to ensure that original innovators and
information providers get the profit out of it.
3. National Innovation Foundation (NIF): NIF was established in Ahmadabad on
February 2000 by the Department of Science and Technology of the Government of
India and acts as a team with the Honey Bee Network. The aim of the NIF is to provide
institutional support for the scouting, spawning, safeguarding and scaling-up of
grassroots technologies, as well as outstanding TK, and to support their transition to
self-supporting activities. It offers an opportunity to promote innovators who, without
or with no government or business assistance, have solved a technical problem through
their own intelligence.
4. Gujarat Grassroots Innovations Augmentation Network (GIAN): In order to
conduct marketplace scrutiny, GIAN selects discovery from the Honey Bee Network
catalog. It establishes ties with institutions for structural design, research and
enlargement in order to increase the technical efficiency of originality. It helps to test
the products and to establish a market-launch approach. This is an attempt to respect
and reward technical innovators and conventional knowledge experts from the
grassroots.
International Regime for protection of Traditional Knowledge: -
1) World Health Organization (WHO) –
On 7th April, 1948, United Nations specialized agency for health called World Health
Organization was set up. The contribution of the WHO in Traditional Knowledge narrates
to its traditional medicine work. The objective of the WHO, as set out in its constitution, is
to achieve the highest standard of health for all citizens, as the economic and commercial
value of traditional knowledge, especially the knowledge of traditional medicine and
medicinal plants, that has become increasingly recognized, with more and more WHO
member states concerned about the need to protect it and ensure that any benefit gained
from its usage is spread equitably.
2) World Intellectual Property Organization (WIPO) –
WIPO’s work on TK and folklore began in 1978 when, WIPO created the Sui generic model
for national folklore protection in cooperation with UNESCO. In 1998, WIPO commenced
a new proposal, including a fact-finding contact mission to 28 countries in IP and TK, which
formed a global study on the needs of IP and objectives of TK holders. At its 26th meeting,
the WIPO General Assembly set up the IGC. It has also done an admirable job for
producing a remarkable variety of documents, including the model clauses for contracts on
genetic resources, the Conventional Information Security documentation toolkit, and effort
on fundamentals of a potential sui generis scheme for the security of traditional knowledge.
3) TRIPS –
Article 27.3(b) of the agreement on trade-related aspects of intellectual property rights sets
out certain conditions under which certain biological materials or intellectual innovations
may be excluded from patenting.
4) The Convention on Biological Diversity (CBD) –
The CBD, signed at the United Nations Conference on Environment and Development in
1992, was the first international environmental convention to develop measures for the use
and protection of traditional knowledge, related to the conservation and sustainable use of
Biodiversity.
Article 8(j) of the CBD, requires parties are required to respect and maintain knowledge
held by indigenous communities, and promote broader application of TK based on fair and
equitable benefit-sharing. Article 16 recognizes TK as a 'key technology' for effective
practices of conservation and sustainable use of biodiversity, with procedural requirements
established in Article 15 for access to genetic resources, including those based on prior
informed consent and mutually agreed terms.
5) 2010 Nagoya Protocol –
In 2001, at the Doha conference, that it was agreed under para 19 of the Doha Declaration
that pursuant on Article 71.1 of TRIPs, the TRIPs council should examine the relationship
between TRIPS and CBD. After several years of debates various fora, the parties to the
CBD meet at Nagoya, Japan in 2010 and finalized the draft protocol which defines the
terms for access to Genetic Resources (GR), their utilization and fair and equitable sharing
of benefits from such utilization. In fact, the Nagoya Protocol broadens the CBD provisions
relating to access and benefit-sharing.