Moulding Traditional Knowledge within trade secrets

MOULDING TRADITIONAL KNOWLEDGE WITHIN TRADE SECRETS

INTRODUCTION

Why did India question the patent granted by US Patent Office on turmeric?[1] Why was there hue and cry all over the Country when anti-fungal properties of Neem were patented?[2] What did the ‘Sans’ contend when Hoodia was patented?[3]

All of these instances and many more raised eye brows because what was being exploited was the Traditional Knowledge (TK) of the holders. Moreover, such acts even posed to be a great economic threat to these people.

It would be an injustice to restrict TK in a single definition.[4] TK is integral to the identity of most local communities. TK is not so-called because of its antiquity but is an ever evolving body of knowledge.[5] It is an attribute of people who are intimately linked,[6] where their knowledge, know-how, skills and practices are developed, sustained and passed on inter-generationally,[7] and often forming part of their cultural or spiritual identity.[8] TK is often considered to be inseparable to a community’s social and physical environment.

Traditional medicine, an important constituent of TK serves the health needs of a majority of people in developing countries.[9] This traditional medicine is preserved, protected and developed by indigenous people since time immemorial. Recently, attempts have been made to exploit this TK for industrial and commercial benefit often leading to misappropriation of the sacred knowledge. Problems are not always commercial in nature and can involve ethical, cultural, historical, religious/spiritual and moral dimensions as well other than legal issues involved. For example, inappropriate use of sacred cultural artifacts, symbols or designs may not cause financial harm but may be offensive to the community.[10]

In lieu of such risks, there arises a need to develop ways and means to protect Traditional knowledge and the interests of its holders. The preservation, protection and promotion of such knowledge based innovations are of utmost importance for developing countries. Their rich knowledge base plays a critical role in their health care, food security, culture, religion, identity, environment, trade and development.[11] There have been a lot of instances where TK was used and patented by third parties without the consent of the knowledge holders. A lot of times these holders were not even accorded benefit or recognition.

Knowledge holders have a right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions.[12] The protection of traditional knowledge is often linked to protection of Biodiversity under the Convention on Biological Diversity, 1992. In the present scenario where the survival of the knowledge is at stake it becomes vital to find a means to provide legal protection for the same. Several proposals have been made, within and outside the IPR regime, to protect such knowledge. But such proposals often fail to set out clearly the rationale for its protection.

The authors in the present article suggest that trade secret is among the best means for protection of TK. It has been further substantiated by putting forth a comparative analysis of protection accorded under various IPRs. This paper further describes the various IP systems and the difficulties in trying to protect TK within the prevailing systems or any combination thereof.

WHAT IS TRADE SECRETS?

The Black’s Law dictionary[13] defines Trade Secret as:

A formula, process, device or other business information that is kept confidential to maintain an advantage over competitors; information including a formula, pattern, compilation, program, device, method, technique or process- that (1) derives independent economic value, actual or potential, from not being generally know or readily ascertainable by other who can obtain economic from its disclosure or use, and (2) is subject of reasonable efforts, under the circumstances, to maintain its secrecy.

Similarly in the Restatement of Unfair Competition,[14] trade secret has been defined as follows:

Any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others

Perusal of the above two definitions reveals that broadly speaking trade secrets can be used to protect any commercially valuable information and moreover unlike patents registration is not a requirement. The only requirement is that it should be secret and sufficient steps have been undertaken to maintain its secrecy.

Article 39.2 of the Agreement on Trade Related Intellectual Property Rights which talks about the IP protection of Trade Secret, reads as follows:

“Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices[15] so long as such information:

a)      is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

b)      has commercial value because it is secret; and

c)      has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.”

Combining the conditions enumerated in the TRIPS and what is being followed as a general trade secret law it can be said that protection under this form of IPR is provided when the following conditions are satisfied:

  • A broad subject matter requirement of information that derives actual or potential economic value because it is not generally known;
  • The trade secret holder took reasonable precautions under the circumstances to keep the information secret; and
  • The defendant obtained the secret by violating an express/implied duty, or through other “improper means.”[16]

It has to be clearly noted that a Trade Secret can only be protected unless it is not disclosed. Another exception to trade secrets is reverse engineering. Some of the cases go on to the extent that regardless of the time, expense, and effort to reverse engineer a product sold, so long as it can be reverse engineered, the trade secret of the technology underlying that product loses its protection that is to say, if a product can theoretically be reverse engineered, then that technology underlying the product is “readily ascertainable.”[17]

In conclusion to this chapter the authors would like to present their view that Trade Secret is a better means of protection of TK mainly because it is devoid of any procedural formality requirements, further such knowledge or information can be protected for a longer period of time, provided requisite steps namely, non-disclosure agreements etc are put into place.

A TRADE SECET APPROACH FOR PROTECTING TRADITIONAL KNOWLEDGE

Here drawing a reference to the already cited requirements of a trade secret it is contended that generally TK qualifies all the requirements mentioned above. TK has great economic value and can be used to developed products and processes of great economic value. It is clear if we look at profits being earned by Shaman Pharmaceuticals and Monsato by exploiting the indigenous techniques, there are billion dollar claims still pending against these two economic giants. Because of this economic worth TK is generally considered as an economic asset.[18]

As for the requirement of secrecy in the TK context courts look to a group’s local customary law and demeanor as evidence of efforts to constrain the diffusion of TK with respect to outsiders.[19]

Trade secrets can be specifically helpful in protection of secret or sacred TK. Customary laws of communities often require that certain knowledge be disclosed only to certain recipients. Courts have awarded remedies for breach of confidence when such customary laws are violated. A group of North American indigenous communities, the Tulalip Tribes, have an international application under the Patent Cooperation Treaty (PCT)[20] on the use of traditional Chinese medicine (TCM) to reduce blood-fat, which claims an invention that combines teaching of TCM with modern medicine to developed Storybase, a digital collection of their TK. Some of the TK may be disclosed for patent review. Community leaders identify other information as for use exclusively within the Tulalip community, according to customary law; the latter is protected as undisclosed information. Also digital repatriation projects that involve the restoration of indigenous knowledge to original communities often need to apply confidentiality carefully to comply with customary law constraints on access to the knowledge.[21]

Publication of sacred-secret materials has been successfully prevented in Foster v. Mountford[22], members of the Pitjantjatjara Council obtained an interlocutory injunction, on the basis of breach of confidence, to restrain the publication of a book entitled “Nomads of the Australian Desert.” The plaintiffs successfully argued that the book contained information that could only have been supplied and exposed in confidence to the anthropologist Dr Mountford, thirty-five years ago. The plaintiffs also successfully argued that the “revelation of the secrets contained in the book to their women, children and uninitiated men may undermine the social and religious stability of their hard-pressed community.”

The law of confidentiality and trade secrets has been successfully used to protect non-disclosed TK, including secret and sacred TK. Courts may award remedies for breach of confidence when customary laws of secrecy are violated.[23] Quite a few communities have come up with the idea of protecting their TK as trade secret; an example may be Ecuador where various indigenous and local groups have participated in an experimental project to treat traditional knowledge as trade secret, in conjunction with the NGO Ecociencia.[24]

The necessary element of secrecy is not lost if the holder of the trade secret reveals the trade secret to another in confidence, and under an implied obligation not to use or disclose it.[25] It is not lost even if it known to the entire community but those outside it do not have much knowledge about it, in case TK is protected under trade secrets there is no requirement of specific right holder[26] and the community is deemed to have collective personality.[27] In response to current pharmaceutical bioprospecting activities and the UN Convention many now conceptualize TK as a novel form of collective intellectual property.[28]

If the above two conditions are satisfied and the knowledge is then acquired either by means of bio-prospecting or other illegal or deceptive means this knowledge can be protected under trade secrets.

Trade secret is recognized as one of the best forms of IPR to protect TK.[29] It protects the owner against disclosure or unauthorized use of knowledge.[30] It is certainly better that other IPR protections especially patents because under trade secrets there is no general requirement of disclosing the information in the public domain after a certain period of time. Coca Cola is one of the best examples of this. Also even in case the trade secret has been sold to the other party under a licensing agreement, the general law that applies is that the licensee cannot exceed the purpose for which the knowledge has been transferred to him. If he does it would be violation of the licensors right under the trade secret.[31]

Even if TK is being used for commercial purpose it is well established that prior informed consent of the people should be taken.[32]

The obligation theory given by Professor Gopalakrishnan states that:

The owners of a new product based on TK while claiming IP protection have the obligation to disclose to the community from where the knowledge was taken and also give evidence as to the PIC.”[33]

Failure to obtain consent is an infringement of IPRs of indigenous people.[34] TK holders should be consulted before their knowledge is used, they should be informed about the consequences of the same, and agreement on appropriate terms should be reached at.[35] To substantiate, absence of prior consent has resulted in rejection of many IP claims.[36]

Although TK can be protected under a lot of IPRs yet trade secret as per the authors is among the best way to protect it. The other means of protection of TK have been dealt with briefly in the next section.

PROTECTING TRADITIONAL KNOWLEDGE WITHIN THE EXISTING IPR REGIME

Patents

In patents a Monopoly is granted for a limited period of time by the state to the inventor for his inventions which have commercial application.[37] Further, basis of providing protection under the Patent Law is to give an incentive to create. Certain criteria’s like novelty, non- obviousness have to be taken care of but meeting this requirement for novelty may not be difficult. The only way a patent can be denied on the basis of novelty is if someone has previously documented the knowledge – even if it has been around for centuries.[38] This is to say that if the traditional knowledge has not left the community, is not documented in a printed format, one can apply for a patent on this knowledge despite prior use.

Further different objections raised to the protection of Traditional Knowledge within the existing patent regime can also be countered in the same manner, for instance one of the basic objection raised is that Traditional knowledge is collectively held, while patent treats inventiveness as an achievement of individuals, to counter this argument authors would like to draw the attention towards the fact that since the late nineteenth century, large corporations have preferred to get collective patents, through their lobbying, patent law began to accommodate the collective notion of inventor ship since the 1880s.[39] This shows that collective ownership is no bar to getting patent. Even otherwise, as per the authors TK could be protected by the holders in collaboration with the companies, one would provide the basic knowledge and the other could make it commercially viable.

According to the authors if proper steps are taken Patent protection could be among genuine protections that can be given to the holders to preserve their knowledge.

Copyright

The idea of protecting TK under copyright relates back to 1960s. However it is folklore and cultural expressions, which consists of TK in art form, which is usually protected under copyright.[40] Copyright vests in the creator of a work, the right of authorship and enables him to prevent the misuse of his work.[41]

Many traditional people have condemned the unauthorized reproduction of their artistic works, handicrafts, designs, dances, and musical and dramatic performances. Not only do outsiders neglect to seek permission to reproduce these items, but they also fail to acknowledge the source of the creativity, and even pass off productions and works as authentic expressions or products when they are not.

Aboriginal artists, to protect their paintings in Australia[42] and Canada[43] have many times sued on the basis of copyright infringement. Moreover, if a dance form or painting is copied with minor changes, there will no copyright protection for the community.

Copyright law has some fundamental limitations in the folklore context. Copyright law requires originality but as TK falls within the public domain[44], it cannot be protected under copyright. The notion of authorship is a problematic concept in many traditional societies, as TK is often held by communities and not a particular person of a community[45], but the basic requirement of copyright law is an identifiable author. Further, copyright law has a time limit, but for indigenous people copyright protection should be permanent.[46] Lastly, copyright protects works and not unfixed expressions. As communities do not have the means of recording their cultural expressions, they cannot acquire copyright protection.

In spite of the above, Courts have at many instances created exceptions in copyright law to afford protection to TK holders.[47]

Trademarks and Geographical Indicators

Trademarks and Geographical Indicators usually provide a link between customers and manufacturers of products. These can be used to protect some forms of indigenous art.

A Trademark or Geographical Indication can be an indicator for a particular tribe or indigenous group, thereby identifying the tribe or group to the consumer. The Lisbon Convention, 1958 recognizes geographical indicators[48] and provides for a system of international registration.[49] The Madrid Convention, 1891 provides for registration of trademarks.[50]

Further, both these recognizing community rights can be used to protect the indigenous knowledge of a tribe or an artist, or both. Geographical indications do not require an element of innovation and are not author specific. It is also immaterial whether the producer is an organized corporation or whether he is a single individual.[51]

However, this rests merely on a theoretical approach and has not been used at any instance for protection of rights of the indigenous.

Protection by a Combination of Existing Intellectual Property Rights

Various authors have suggested comprehensive protection of TK through various theories. Prof. Long suggests the use of moral rights to acknowledge the source of work and to protect the integrity of TK.[52] Prof. Downes advocates the use of moral rights and suggests that this concept should be able to recognize the works of traditional people.[53] Prof. Gopalkrishnan in his obligation theory states obligation theory: “The owner of a new product based on TK while claiming intellectual property protection must have the obligation to disclose to the community from where the knowledge was taken and also give evidence as to the prior informed consent.”[54]

Such sort of mechanism may however provide overlapping rights and might also be subject to the pre conceived notions of the Courts. For instance; folklore may be protected under Geographical Indicators and the community might also have a trademark protection for the same. They might also ask for protection because of violation of their moral rights. Attempt to present it as innovative or remixed version can be contented to be a violation of copyright or patents.

What should rather be done is to ask the infringers to compensate the TK holders in the form of profits[55], benefit sharing[56] or making them joint owners of the IP rights created from their knowledge and by restraining the infringers to use the TK without prior informed consent of the indigenous. This will also strengthen the bargaining power of developing countries.

CONCLUSION

The recent instances such as attempt to get the healing properties of Turmeric patented or Neem or Basmati patented were condemned by the communities in general. These cases were eye openers and sudden demands for getting into place a proper system for protection of TK were being raised. However, the results were not fruitful and no such internationally recognized system has come into existence till date. The ‘sui generis’ system has also not been very effective which in turn diverted people towards the conventional IPR regime to seek a protection for TK.

TK is an attribute essential to any community, as it is protected; developed and promoted by them since time immemorial and can hence it can in no circumstance be taken away from its custodians. Any such effort is not only legally but also morally wrong. Although other forms of Intellectual Property Rights have been effective in protection of TK, trade secret is the most sought one. There are ample reasons justifying such an assertion, the foremost among them being that it is devoid of hassles which one has to face while looking for protection under patents and other IP rights. Unlike most forms of IPRs trade secret can be granted even to a community. In fact in case of TK protection the entire community is considered as a single unit. Also there is no need of specific author, it can be applied to any form of information till the time it is secret, and furthermore there is no requirement of novelty or innovation. It is also not time bound like other IPRs.

Trade secret has been found to be particularly effective in protection of secret and sacred TK. A very good example is that of the Ayahuasca Plant and the Pitjantjatjara community. Both of them have been successful in warding off patent claims.

The three basic requirements of protection under trade secrets is that the information has some commercial value, it is secret and all reasonable steps have been take to maintain its secrecy. TK satisfies all these three conditions and hence even the WIPO recognizes it as an economic asset. In the case of TK the entire community is treated as a unit and if the information is restricted to the members of the community, it qualifies to be a trade secret. Further, it is not necessary that the community should consist of a small group of people; it may be any number of people, a whole nation too.

Also the doctrine of prior informed consent demands that in case indigenous knowledge is being used, the consent of people should be taken before hand. Also they should be given a share of the benefits accrued.

Thus, the authors affirm their stance that trade secrets is the best means to protect Traditional Knowledge of the Indigenous people.

 

 VI.            INDEX OF AUHTORITIES

 

BOOKS AND DICTIONARIES

  • 9th edition Black’s Law Dictionary Bryan A. Garner, editor, (West Group, 2009)………………………………………………………………………………………3
  • Robert P. Merges, Peter S. Menell and Mark A. Lemley, Intellectual Property in the New Technological Age (New Delhi: Aspen Law & Business Publishers, 2010), 36……4
  • The Concept of Intellectual Property. World Intellectual Propety Organization. Accessed August 11, 2013, http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch1.pdf…………………………………………………………………………………………..5

 

CASES

  • Bulun Bulun v. Nejlam Investments and Ors., Unreported, Federal Court of Australia, Darwin (NTG 3 of 1989) ………………………………………………………..………..2
  • Carson Products v. Califano, 4 F.2d 453……………………..……………………….….4
  • Harjo v. Pro-Football, Inc., 30 U.S.P.Q.2d (BNA) 1828 (TTAB 1994) …………………2
  • Havasupai Tribe v Arizona State University, Case No. CV2004-0146 (Ariz Sup Ct, 2004)………………………………………………………………………………………2
  • Midland-Ross Corp. v. Sunbeam Equipment Corp, 316 F.Supp. 171 (1970)………..…….4
  • Pro-Football, Inc. v. Harjo, 565 F.3d 880 (D.C. Cir 2009)…………………………..…..2
  • Tilousi v. Arizona State University, Case No CV2004-0115 (Ariz Sup Ct, 2004)…….….2
  • Yumbulul v. Reserve Bank of Australia, 21 I.P.R. 481 (1991)……………………………10
  • Foster v. Mountford (1976) 29 FLR 233 (Austl.)……………………………….………2,5
  • Kewanee Oil Co. v. Bicron Corp., 416 US 470…………………………………………….6
  • M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 763 (10th Cir. 2009)………………7
  • Wockhardt Limited v. Hetero Drugs Limited & Ors., 2006 (32) PTC 473…………………………………………………………………………………………..7

ONLINE ARTICLE

  • “Hoodia Cactus: Western Drug Industry exploits Developing Countries,” SOS Arsenic.net, accessed September 3, 2013, http://www.sos-arsenic.net/english/homegarden/hoodia.html…………………………………………………………….1
  • “Intellectual Property and Traditional Knowledge,” World Intellectual Property Organization, accessed September 1, 2013, http://www.wipo.int/export/sites/www/freepublications/en/tk/920/wipo_ pub_920.pdf. …………………………………………………………………………………………………………………………….1
  • “Protecting India’s Traditional Knowledge”, World Intellectual Property Organization, accessed September 5, 2013, http://www.wipo.int/wipo_magazine/en/2011/03/article_0002.html…………………………….2
  •  “Traditional Knowledge and Intellectual Property,” World Intellectual Property Organization,  accessed September 1, 2013, http://www.wipo.int/pressroom/en/briefs/tk_ip.html…………………………………………………..1
  • Arogyapacha (Jeevani) case in R. V. Anuradha, “Sharing with the Kanis: A case study from Kerela, India”, Foundation for International Environmental Law and Development (2013): 5, accessed on August 5, 2013, http://www.cbd.int/doc/case-studies/abs/cs-abs-kanis.pdf………………………………………………………………………………………………………………2
  • Christine Haight Farley, “Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer, 30 CONN. L. REV. (1997): 1, 4…………………………………9
  • Correa, Carlos M. “Traditional Knowledge and Intellectual Property,” Quaker United Nations (2001): 4…………………………………………………………………………..1
  • David Downes, “How Intellectual Property Could Be a Tool to Protect Traditional Knowledge,” 25 COLUM. J. ENVTL. L. (2000): 254-7…………………………………..8
  • Doris Estelle Long, “The Impact of Foreign Investment on Indigenous Culture: An Intellectual Property Perspective,” 23 N.C. J. INT’L L. & COM. REG. (1998): 229…………………………………………………………,……………………………10
    • Dr. John Mugabe, “Intellectual Property Protection And Traditional Knowledge: An Exploration In International Policy Discourse,” An Exploration in International Policy Discourse (1998): 18, accessed September 1, 2013, http://193.5.93.81/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_4.pdf…………………………………………………………………………………………………………………..1
    • Graham Dutfield, “Trips-Related Aspects of Traditional Knowledge,” 33 Western Reserve Journal of International Law (2001): 230…………………………………………8
    • Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Report by the WIPO Secretariat, World Intellectual Property Organization Doc. WIPO/GRTKF/IC/25/6 at 7 (July 15-24, 2013)…………………………………………………………………………….…….1
    • Michael Blankley, “Milpurrurru & Ors v. Indofarm &Ors: Protecting Expressions of Aboriginal Folklore under Copyright Law,” E LAW, VOL. 2, NO. 1 (1995)………………………………………………………………………………………9
      • Paul Kuruk, “Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights in Africa and the United States,” 48 AM. U. L. REV. (1999): 769, 815…………………………………………………………………………………………9
      • Science and Traditional Knowledge: Report from the ICSU Study Group on Science and Traditional Knowledge (Hungary: International Council for Science, 2002), 3-5, accessed September 1, 2013, http://www.icsu.org/publications/reports-and-reviews/science-traditional-knowledge/Science-traditional-knowledge.pdf. …………………………………………1
      • Shaman Pharmaceuticals Inc. and Peru Tribe case in Srividhya Ragavan, “Protection of Traditional Knowledge”, Hamilton Law Journal (2010): 23, accessed on September 4, 2013,http://hamilton.ou.edu/faculty/facfiles/protection_of_traditional_knowledge.pdf…..2
      • Stephen A. Hansen and Justin W. VanFleet, “Traditional Knowledge and Intellectual Property: A Handbook on Issues and Options for Traditional Knowledge Holders in Protecting their Intellectual Property and Maintaining Biological Diversity,” American Association for the Advancement of Science (AAAS) Science and Human Rights Program (2003): 20……………………………………………………………………….…………8
        • Ujjal Kumar Sarma and Indrani Barpujari, “Revisiting the Debate on Intellectual Property Rights and Traditional Knowledge of Biodiversity: Accommodating Local Realities and Perspectives Revisiting the Debate on Intellectual Property Right,” The International Indigenous Policy Journal 3 (2012): 1-5, accessed September 1, 2013, http://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1090&context=iipj……………………………..1
  • Gopalakrishnan, N. S. “TRIPS And Protection of Traditional Knowledge of Genetic Resources: New Challenges to the Patents System.” The European Intellectual Property Review (2005): 11-18. Accessed August 8, 2013. http://uk.westlaw.com/search/default…7
  • Taubman, A. “Is there a right of collective personality?” E.I.P.R. 485 (2006): 485..…….6
  • Traditional Knowledge Digital Library. “Biopiracy of Traditional Knowledge.” accessed September 6, 2013. http://www.tkdl.res.in/tkdl/langdefault/common/Biopiracy.asp……………………………………1
  • Vandana Shiva, “The turmeric patent is just the first step in stopping biopiracy,” Third World Network, accessed September 6, 2013, http://www.twnside.org.sg/title/tur-cn.htm…………………………………………………………………………………………………………………..1
  • Vardharajan, Deepa. “A Trade Secret Approach to Protecting Traditional Knowledge.” Yale Law Journal 36 (2011): 402. Accessed August, 12, 2013. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1892359……………………………………..5
  • Varma S. “Traditional Knowledge: A Holder’s Practical Perspective.” (paper presented at the WIPO Round Table on Intellectual Property and Traditional Knowledge, Geneva, November 1-2, 1999)………………………………………………………………………6

 

OTHER AUTHORITIES

  • Donald E. Bierer, Thomas J. Carlson, and Steven R. King, “Shaman Pharmaceuticals: Integrating Indigenous Knowledge, Tropical Medicinal Plants, Medicine, Modern Science and Reciprocity into a Novel Drug Discovery Approach,” accessed September 4, 2013,http://www.netsci.org/science/special/feature11.html……………………………………….11
  • Kamal Puri, “Preservation and Conservation of Expressions of Folklore,Copyright Bull. (1998) 5, 6, 10-12…………………………………………………………………………9
  • Tom Greaves, “Tribal Rights, In Valuing Local Knowledge: Indigenous Peoples And Intellectual Property Rights” (1996): 25, 31………………………………………………9
  • Greene, Shane “Intellectual Property, Resources or Territory? Reframing the Debate over Indigenous Rights, Traditional Knowledge, and Pharmaceutical Bioprospection.” Current Anthopology 45 (2004): 13-25. Accessed July 17, 2013. http://humanrights.uchicago.edu/Baro/greene.pdf………………………………………………………6
  • Hoodia Cactus: Western Drug Industry exploits Developing Countries, http://www.sos-arsenic.net/english/homegarden/hoodia.html…………………………………………………………….7
  • Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (Geneva: World Intellectual Property Organization, 2012). Accessed July 28, 2013. http://www.wipo.int/export/sites/www/Freepublications/en/tk/ 933/ wipo_ pub_933.pdf…………………………………………………………………..7
  • Intellectual Proterty and Traditional Handicrafts (The Hague: World Intellectual Property Organization, 2005), accessed July 16, 2013, http://www.wipo.int/export/sites/www/tk/en/resources/pdf/tk_brief5.pdf……………………..7
  • Karin Timmermans. “TRIPS, CBD and Traditional Medicines: Concepts and Questions.” Accessed on September 4, 2013. http://apps.who.int/medicinedocs/es/d/Jh2996e/ 12.2.html……………………………………………………………………………………6

 

STATUES

  • Agreement on Trade Related Aspects of Intellectual Property……………………….…..5
  • Berne Convention for the Protection of Literary and Artistic Works, Paris Text, 1971……………………………………………………………………………………………………………..9
    • Convention of Biological Diversity, 1992…………………………………………………1
    • Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, 2013……………………………………………………………………..………………..11
    • Lisbon Agreement for the Protection of Geographical Indicators and the Appellations of Origin and their International Registration, 1958………………………………………………………………………………………10
    • Madrid Agreement Concerning the International Registration of Marks,1891………………………………………………………………………………10
    • Paris Convention……………………………………………………………………..……3
    • Restatement of the Law (Third) UNFAIR COMPETITION…………………….………..3
    • United Nations Declaration on the Rights of Indigenous Peoples, 2007……………………………………………………………………………….……….2
  • Conference of Parties, 2000……………………………………………………………….7
  • Nagoya Protocol, 2010………………………………………………….…………………7

Author:
Shriya Jain.

Richa Sharma

Shweta Adhikari

GNLU, Gandhinagar



[1] Vandana Shiva, “The turmeric patent is just the first step in stopping biopiracy,” Third World Network, accessed September 6, 2013, http://www.twnside.org.sg/title/tur-cn.htm.

[2] Traditional Knowledge Digital Library. “Biopiracy of Traditional Knowledge.” accessed September 6, 2013. http://www.tkdl.res.in/tkdl/langdefault/common/Biopiracy.asp.

[3]“Hoodia Cactus: Western Drug Industry exploits Developing Countries,” SOS Arsenic.net, accessed September 3, 2013, http://www.sos-arsenic.net/english/homegarden/hoodia.html

[4] “Intellectual Property and Traditional Knowledge,” World Intellectual Property Organization, accessed September 1, 2013, http://www.wipo.int/export/sites/www/freepublications/en/tk/920/wipo_ pub_920.pdf.

[5] “Traditional Knowledge and Intellectual Property,” World Intellectual Property Organization,  accessed September 1, 2013, http://www.wipo.int/pressroom/en/briefs/tk_ip.html.

[6] Dr. John Mugabe, “Intellectual Property Protection And Traditional Knowledge: An Exploration In International Policy Discourse,” An Exploration in International Policy Discourse (1998): 18, accessed August 10, 2013, http://193.5.93.81/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_4.pdf.

[7] Ujjal Kumar Sarma and Indrani Barpujari, “Revisiting the Debate on Intellectual Property Rights and Traditional Knowledge of Biodiversity: Accommodating Local Realities and Perspectives Revisiting the Debate on Intellectual Property Right,” The International Indigenous Policy Journal 3 (2012): 1-5, accessed July 30, 2013, http://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1090&context=iipj.

[8] Art 8(j), Convention of Biological Diversity, 1992; Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Report by the WIPO Secretariat, World Intellectual Property Organization Doc. WIPO/GRTKF/IC/25/6 at 7 (July 15-24, 2013); Science and Traditional Knowledge: Report from the ICSU Study Group on Science and Traditional Knowledge (Hungary: International Council for Science, 2002), 3-5, accessed July 23, 2013, http://www.icsu.org/publications/reports-and-reviews/science-traditional-knowledge/Science-traditional-knowledge.pdf.

[9] Correa, Carlos M. “Traditional Knowledge and Intellectual Property,” Quaker United Nations (2001): 4.

[10] Foster v. Mountford, (1976) 29 FLR 233, Tilousi v. Arizona State University, Case No CV2004-0115 (Ariz Sup Ct, 2004); Havasupai Tribe v Arizona State University, Case No. CV2004-0146 (Ariz Sup Ct, 2004); Bulun Bulun v. Nejlam Investments and Ors., Unreported, Federal Court of Australia, Darwin (NTG 3 of 1989); Shaman Pharmaceuticals Inc. and Peru Tribe case in Srividhya Ragavan, “Protection of Traditional Knowledge”, Hamilton Law Journal (2010): 23, accessed on July 28, 2013, http://hamilton.ou.edu/faculty/facfiles/protection_of_traditional_knowledge.pdf; Arogyapacha (Jeevani) case in R. V. Anuradha, “Sharing with the Kanis: A case study from Kerela, India”, Foundation for International Environmental Law and Development (2013): 5, accessed on August 5, 2013, http://www.cbd.int/doc/case-studies/abs/cs-abs-kanis.pdf; Harjo v. Pro-Football, Inc., 30 U.S.P.Q.2d (BNA) 1828 (TTAB 1994) and Pro-Football, Inc. v. Harjo, 565 F.3d 880 (D.C. Cir 2009).

[11]“Protecting India’s Traditional Knowledge”, World Intellectual Property Organization, accessed September 5, 2013, http://www.wipo.int/wipo_magazine/en/2011/03/article_0002.html.

[12] Art 31, United Nations Declaration on the Rights of Indigenous Peoples, 2007

[13] 9th edition Black’s Law Dictionary Bryan A. Garner, editor, (West Group, 2009)

[14] § 39 Restatement of the Law (Third) UNFAIR COMPETITION

[15] Art 10 bis, Paris Convention

[16] Art 39.2, Agreement on Trade Related Aspects of Intellectual Property Rights; Robert P. Merges, Peter S. Menell and Mark A. Lemley, Intellectual Property in the New Technological Age (New Delhi: Aspen Law & Business Publishers, 2010), 36-37.

[17] Midland-Ross Corp. v. Sunbeam Equipment Corp, 316 F.Supp. 171 (1970); Carson Products v. Califano, 4 F.2d 453

[18] Intellectual Proterty and Traditional Handicrafts (The Hague: World Intellectual Property Organization, 2005), accessed July 16, 2013, http://www.wipo.int/export/sites/www/tk/en/resources/pdf/tk_brief5.pdf.

[19] Deepa Vardharajan, “A Trade Secret Approach to Protecting Traditional Knowledge,” Yale Law Journal 36 (2011): 402, accessed August, 12, 2013, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1892359.

[20] 2004/052382 A 1

[21] The Concept of Intellectual Property (World Intellectual Propety Organization), 3, accessed August 11, 2013, http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch1.pdf

[22] Foster, Supran. 10

[23] Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (Geneva: World Intellectual Property Organization, 2012), accessed September 8, 2013, http://www.wipo.int/export/sites/www/Freepublications/en/tk/933/wipo_pub_933.pdf.

[24] Karin Timmermans, “TRIPS, CBD and Traditional Medicines:

Concepts and Qquestions,” accessed on September 14, 2013, http://apps.who.int/medicinedocs/es/d/Jh2996e/ 12.2.html.

[25] Kewanee Oil Co. v. Bicron Corp., 416 US 470.

[26] Shri Sundaram Varma, “Traditional Knowledge: A Holder’s Practical Perspective,” ( paper presented at the WIPO Round Table on Intellectual Property and Traditional Knowledge, Geneva, November 1-2, 1999).

[27] A. Taubman, “Is there a right of collective personality?,” E.I.P.R. 485 (2006): 485; Raghvan, Supra n. 8, p. 25.

[28] Shane Greene, “Intellectual Property, Resources or Territory? Reframing the Debate over Indigenous Rights, Traditional Knowledge, and Pharmaceutical Bioprospection,” Current Anthopology 45 (2004): 13-25, accessed July 17, 2013, http://humanrights.uchicago.edu/Baro/greene.pdf

[29] Intellectual Property and Traditional Knowledge, Supra n. 17; Supra n. 19, p. 40; Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (Geneva: World Intellectual Property Organization, 2012), accessed July 28, 2013,

http://www.wipo.int/export/sites/www/Freepublications/en/tk/933/wipo_pub_933.pdf.

[30] Kewanee, Supran. 25; Foster, Supran. 10

[31] M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 763 (10th Cir. 2009).

[32] Art 7, Nagoya Protocol, 2010; Conference of Parties, 2000, decision V/16.

[33]Dr. N. S. Gopalakrishnan, “TRIPS And Protection of Traditional Knowledge of Genetic Resources: New Challenges ToThe Patents System” The European Intellectual Property Review (2005): 11-18, accessed August 8, 2013, http://uk.westlaw.com/search/default.

[34] Wockhardt Limited v. Hetero Drugs Limited & Ors., 2006 (32) PTC 473; Raghvan, Supra n. 8, p. 26

[35]Supran. 19; Supran. 27

[36] “Hoodia Cactus: Western Drug Industry exploits Developing Countries,” SOS Arsenic.net, accessed July 23, 2013, http://www.sos-arsenic.net/english/homegarden/hoodia.html; C. Juma, The Gene Hunters: Biotechnology and the Scramble for Seeds (London and Princeton: Zed Books and Princeton University Press, 1989), 30.

[37] David Downes, “How Intellectual Property Could Be a Tool to Protect Traditional Knowledge,” 25 COLUM. J. ENVTL. L. (2000): 254-7.

[38] Stephen A. Hansen and Justin W. VanFleet, “Traditional Knowledge and Intellectual Property: A Handbook on Issues and Options for Traditional Knowledge Holders in Protecting their Intellectual Property and Maintaining Biological Diversity,” American Association for the Advancement of Science (AAAS) Science and Human Rights Program (2003): 20

[39] Graham Dutfield, “Trips-Related Aspects of Traditional Knowledge,” 33 Western Reserve Journal of International Law (2001): 230

[40] Paul Kuruk, “Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights in Africa and the United States,” 48 AM. U. L. REV. (1999): 769, 815.

[41] Berne Convention for the Protection of Literary and Artistic Works, Paris Text, 1971.

[42] Christine Haight Farley, “Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer, 30 CONN. L. REV. (1997): 1, 4-7; Kamal Puri, “Preservation and Conservation of Expressions of Folklore,Copyright Bull. (1998) 5, 6, 10-12.

[43] Tom Greaves, “Tribal Rights, In Valuing Local Knowledge: Indigenous Peoples And Intellectual Property Rights” (1996): 25, 31.

[44] Supran. 39, p. 233.

[45] Michael Blankley, “Milpurrurru & Ors v. Indofarm &Ors: Protecting Expressions of Aboriginal

Folklore Under Copyright Law,” E LAW, VOL. 2, NO. 1 (1995).

[46] Supran. 44, p. 257.

[47] Bulun, Supran. 10; Yumbulul v. Reserve Bank of Australia, 21 I.P.R. 481 (1991).

[48] Art 2, Lisbon Agreement for the Protection of Geographical Indicators and the Appellations of Origin and their

International Registration, October 31, 1958 as amended in September, 1979.

[49] Art 5, Lisbon Agreement for the Protection of Geographical Indicators and the Appellations of Origin and their

International Registration, October 31, 1958 as amended in September, 1979.

[50] Madrid Agreement Concerning the International Registration of Marks, April 14, 1891 as amended in

1979.

[51] Supran. 37, p. 253, 258-59.

[52] Doris Estelle Long, “The Impact of Foreign Investment on Indigenous Culture: An Intellectual Property

Perspective,” 23 N.C. J. INT’L L. & COM. REG. (1998): 229.

[53] Supran. 51

[54] Supran. 33

[55] Donald E. Bierer, Thomas J. Carlson, and Steven R. King, “Shaman Pharmaceuticals: Integrating

Indigenous Knowledge, Tropical Medicinal Plants, Medicine, Modern Science and Reciprocity into a

Novel Drug Discovery Approach,” accessed September 4, 2013, http://www.netsci.org/science/special/feature11.html.

[56] Art 16, Convention on Biological Diversity, 1992; Art 5, Nagoya Protocol, 2010; ; Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Report by the WIPO Secretariat, World Intellectual Property Organization Doc. WIPO/GRTKF/IC/25/6 at 7 (July 15-24, 2013).

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