By Shweta Adhikari
World Intellectual Property Organization (WIPO) is a pioneer organization dealing with intellectual property as a whole. The recently published report of the Forty-Third Session of WIPOs general assembly can be seen as a welcome change. The report reiterates the objectives as agreed in the Fortieth Session which include expediting the process of formulating text of an international legal instrument which will ensure the effective protection of Genetic Resources, Traditional Knowledge and Traditional Cultural Expression. It also mentions the need to provide for a proper access and benefit sharing system (ABS). ABS ensures that proper remuneration is provided to the local community for the use of their knowledge.
Here it is to be noticed that there has been a shift in attitude since the first Conference of Parties meeting in 2001 where traditional knowledge protection was recognized only at the national level.
It goes without saying that there is an urgent need of an international system for protection of this knowledge, if it is not provided adequate legal protection a tough situation is bound to arise whereby there is every chance that it will be lost forever.
As of now no concrete IPR protection has been provided to traditional knowledge. Convention on Biological Diversity talks of traditional knowledge but this is limited to only genetic material. It also provides for sui generis system of protection.
A sui generis system is essentially different from IPR protection and can be said to be a tailor made system designed to satisfy needs of a particular region. However these systems do not have much recognition in the international arena and are less effective as compared to the IP protection. Protections at the national level will not be of much help as claims arising out of them cannot be enforced at a global level. Also, the laws of a country might differ from that of the other country hence making it even more difficult to protect such knowledge at an international level.
Here it will be relevant to cite the example of Traditional Knowledge Digital Library (TKDL). Although a preliminary scrutiny may create an illusion that a lot of claims have been rejected because of TKDL but a keen perusal of it reveals that most of these claims had either been withdrawn or rejected due to some other cause.
As for the ABS, if adequate compensation is not provided to indigenous people there would be no incentive for them to further develop their knowledge. Moreover as per the Lockean theory one is entitled to get the benefit of his labor. It is the indigenous people who are the collective owners of this knowledge, if they are not given benefit it would not only be legally but also morally wrong. There has been a volley of cases where researchers have appropriated huge amounts by exploiting the knowledge of indigenous people without even acknowledging their contribution.
Concludingly it can be said that if instances like Turmeric and Basmati are to be avoided a proper international system recognizing traditional knowledge as a form of property should be put in place.