The WIPO report uses the expression “relationship between the knowledge and a traditional or Indigenous community or other group of persons identifying with a traditional culture, such a sense to preserve the knowledge or a sense that misappropriation or demeaning usage would be harmful or offensive. It derives its explanations of environmental phenomena from cumulative, collective and often spiritual experiences. It is learned through observation and hands-on experience;
It is based on the understanding that the elements of matter have a life force. (All parts of the natural world are therefore infused with spirit); It does not view human life as superior to other animate and inanimate elements: all life-forms have kinship and are interdependent; It is holistic (whereas western science is “reductionist”); It is intuitive in its mode of thinking (whereas western science is analytical); It is mainly qualitative (whereas western science is mainly quantitative); It is based on data generated by resource users.
(As such it is more inclusive than western science, which is collected by a specialized group of researchers who tend to be more selective and deliberate in the accumulation of facts)” With all its different components and cultural base traditional knowledge has posed an enormous challenge for the implementation of TRIPS. This is due to the fact many a number of expression of folklore and other forms of traditional knowledge could not be brought under the grant of protections because “they are too old and are in the public domain” .
The expectation of the provision of exclusive rights for longer periods of time undermines the principle of awarding the intellectual property for a limited time. This will also have the effect of putting the intellectual property to the use of the general public. The other challenge is that the author or inventor of the traditional knowledge is unidentifiable and hence it is difficult to establish the ‘rights holder’ who can be considered as the rightful owner of such rights. Actually these kinds traditional knowledge might have been created by several people over a period of time.
Apart from the inherent problems stated above there are quite a lot of materials in the form of traditional knowledge which do not have the level of quality that they need any protection at all. All the other forms of traditional knowledge will be governed by the protection of copyrights or patents. A vehement argument in the matter of traditional knowledge is that such protection only covers the intellectual property designed for Western Countries and the protections do not cover those of the developing nations. There have been growing complaints especially in the developing world that innovation and
Creativity in the form of traditional knowledge, folklore and genetic resources are not being recognized for international legal protection. There are arguments that the concept and mechanisms of intellectual property can be necessarily applied to give to ensure that appropriate legal protection to the rights on intellectual property. There is also another contention that there is the need for the creation of a ‘suigeneris’ system for such IP issues. The TRIPS Agreement does not contain elaborate provisions in respect of ‘traditional knowledge, genetic resources, folklore and biodiversity’.
On the objectives of the Agreement Article 7 reads as below: “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, o the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. ” Article 8 deals with the preventive measures against the possible abuse of intellectual property rights or restrictive trade practices.
While the provisions of Articles 7 and 8 are broad enough to provide a safeguard subject to the interpretation of the member states they cannot be regarded as offering any sort of protection to genetic resources. The same analogy can be applied to Article 27-2. While the provisions of this Article may have the effect of preventing the unfair exploitation of genetic resources the provisions do not grant any legal protection to genetic resources. Similarly Article 67 provides for the technical cooperation from the developed countries to the developing nations and assistance in the form of prevention against abuse.
The TRIPS provisions are thus only remedial or preventive in nature but they do not provide the necessary rights on genetic resources for claiming any protection. Access to genetic resources for food and agriculture is another important development with regard to the claims of the developing countries for a proper treatment and protection. The importance of the issue of access is emphasized through the revision of the International Undertaking on Plant Genetic Resources under the Commission on Genetic Resources for Food and Agriculture through a non-binding agreement.
Article 11 of the agreement stipulates the conditions relating to access to plant genetic resources for food and agriculture. Article 11 stipulates that “Parties recognize the sovereign rights of States over their plant genetic resources for food and agriculture, including the authority to determine access to those resources with the national governments and is subject to national legislation, and in the exercise of sovereign rights, Parties shall facilitate access without imposing restrictions that run counter to the Convention on Biological Diversity and this Undertaking. ”