Intellectual property: Protecting traditional knowledge from Western plunder

A new UN pact could help developing countries stop the developed nations from co-opting and patenting their products.

Published : May 15, 2024 15:13 IST - 5 MINS READ

Ethiopian farmers have cultivated teff for thousands of years. But a Dutch company holds a patent on processed teff flour.

Ethiopian farmers have cultivated teff for thousands of years. But a Dutch company holds a patent on processed teff flour. | Photo Credit: picture-alliance/blickwinkel/G. Fischer

For more than 25 years, developing countries and indigenous peoples have been pushing for intellectual property (IP) laws that better protect their local flora, fauna, traditional knowledge, and culture from exploitation by outside parties. In recent years, calls have grown louder for greater accountability from companies that use foreign countries’ or indigenous cultures’ traditional knowledge or cultural heritage.

Fashion brands have been called out for using traditional patterns in their clothing lines, and pharmaceutical companies have come under scrutiny for turning a medicinal plant into a drug they can sell. Critics of the practice call it cultural appropriation or, when dealing with the use of genetic resources like plants, biopiracy. “[This knowledge] doesn’t really fit into the framework of the existing IP system, such as the patent system or the copyright system,” Wend Wendland, director of the traditional knowledge division at World Intellectual Property Organisation (WIPO), told DW.

But the discussion about legal protections in this realm took off much earlier, with the establishment of the World Trade Organization (WTO) in 1995. This created a new set of international standards for intellectual property rights for all WTO member states to implement.

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In India, for example, the transition to this new system unearthed an unsettling discovery: Other countries, particularly industrialised ones like the US, were filing numerous patents on products that had been part of traditional practices in India for hundreds of years. “I mean aspects such as turmeric for wound healing, basmati rice for its fungicide activity, and so on,” Viswajanani Sattigeri, the head of India’s Traditional Knowledge Digital Library (TKDL) unit, told DW.

Stopping the loss of heritage and knowledge

“The problem? When a patent for traditional knowledge is granted to a third party, that party formally becomes the owner of such knowledge,” said Sattigeri. “The nation loses its heritage and its own traditional knowledge.” But now, that could be changing. In May 2024, WIPO’s 193 member states will meet and potentially ratify the first step of a legal instrument aimed at creating greater protections for these assets.

WIPO has broken them down into three areas seen as vulnerable under the current system: genetic resources, traditional knowledge, and traditional cultural expression. Genetic resources are biological materials like plants and animals that contain genetic information, while traditional knowledge encompasses generational wisdom within communities, which is usually passed down orally. This could include knowledge about biodiversity, food, agriculture, healthcare, and more. Traditional cultural expression includes artistic creations reflecting a group’s heritage and identity, like music, art, and design.

“It changes the classic understanding of intellectual property,” said Dornis. “It might break the system that [says that] many things are unprotected.”

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Under current IP law, legal protections for original creations tend to fall away after a certain period of time. But many traditional practices have evolved and been passed down for hundreds of years or longer, meaning they would not be protected anymore. There is also not one inventor to give credit to—the knowledge is held communally, and it can be difficult to trace it back to a specific community or region.

It is easier for a single third party to come in, gain knowledge from the community, and return to their own country, where they can apply for a patent there based on what they have learned. Dornis said that this makes it possible for developed countries, for the most part, to say “we’ll take that and we’re not going to reimburse you for it”. He added: “But if you are in need of a pharmaceutical invention and a medical product that is based on their genetic resource or traditional knowledge, you have to pay for the medicine, because it’s patent-protected.”

Disclosure and compensation

The May 2024 meeting will be focussed exclusively on genetic resources and efforts to adopt a legal instrument that will require patent applicants in WIPO member states to disclose where they sourced the plant or associated knowledge they want to use, and whether they were given permission to use it. If that treaty passes, the focus will turn to creating clearer definitions for what encompasses traditional knowledge and cultural expression.

This draft legislation law also seeks to create databases like the one Sattigeri runs, where such information can be tracked. India’s TKDL, which was the first of its kind globally, has spent decades transcribing and translating information from traditional Indian texts—many written in Sanskrit—into its database, creating a record of the country’s traditional knowledge for patent officers to consult.

“We targeted the Indian systems of medicine, namely Ayurveda and Unani,” she said. “Also, what kind of yoga practices there are. And a wealth of information related to health, including animal and plant health, and also cosmetics.”

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When reviewing a patent application, patent officers can consult such databases to see if anything similar already exists. The databases will also help countries keep track of patents that draw on knowledge or resources mined within their borders.

Countries rich in biodiversity have been asking for such disclosure requirements and databases for decades. This new agreement, if passed, will not create new compensation requirements. However, existing environmental law already requires any financial benefits made from an invention to be shared with the country of origin. So stronger disclosure laws could lead to greater financial compensation for these countries.

WIPO’s Wendland said many developing countries see the regulation as “a significant step forward”. Wendland explained, “That’s why it’s important for them. It is very technical, but it has a long history and it has a lot of symbolism for many countries, especially those in the developing world.”

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