An Interface Between Traditional Knowledge and Intellectual Property Rights (IPR): An Indian Perspective

An Interface Between Traditional Knowledge and Intellectual Property Rights (IPR): An Indian Perspective

Nisha Dhanaraj (Amity Law School Delhi, India) and Mamta Sharma (Gautam Buddha University, India)
Copyright: © 2017 |Pages: 13
DOI: 10.4018/978-1-5225-2414-4.ch009
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Abstract

Traditional knowledge and Intellectual Property Rights (IPR), both are supplementary and complementary to each other. The aim of traditional knowledge is to promote community interest and protect indigenous rights against bio-piracy and bio-prospecting. On the other hand, IPR guarantees monopoly of a product or service to an organization and empowers it to profit from it. This article studies the present Indian IPR system to understand whether it is capable to handle traditional knowledge or should it be amended to incorporate a separate law to protect traditional knowledge. Besides, a large-scale commercialization and unauthorized use of traditional knowledge has been observed, which gives rise to the need to screen and protect it. This article also takes into consideration the Bonn guidelines and Indian Biodiversity Act 2002 and the issues related to traditional knowledge, and finds that the current issues cannot be resolved by the existing IPR regime.
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Research Methodology

The methodology adopted for this paper is a combination of descriptive research and doctrinal research. The descriptive research was taken as a tool to access the present situation of traditional knowledge existing in India. Doctrinal research is adopted to achieve the objectives of the research, i.e., to access the relationship between IPR and TK, to provide an overview of the debate on the protection of traditional knowledge at the international level; to study traditional knowledge in terms of property rights and sovereignty rights; to identify ways by which TK can be effectively protected both nationally and internationally; and to discover the relationship between traditional knowledge and Intellectual property laws in India. The study is primarily based on international conventions, treaties, national laws, policy papers and national instruments. Relevant decisions of national, regional and international courts have also been considered. Secondary sources such as journal and newspaper articles, books and web resources on the practice and policies related to protection of TK and Intellectual Property Rights have also been tapped to supplement the study.

The study also takes into consideration the case law method for bio-piracy and protection of traditional knowledge of various countries, communities and tribes to analyze the jurisdictional aspect and legality of the issues between developed and developing countries. It also takes into consideration the regimes of IPR pertaining to the protection of TK in various countries to recommend a model law, which is suitable to protect TK in India.

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