Of Traditional Knowledge and TRIPS

Traditional Knowledge Defined

Traditional knowledge means the innovations, know-how and techniques held by local communities and which in most cases in undocumented. These techniques and innovations   range from traditional treatment methods and well as rural knowledge to traditional farming methods which are mostly adopted for local agricultural needs.

TRIPS Framework on Traditional Knowledge

Intellectual property at Multilateral level is governed by the Agreement on Trade Related Aspects of Intellectual Property Rights popularly known as TRIPS. Article 27 of the TRIPs Agreement expects member countries to make patents available for innovative products or processes in all fields of technology, provided that the minimum criteria of novelty, inventiveness and industrial applicability are satisfied. Further, Article 27.3(b) requires protection for plant varieties to be achieved either e under a patent system, or through other sui generis protection. Article 27 of the Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS its preamble states  the members desired  to reduce  distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade.

 Patents are a tool used in the developed economies to   reward innovative endeavours with a profitable temporary monopoly, and the patent grant serves as a powerful incentive to undertake research and to commercialize its results. Since the TRIPs Agreement allows members to grant patents, plants and other life forms, a strong incentive exists for research to be conducted in biodiversity-rich areas of the world, particularly since plant-based therapies, domestic seeds and their associated research and inventive effort have emerged as an important element of the success of modern medical/agricultural biotechnology.

It is here that the incentive effects of patent rights connect most directly with traditional knowledge, which includes medicinal/agricultural practices based on knowledge of the natural environment—especially plants—to treat members of the community, usually as part of survival, common uses, rituals and sacred practices.

Kenya’s Legal Framework on Traditional Knowledge

Kenya’s Industrial Property Act established the Kenya Industrial Property Institute (KIPI) The Industrial Property Act was enacted in 2001. Section 3 of the Act establishes the Kenya Industrial   Property Institute in section 3 of the Act. The Authority. Section 5 of the Act establishes the function of the Institute to include considering the applications and granting industrial property rights; screen technology transfer technology; providing to the public, industrial property information for technological and economic development and promoting inventiveness and innovativeness in Kenya. The institute has the Traditional Knowledge Genetic Resources Unit in 2008. This unit was supposed to address issues of intellectual property rights relating to traditional knowledge associated with genetic resources for indigenous and local communities practicing traditional life styles, their traditional cultural expressions access and benefit sharing issues. The function of the Unit includes developing traditional knowledge database and developing guidelines to help avoid inappropriate intellectual property claims. However, there is little evidence that this has been achieve as this databased is not   publicly available

The Copy Right Act does not have any substantive provisions on Traditional Knowledge. Yet it is the legal regimes that is supposed to protect the modes through which the traditional knowledge is supped to be transmitted, like folklores.

This clearly points the capacity constraints the national institutions that are tasked with dealing with management of traditional knowledge database.

Has TRIPS Been Helpful   in Fostering Development of Traditional Knowledge?

Much as TIPS have the provisions that give   the members states including the developing countries to take measures towards protection of intellectual property rights, there is hardly any advantage that the developing countries have enjoyed. This can be attributed to many reasons as discussed below.

Lack of Data on Traditional Knowledge at WIPO and National IPR Registration

A self-funding agency of the United Nations, the World Intellectual Property Organisation (WIPO) is the global forum for intellectual property (IP) services, policy information and co –operation.

WIPO provide an avenue for protection of inventions among other Intellectual Property rights. When an application is brought   for a patent, it would normally be crosschecked for all the requirements including whether it is original. The checking can only happen against the database that is already with the WIPO. Lack data from the developing countries therefore means that most of the patents filed at WIPO which seemingly are traditional knowledge have been routinely registered, most by firms from the developed economies.

Kenya’s Experience with bio piracy

The speciality chemical used in faded jeans was made by genetically engineering micro-organisms that live in the highly caustic lakes of Kenya’s Rift Valley. These lakes are called ‘soda’ lakes, and they have such high alkali content that few living things can survive.

In 1992 a microbiologist discovered two organisms living in the hot caustic geysers of Lake Bogoria and along the shores of Lake Nakuru. Conditions in these waters resemble a washing machine filled with hot soapy detergent. Genencor bought the samples from the scientist without regard to the interest of Kenya, patented them and went on to clone them on an industrial scale at laboratories in Holland and California.

For instance Basmati Rice whose strains have been developed since 1950s with the help of India and Pakistan governments, was patented in United States by a private firm Rice Tech in the 1980s and even though the company did have exclusive rights over   the use of word “Basmati” it illustrates how lack of data can lead to appropriation of IPRs.

Similarly Tumeric, an Indian Plant that has been in use for years in controlling pests and   healing wounds and ashes was patented in the US and assigned to the University of Mississippi. The patent was revoked the Indian Scientific for Scientific and Industrial Research presented and ancient Sanskrit text that witnessed the traditional use of the plant. (J Michael et al 2003).

Again underlines the importance of date and information regarding traditional knowledge. The sad reality is that apart from these isolated cases, most of traditional knowledge is not properly documented and perhaps that is where the discussion on issues around TRIPS   should begin.

TRIPS costly for Developing Countries

The TRIPS Agreement imposes huge costs on developing countries. This is because these countries have supposed to set up industrial property registries and also to comply with the extensive obligations as regards enforcement as provided in Articles 41 to 61.

The Way Forward and Concluding Remarks

Countries especially in the developing world should develop strong legal regimes for copyright   and related rights

Countries need to adopt the sui generis system of protection traditional cultural expressions. This will allow continuity in the traditions.

On patents perhaps countries need to use the morality requirement of TRIPS to refuse the refuse the registration of a patent where the invention to which the application relates to a special cultural of spiritual importance for the indigenous communities.

There should be a legal framework for revocation of patents registered without prior consent, if the patents relates to a traditional knowledge held by a local community. There is also a suggestion that the legal regimes should clearly state that prior use of by a local community of an invention that utilizes such community traditional technical knowledge does not destroy the novelty of the invention.