The variety of cultures and traditions that are distinct and unique worldwide can be astounding. Furthermore, each of those cultures manifests those traditions in all forms of expression, such as daily habits, art, and craftsmanship. Over the last century, as trade and societies became more international, several local communities and governments claimed the need to protect those forms of traditional expression legally. As certain products and skills from certain regions gained a worldwide reputation, some operators attempted to take advantage of others’ know-how and prestige.
Given the variety of traditional expressions, different intellectual property (IP) rights come into play to protect them. Patents, trademarks, copyright, geographical indications, and trade secrets will have more or less relevance depending on what they aim to protect; music, a plant-based compound, or acquired skill in a particular craft. However, it is important to highlight that traditional knowledge as such is not protected by conventional intellectual property instruments.
Geographical Indications as means for protection in India
India has been a hive of tradition and skill in all forms of art and craft for millennia and has excelled in multiple disciplines. Over the last years, the Indian government has intensified its efforts to strengthen its IP system, with Geographical Indications (GIs) being a major topic of discussion for both national legislation and international agreements.
In fact, last year’s Parliament’s Review of the IPR Regime in India addressed the issue of traditional knowledge in depth. The Parliament envisaged that the lack of documentation of traditional knowledge and the inherent obstacles this heritage faces to be protected through standard IPRs should be addressed in a more structured manner. It proposes to strengthen the Traditional Knowledge Digital Library (TKDL) and recognise the value of GIs to consolidate traditional knowledge into IPRs.
In order to guarantee the origin of a product, GIs would be the IP right fit for the purpose. A GI is a sign used on goods that have a specific geographical origin and possess qualities or a reputation that is due to that origin. A difference worth pointing out between the European and Indian GI systems is that for now, at EU level, Geographical Indications protect agricultural products and drinks (note that this might change soon: ongoing discussions are currently taking place on the extension of GI protection at EU level to also cover products of craftsmanship).. In contrast, India also includes handicrafts within this protection mechanism.
Today, India has over 400 geographical indications registered. These IP rights aim to recognise the quality of local produce, such as the Morel mushroom, and the expertise of local artisans that produce the Channapatna toys of Bangalore, for example. It is a significant step for proper recognition of Indian products in international trade, which keeps gaining importance in international exchanges such as the last India-EU Trade and Investment Agreements.
Other industries like the fashion and textile sectors, which are fundamental gears in the Indian economy, can also benefit from intellectual property protection. GIs have again played an essential role in protecting certain fibres and textiles traditionally woven in multiple regions of India; trademark protection also has high relevance in identifying the producer or retailer of these products.
Other IP Rights as tools used to protect Indian cultural knowledge
Certain traditions have a more artistic form of expression, like music, painting, or literature. Such creations tend to be protected via copyright. Again, copyright and tradition discern given that copyright protection has a time limit. India is a signatory of the Berne Convention and has established the term of protection of most artistic works 60 years after the author’s death. After such a period, the work becomes part of the public domain and can be reproduced and commercialised without prior authorisation. It is however important to note that works which copy entirely or in part Indian traditional cultural items (e.g. clothing patterns) will not benefit from copyright protection due to their lack of originality. However, copyright protection may be granted when such works result from a reinterpretation of these traditional expressions.
Other forms of tradition can involve medicine, for example, where different IP rights, such as patents, often come into play. However, it is essential to note that tradition and patenting often collide due to one fundamental requirement of patents: they have to be novel. Hence, a traditional mixture used by indigenous communities for treating a particular disease cannot be patented for the treatment of that very same disease. Yet, research on alternative uses of these traditional mixtures and their use in other more complex compounds has historically improved the medicines available and has been the nest of most currently patented drugs in the market. India has been actively fighting “biopiracy” and doing its best to impede foreign companies from taking unfair advantage of India’s cultural heritage, often in the patenting scene. For instance, India has set up a database of protected traditional knowledge to prevent its misappropriation through third-party patenting. Plus, the Biodiversity Act of 2002 also restricts the patentability of elements based on traditional knowledge.
A case worth mentioning in this regard is the opposition to the Neem Patent, filed by W.R. Grace and the Department of Agriculture, USA, at the European Patent Office. The patent claimed a method for controlling plant fungi infections through a Neem-based oil formulation. This method for controlling fungi infections has been known and used in India for millennia. Hence after being made aware of the patent filing, the New Delhi Research Foundation for Science, Technology and Ecology filed an opposition before the EPO. The examining division found the documents provided as relevant prior art and revoked the patent for lack of novelty and inventive steps.
All in all, cultural knowledge and traditions are a big part of our identity and the main charm of cultural exchange. Those new flavours and people we meet from other cultures bring joy and richness to our lives and are implicitly entitled to be protected. As we discovered, traditional expressions can vary in content and form. It is fundamental to be aware of how intellectual property rights play a major role in protecting the variety and richness of local cultures worldwide. European small and medium-sized enterprises aiming to expand their commercial activities in India should be well aware of the main differences each protection mechanism has depending on the type of traditional knowledge to be protected. Taking these specifics into account can provide a considerable competitive advantage and avoid potential IP conflicts.
- Publication date
- 26 September 2022