Tabrez Ahmad

Traditional Knowledge: A New Challenge in Patents

Traditional knowledge has always been an easily available treasure and thus has been subjected to misappropriation. Intellectual Property Rights are one of the sites which represent the encounter between indigenous knowledge and modern scientific knowledge. The researchers in this paper try to highlight that TRIPS does not acknowledge traditional knowledge and neither has it made reference to the protection. TRIPS agreement provides for sui generis system and the part of the rationale behind the sui generis provision is that the claims of indigenous knowledge holders are based on completely different socio cultural norms, therefore, a system that is unique and rooted in local specificities should be used for the protection of indigenous knowledge. The problem of sui generis model is lack of proper system of benefit sharing and inclusion of traditional knowledge as in IP instruments of TRIPS. Possession is the most important basis to claim for IPR protection, thus the paper tries to portray that Traditional Knowledge is common knowledge and a product of collective experience without an individual act of creation; therefore it gets precluded from getting protection under IPR regimes. This paper brings to light the grant of patents on non-original innovations, which are based on what is already a part of the traditional knowledge of the developing world have been causing a great concern to the developing world. It further talks about the real challenge to Patent by Traditional knowledge are lack of complete data bases and availability to all the patent offices in the world. Another prime reason which the researchers think why Traditional knowledge is facing challenges in the patent as the locus of ownership cannot be clearly identified for knowledge systems that are essentially inter generational and products of communal endeavor. Traditional knowledge often falls short of requirement of non obvious or novel as it is often orally transmitted evolves gradually the prime ambit on being to respond to changing ecology and needs. These barriers have kept the traditional societies outside the ‘loop’ of the Patent protection. The researchers further in this paper intend to highlight the steps taken by Indian Government to curb the menace of biopiracy and biomedicines.

Split Wide Open: Biotechnology and the Open Source Movement

The proper scope of patent protection for biotechnology discoveries has been the source of longstanding debate among legal scholars, research scientists, and industry executives. A major predicament of the system is that it gnaws away at further innovation and creativity because of its aggressive privatization model. Heller and Eisenberg term this as ‘the tragedy of the anticommons’ which is the mirror effect of Garett Hardin’s ‘the tragedy of the commons’ and revolves around the underutilization of resources because of an overlapping rights structure. It is because of this fear of privatization by the intellectual property regime that the patent system has resorted to the open source model of knowledge exchange.However, the basis of the open source movement in biotechnology is fundamentally flawed. It is only an irrational fear, only a notion that has been bound by conjectural fetters. The open source movement is only an imprudent measure taken in the face of a supposed tragedy, and it has in fact, created more problems for the patent system than it has solved.

How Can One Distinguish Cartels from Legitimate Cross-Licensing Arrangements between Competitors

Cartels are a focus of concern for many reasons. Cartels cause a locative inefficiency by reducing production in order to raise market price. This forces consumers to pay significantly more money for products, from luxuries like high end art to necessities like vitamins and pharmaceuticals. Fortunately, cartels are inherently unstable. Many of the problems of cartel stability are related to trust. For a cartel to be formed, each participant must trust its cartel partners not to do two things: cheat on the agreement by charging less than the fixed price, or tell antitrust authorities about the cartel. In our article we will try to place all the methods of distinguishing cartels from cross-licensing arrangements between competitors. It is very important to know about cartels and cross licensing arrangements in the competitive world. Cross licensing is legal where as Cartels are legal and illegal both, in Cross licensing there is no such strict requirement of trust but in Cartels trust is required among the members of the cartel. There are two methods for competitors to expose their business and earn profit in case of IP related transactions. Several developed countries have separate laws which are specifically applied to Cartels but in India there is no such law it is governed under the Competition Act.

Intellectual Property Protection of Bio-Cultural Property and Expression of Folklore in International Legal Regime

The emergence of a “global information society” in recent years, characterized by the advent of modern information technologies, has also given rise to increasing awareness of traditional knowledge (TK). TK is thus receiving increased attention in numerous policy debates, ranging from food and agriculture, the environment, health, human rights, and cultural policy, to trade and economic development. The role of intellectual property (IP) in the protection of TK is currently being considered in several of these policy contexts, in addition to discussions taking place in intellectual property circles. As the specialized United Nations agency responsible for the promotion of intellectual property worldwide, WIPO was mandated in its 1998-99 Program to undertake exploratory groundwork in order to provide an informed and realistic analysis of the IP-aspects of TK.Another new concept which is emphasized is that of Bio-Cultural property, which is defined as follows: “knowledge, innovation, practices and cultural expressions of Indigenous Peoples and local communities which are often shared and are intrinsically linked to traditional territories and natural resources, including the diversity of genes, varieties, species and ecosystems, cultural and spiritual values and customary laws originated within the socio-ecologic context of these communities”. For several reasons, traditional knowledge has been a critical issue during the early years of this century. Since the enactment of intellectual property laws, the traditional system has never considered indigenous knowledge as a part of it. Now after hundreds of years of enforcement under the western traditional system, this concept is becoming obsolete. The fact that a large percentage of the worlds population depend on traditional knowledge for survival, that is to say, to satisfy the need for health care or food security, traditional knowledge is gradually being acknowledged. However, indigenous communities are still waiting to receive the benefits or royalties for their traditional and ancient knowledge.With great concern, we also note the large number of applications for patents based on traditional Knowledge or biological materials which have been illegally extracted from indigenous lands. This is why it is so important to protect the resources of biological diversity as well as those of traditional knowledge; the autonomy and self-determination we defend so strongly depends on this protection.Faced with this threat, we are reviewing the different regulations in force to see if any of them are useful to protect our rights. While carrying out this study, we have come to the conclusion that there is very little we can use, almost nothing. Instead, new regulations like the sui generis model have been developed to satisfy our demands.

Protection of Bio-Cultural Property in the Cradle of Traditional Knowledge

Human communities have always generated, refined and passed on knowledge from generation to generation. Such “traditional” knowledge” is often an important part of their cultural identities. Traditional knowledge encompasses the beliefs, knowledge, practices, innovations, arts, spirituality, and other forms of cultural experience and expression that belong to indigenous communities worldwide. Since the adoption of the Universal Declaration of Human Rights in 1948, intellectual property has been considered a fundamental human right of all people. Only recently, however, has the need to protect, preserve and provide for the fair use of indigenous intellectual property ‘traditional knowledge’ entered the domestic and international debate on intellectual property rights. Non-indigenous groups, such as corporations, have been exploiting the traditional knowledge that has been developed by indigenous beings over centuries. However, the international community has sought to recognize and protect such traditional knowledge. Many developing countries, holders of traditional knowledge, and campaigning organizations are pressing in a multitude of fora for traditional knowledge to be better protected. Such pressure has led, for example, to the creation of an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in WIPO. Such knowledge and folklore is also being discussed within the framework of the CBD and in other international organizations such as UNCTAD, WHO, FAO and UNESCO. In addition, the Doha WTO Ministerial Declaration highlighted the need for further work in the TRIPS Council on protecting traditional knowledge.

Software Protection in Convergent Multimedia Environment

New technologies and its convergence for the creation and storage of cultural works threaten copyright, but add that what is historically remarkable is its resilience. On the contrary, hybrid legal regimes emerged outside classical frameworks, thus violating economic premises and historical balances of rights. Copyright law has by and large been formulated according to principles of “technological neutrality”. It has focused on the nature of the use of the work, rather than the medium, by which the use is accomplished, or the physical facilities or equipment involved. Thus the law has granted to copyright holders the right to reproduce the work, to adapt it, to perform it publicly, and to communicate it to the public. Nevertheless, the increased extension of copyright protection and increased capacity to store, transmit, process information enhances the ubiquity of creativeness, on one hand, multiplying the distribution chains for cultural goods and, on the other hand, making it easier to copy them. The immediate consequence of both is a gradually decreasing on the number of exceptions to the monopoly. This trend touched all fair uses, and led to the question about what will be the implications on economic competition and technological diffusion. The same forces that give rise to convergence have also given rise to problems for copyright model of technological neutrality: the technique and media have changed to such an extent that rights drafted to be neutral and capacious may either no longer fit, or may fit too much .It has therefore become necessary to re-examine the question of what rights should exist in which works, and how they can be enforced and licensed, in order to maintain meaningful incentives and appropriate balances .In other words, the causes of convergence may also lead to a potential convergence of separate right in the copyright “bundle” and a shift in the established boundaries, categories and roles of copyright law .