Sui generisis the answer: positive protection of traditional knowledge in India

Abstract

The Traditional Knowledge Digital Library (TKDL), developed by India, was one of the earliest initiatives in protecting traditional knowledge in the world. As a country rich in traditional knowledge largely unknown to the rest of the world, India set up the TKDL to ensure that this knowledge was not misappropriated by third parties using more traditional means of IP protection such as patents. However, the TKDL remains a defensive protection of traditional knowledge that does not fully ensure that the benefits of the information reach its original holders as far as possible. This article looks at the origins of the TKDL, its scope and role, and, finally, at the need for a sui generis protection for traditional knowledge in India. Although discussions on the development of a universal framework for protecting traditional knowledge are ongoing at the World Intellectual Property Organization, the process of consensus building has been slow. Therefore, legislation and protection mechanisms in each individual country will continue to determine how such knowledge can be used by third parties. This article suggests that India should adopt a framework for the protection of traditional knowledge similar to that of Peru, in order to provide legal certainty both for the communities that hold such traditional knowledge and for the third parties that seek to make use of it. Keeping in mind the many benefits that traditional knowledge has to offer, the objective of such framework would be to make the knowledge available for beneficial exploitation, while ensuring that the local communities receive their due.