Intellectual Property Rights and the Protection of Traditional Knowledge

Intellectual Property Rights and the Protection of Traditional Knowledge Nisha Dhanraj Dewani Guru Gobind Singh Indraprastha University, India Amulya Gurtu Austin E Cofrin School of Business, University of WisconsinGreen Bay, USA A volume in the Advances in Knowledge Acquisition, Transfer, and Management (AKATM) Book Series Published in the United States of America by IGI Global Information Science Reference (an imprint of IGI Global) 701 E Chocolate Avenue Hershey PA, USA 17033 Tel: 717-533-8845 Fax: 717-533-8661 E-mail: cust@igi-global.com Web site: http://www.igi-global.com Copyright © 2020 by IGI Global All rights reserved No part of this publication may be reproduced, stored or distributed in any form or by any means, electronic or mechanical, including photocopying, without written permission from the publisher Product or company names used in this set are for identification purposes only Inclusion of the names of the products or companies does not indicate a claim of ownership by IGI Global of the trademark or registered trademark Library of Congress Cataloging-in-Publication Data Names: Dewani, Nisha Dhanraj, 1985- editor | Gurtu, Amulya, editor Title: Intellectual property rights and the protection of traditional knowledge / Nisha Dhanraj Dewani and Amulya Gurtu, editors Description: Hershey, PA : Information Science Reference, 2020 | Includes bibliographical references and index | Summary: “”This book explores the protection of traditional knowledge and indigenous peoples’ rights through intellectual property” Provided by publisher” Provided by publisher Identifiers: LCCN 2019034102 (print) | LCCN 2019034103 (ebook) | ISBN 9781799818359 (hardcover) | ISBN 9781799818366 (paperback) | ISBN 9781799818373 (ebook) Subjects: LCSH: Intellectual property | Traditional ecological knowledge Law and legislation Classification: LCC K1401.5 I58 2020 (print) | LCC K1401.5 (ebook) | DDC 346.04/8 dc23 LC record available at https://lccn.loc.gov/2019034102 LC ebook record available at https://lccn.loc.gov/2019034103 This book is published in the IGI Global book series Advances in Knowledge Acquisition, Transfer, and Management (AKATM) (ISSN: 2326-7607; eISSN: 2326-7615) British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library All work contributed to this book is new, previously-unpublished material The views expressed in this book are those of the authors, but not necessarily of the publisher For electronic access to this publication, please contact: eresources@igi-global.com Advances in Knowledge Acquisition, Transfer, and Management (AKATM) Book Series ISSN:2326-7607 EISSN:2326-7615 Editor-in-Chief: Murray E Jennex, San Diego State University, USA Mission Organizations and businesses continue to utilize knowledge management practices in order to streamline processes and procedures The emergence of web technologies has provided new methods of information usage and knowledge sharing 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of the authors, but not necessarily of IGI Global Titles in this Series For a list of additional titles in this series, please visit: http://www.igi-global.com/book-series/advances-knowledge-acquisition-transfer-management/37159 Developing Knowledge Societies for Distinct Country Contexts Nuno Vasco Lopes (University of Minho, Portugal) and Rehema Baguma (Makerere University Uganda) Information Science Reference ã â 2020 • 280pp • H/C (ISBN: 9781522588733) • US $185.00 Knowledge Management Practices in the Public Sector Vasileios Ismyrlis (Hellenic Statistical Authority, Greece) Theodore Tarnanidis (University of Macedonia, Greece) and Efstratios Moschidis (University of Macedonia, Greece) Information Science Reference ã â 2020 • 263pp • H/C (ISBN: 9781799819400) • US $195.00 Current Issues and Trends in Knowledge Management, Discovery, and Transfer Murray Eugene Jennex (San Diego State University, USA) Information Science Reference ã â 2020 ã 450pp ã H/C (ISBN: 9781799821892) • US $185.00 Handbook of Research on Implementing Knowledge Management Strategy in the Public Sector Yousif Abdullatif Albastaki (Ahlia University, Bahrain) Adel Ismail Al-Alawi (University of Bahrain, Bahrain) and Sara Abdulrahman Al-Bassam (Arabian Gulf University, Bahrain) Information Science Reference • © 2019 • 583pp • H/C (ISBN: 9781522596394) • US $195.00 Big Data and Knowledge Sharing in Virtual Organizations Albert Gyamfi (Aalborg University, Denmark) and Idongesit Williams (Aalborg University, Denmark) Engineering Science Reference ã â 2019 ã 313pp ã H/C (ISBN: 9781522575191) • US $215.00 For an entire list of titles in this series, please visit: http://www.igi-global.com/book-series/advances-knowledge-acquisition-transfer-management/37159 701 East Chocolate Avenue, Hershey, PA 17033, USA Tel: 717-533-8845 x100 • Fax: 717-533-8661 E-Mail: cust@igi-global.com • www.igi-global.com Table of Contents Foreword xiii Preface xv Acknowledgment xxiii Chapter Critical Evaluation of Laws on Traditional Knowledge Unanza Gulzar, The NorthCap University, India Chapter Access to Medicines in the Light of Patent Law Regime in India: A Legacy of Legislation or Lease of the Judiciary? 28 Akanksha Jumde, Deakin University, Australia Nishant Kumar, Central University of Punjab, Bathinda, India Chapter Interface Between Right to Education and IPR: Does Copyright Law Inhibit the Enjoyment of Right to Education? 57 Akanksha Jumde, Deakin University, Australia Nishant Kumar, Central University of Punjab, Bathinda, India Chapter Arbitration in Patent Disputes: To What Extent Is It Possible? 76 Shaharyar Asaf Khan, Amity Law School, Delhi, India Ashita Alag, Supreme Court of India, India Chapter Traditional Knowledge and Arbitration Dispute Resolution: Indigenous People and Local Communities 103 Venu Parnami Tuteja, Amity University, Noida, India  Chapter Challenges Related to Protection of Indigenous Resources Against Biopiracy 124 Zubair Ahmed Khan, University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, India Chapter Biopiracy: Challenges Before India 140 Anindya Bhukta, Netaji Mahavidyalaya, India Sebak Kumar Jana, Vidyasagar University, India Chapter Protection of Indian Traditional Rice Varieties: Role of PPV and FRA 158 Moghanraj Yadhav G., VAANGHAI, Nagapattinam, India Balaguru Balakrishnan, Jamal Mohamed College, Tiruchirappalli, India Nagamurugan N., Government Arts College, Madurai, Tamilnadu, India Chapter Women Custodians of Tradition .182 Sudha Jha Pathak, Bennett University, India Chapter 10 Intellectual Property Management by Innovative Firms: Evidence From Tunisia .204 Chiraz Touil, IHEC, University of Sfax, Tunisia Souhaila Kammoun, IHEC, CODECI, University of Sfax, Tunisia Chapter 11 Traditional Knowledge and State Compliance: A Case Study From New Zealand 239 Claudia Masoni, Independent Researcher, Italy Compilation of References 265 About the Contributors 289 Index 295 Detailed Table of Contents Foreword xiii Preface xv Acknowledgment xxiii Chapter Critical Evaluation of Laws on Traditional Knowledge Unanza Gulzar, The NorthCap University, India People at large not have the capacity to transform their knowledge into formal specification and consequently into wealth Some people who are hampered because of their poverty illiteracy, isolative habitat, lack of information and technological gadgets are unable to convert their knowledge into wealth In this background, the chapter has critically evaluated traditional knowledge in the context of the challenges it faces Further, it analyses the protection given to traditional knowledge under different laws and its international perspective Moreover, efforts are taken at both the national and regional levels Lastly, the chapter has come up with certain suggestions for its improvement and protection Chapter Access to Medicines in the Light of Patent Law Regime in India: A Legacy of Legislation or Lease of the Judiciary? 28 Akanksha Jumde, Deakin University, Australia Nishant Kumar, Central University of Punjab, Bathinda, India This chapter aims to trace the development of patent law regime in India and analyze its evolution in response to globally-influential intellectual property framework, such as TRIPS and pressure from the developed countries US and Europe to open up her markets to permit cash-rich pharmaceutical companies to sell their drugs and receive patent protection in India An observation of the legislative actions and judicial responses reveal that both the parliament and the supreme echelons of the  judiciary have been tediously careful in protecting the healthcare needs of the poor by promoting the generic drug industry through a guarded interpretation of Section 3(d) of Patents Act, 1970 The objective of the chapter is to critically analyze the legislative reforms and judicial interpretations of patent law in light of the socioeconomic needs of the country Chapter Interface Between Right to Education and IPR: Does Copyright Law Inhibit the Enjoyment of Right to Education? 57 Akanksha Jumde, Deakin University, Australia Nishant Kumar, Central University of Punjab, Bathinda, India The chapter seeks to explore the extent to which copyright law impedes the fulfillment of the right to education and discuss the alternatives that seek to balance these conflicting rights The chapter is divided into three parts: the first part of the chapter discusses the embodiment of the right to education in several national and international instruments, the extent of problem of the lack of access to educational materials due to copyright protection The next part of the chapter discusses the flexibilities provided in international copyright law and efficacy of the same, primarily the doctrine of fair use The last part of the chapter discusses alternatives to fair use and impact of these supplementary mechanisms Chapter Arbitration in Patent Disputes: To What Extent Is It Possible? 76 Shaharyar Asaf Khan, Amity Law School, Delhi, India Ashita Alag, Supreme Court of India, India The commercial disputes between business entities to boost international trade and technology will increasingly involve an aspect of patents Among various modes of ADR, the arbitration is preferred more over litigation Still, various arguments have been presented both in favor and against arbitration in patent disputes Thus, this chapter deals with the scope of patent disputes that can be referred to arbitration, which needs to be analyzed and defined, keeping in mind the consequent advantages of arbitration in case of patent disputes over traditional litigation Additionally, there are various procedural aspects related to arbitration that might be specifically relevant to an arbitration involving patents and may require special attention by parties involved in such arbitration have also been made subject and discussed in detail  Chapter Traditional Knowledge and Arbitration Dispute Resolution: Indigenous People and Local Communities 103 Venu Parnami Tuteja, Amity University, Noida, India The unique requirements of the Indigenous people with respect to the intellectual property are very different There are many conflicts regarding the questions of culturally appropriate usage, sharing of knowledge, and proper attribution The process followed by courts may not resolve their issues They have distinct social, cultural, and economic needs The redressal system should be such that it helps to maintain and protect their position ADR is one of the best to resolve their disputes as it offers a number of possibilities The main methods of ADR are negotiation, mediation, and conciliation WIPO plays a role in providing ADR arbitration rules in regards to the Indigenous people and local communities The WIPO Arbitration and Mediation Centre was established in 1994 providing the resolution among the private parties regarding their international commercial disputes across borders Through this chapter, questions such as the extent of ADR in resolving these issues and can this centre be considered as an appropriate forum for addressing the issues and settling them are presented Chapter Challenges Related to Protection of Indigenous Resources Against Biopiracy 124 Zubair Ahmed Khan, University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, India The protection of indigenous/aboriginal resources is one of the important aspects of biodiversity justice Many international treaties and conventions legitimised natural rights and privileges of tribal societies and indigenous communities But some interventionist practices like a conflict of interest in bioprospecting agreement and biopiracy have become major concerns for prospering third-world countries Strategic application of prior-informed consent and benefit-sharing procedures will definitely meet socio-environmental sustainability in the country The responsibility and liability of state biodiversity authority and local biodiversity committee at village level need to be fixed to maintain transparency and accountability Conservation of ethnobiological resources is also important in the view of increasing patent infringement That’s why issues of patentability must include complete disclosure of specification claims even in the case foreign natural resources  Chapter Biopiracy: Challenges Before India 140 Anindya Bhukta, Netaji Mahavidyalaya, India Sebak Kumar Jana, Vidyasagar University, India Bio-piracy indicates unauthorized use of bio-resources of a country either by the individuals or institutions or companies of other countries The countries with enormous bio-resources, like India, become the victims of biopiracy The paper highlights different issues relating to biopiracy in the context of food security of India It has been argued that the distress of farmers has increased a lot after the emergence of GM seeds First of all, GM seeds raise the cost of cultivation by monopolizing the seed business in the hands of a few Secondly, taking monopoly control over the market by the MNCs became easier because technology allowed them to develop seeds which can be used once-for-all The farmers, therefore, have to give up their traditional practice of saving and sharing of seeds The paper cites various instances of biopiracy in India and explains how biopiracy jeopardizes the food security and health security of the people in India Events of piracy of plants with medicinal values and medicinal knowledge of traditional healers are also on increase at a rapid pace in India This trend also poses challenges health security of India More initiatives need to be taken at different levels including government and NGOs need to be taken in documenting codified and non-codified traditional knowledge (TK) Chapter Protection of Indian Traditional Rice Varieties: Role of PPV and FRA 158 Moghanraj Yadhav G., VAANGHAI, Nagapattinam, India Balaguru Balakrishnan, Jamal Mohamed College, Tiruchirappalli, India Nagamurugan N., Government Arts College, Madurai, Tamilnadu, India The crop genetic diversity has been sustainably maintained by the farmers of different regions for generations through cross-breeding Competition among commercial ventures has placed these traditional varieties under severe exploitation and pilferage The Indian government, to preserve these traditional varieties, has established PPV and FRA (Protection of Plant Varieties and Farmers Rights Act), which are on par with Intellectual Patent Rights (IPR) This gives the rights and ownership of the crop breed and its characterization to the traditional farmers who developed it The researchers along with VAANGHAI, an NGO, have represented the traditional farmers, who are growing and maintaining traditional crops in Cauvery River’s coastal delta region in Tamil Nadu to characterize and register their varieties under PPV and FRA This study has identified around 69 rice varieties and characterized them based on their uniqueness, distinctiveness, stability, uniformity, test trials, and adaptability potential Most potential rice varieties were registered under this act ... in and from richness and variety of complex ecosystems, they have an understanding of the properties of the plants and animals, the functioning of the ecosystem and the technique of using and. .. identification of the rights and conferring the rights and to comply with respective agencies Analysis of Constitutional Provisions Relating to Traditional Knowledge To safeguard the TK and the rights of the. .. dwellers then they came up with The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forests Rights) Act, 2006 recognises the rights of the forests, the rights of forest-dwelling