The LexGaze Weekly - DECIPHER

A Hidden Domain of Intellectual Property: TK, TCEs

Aastha Vyas, Special Contributor

Issue 26 | January 10, 2021 

For years, indigenous communities have been deprived of exploiting their produce by denying them the requisite production under the Intellectual property regime (IP regime), let alone identifying the same as Intellectual Property in a traditional sense, consequentially leading to a misrepresentation of Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) across various platforms. Speaking of TK and TCEs, they must be understood outside the traditional IP regime owing to the nature and characteristics of the two domains.

Traditional Knowledge (TK)

Traditional knowledge (TK) comprises know-how, skills, and practices that are developed, sustained, and passed on from generation to generation within a community. TK, in a general sense, encompasses the intangible aspect of TCEs. In other words, TK consists of that practical knowledge and processes which, when expressed and put down in tangible form, result in Traditional Cultural Expressions or Expression of Folklore. TK can be found in a wide range of contexts, including agricultural, scientific, technical, ecological, and medicinal knowledge as well as biodiversity-related knowledge. However, the absence of a precise definition of TK has made it difficult, even for the organisations working to protect the same, from exploitation at a global level [EUIPO]. The same is evident from the Neem case where, though the EPO rejected the patent granted to US-based scientists; on re-examination, a similar order could not be obtained from the US courts [Hetal Trivedi, Protecting TK: The India Story Till-Date].

Traditional Cultural Expressions

TCEs (or expressions of folklore) are handed down from one generation to another, either orally or by imitation, and reflect a community’s culture and heritage while also indicating its social identity. Though not created for commercialization initially, factors like the proliferation of the internet and rapid urbanization have connected these communities with the urban population, which has resulted in a blatant misrepresentation of the expressions, whether in the form of paintings, adapted literature, wearables, or anything else. A form of expression using TK, TCEs is not strictly tangible and often exists in an intangible form, too. To illustrate this, consider murals from the sects of Tibetan Buddhism. Although they are a form of tangible expression, bear folk tales unique to each one of them forms the intangible part of the expression of folklore. A major problem vis-à-vis IP protection, irrespective of the intellect involved, is tracing the owner/holder of such expressions, as they are owned collectively by a community and are heavily influenced by social change. A fluid character, therefore, has made it difficult for international and municipal regimes to protect the same and, by not finding an effective way to control the narrative adopted in movies and other forms of literature, it has jeopardized the economic and moral rights of the communities which own it.

The Future?

TCE and TK have been misrepresented and misused by media houses, and the brainchild behind them has also been callously neglected.

The future regime of TCEs and TK should involve the introduction of reforms, to protect the product of mental labour of the tribes and the community while also giving them autonomy to decide the matters related to adaptations.

This recognition, while providing livelihood and growth opportunities to the artists along with the protection of their moral and economic rights, will also support the small-scale indigenous industries.

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