Presented at Second International Law Conference organized by Indian Society of International
Law, New Delhi, 15 Nov. 2004.
Traditional Knowledge and Intellectual Property Rights : A
historical perspective
Rajesh Kochhar
NISTADS: National Institute of Science Technology and
Development Studies
K.S. Krishnan Marg, New Delhi 110 012
Indian nationalist leadership of the late 19th century was in a confused
state of mind. It could not decide whether it should challenge the colonial
empire’s might and incur its wrath or appeal to its sense of noblesse oblige and
ask for small favours. Mahatma Gandhi resolved the dilemma by squarely
placing the west on the defensive on ethical grounds and for all times to come.
(In fact, Mohandas Gandhi became Mahatma Gandhi precisely when he
accomplished this.) Third world countries find themselves in a similar pre-
Gandhian dilemma on the important question of intellectual property rights
associated with traditional knowledge (TK) of which they are the repositories.
Should they individually nit pick or should they collectively take a principled stand.
The latter option , desirable as it is , is difficult to exercise , the more so because
the concept of noblesse oblige seems to have disappeared from international
affairs.
The term third world was coined in 1952 by the French demographer
Alfred Sauvy to denote the economically underdeveloped countries. The First
and the seond worlds were then described as an afterthought.Capitalist,
industrialized countries constituted the first world, whereas the Soviet communist
block represented the second world. The coinage was inspired by the
expression third estate which denoted the commoners of France before and
during the French revolution as opposed to the priests (first estate) and nobles
(second estate). With the collapse of the Soviet Union, the second world has
disappeared, even though the term third world continues to retain its original
meaning.
We would like to define the three worlds in a connected and physically
meaningful way , using the industrial revolution as a marker, with the third world
retaining its original composition. In this new scheme, the third world comprises
countries whose societies have essentially remained untouched by the industrial
revolution. The second world consists of (west European and other) countries
which have been transformed through industrial revolution, industrialization or by
association, but have retained some memories and sensitivities from the preindustrial
times. The first world comprises a solitary country, USA, which is a
social product of post-industrialization era, representing a total break from earlier
times. The second world has been influenced by intra-European responses and
colonialist experience, while the first world has been fashioned entirely by its
conscious and subconscious reaction to the Europe it left behind.
When the world was Euro-centric, it was easy to define what was new. If
Europe did not know of it, it did not exist before. In 1738 William Champion was
granted a patent in his capacity as “the first European to produce metallic zinc”,
even though the process was known to have been brought from east Asia (It
originated 2000 years age in Aravalli Hills, Rajasthan, India.) However 100 years
previously, in 1608, when Hans Lipperhey applied for a patent on telescope, he
was turned down “on the ground that it is evident that several others have
knowledge of the invention”. By the same logic, in today’s decentralized world if
knowledge is available anywhere, it should not be possible to patent it.
Just as the first, physico-chemical, industrial revolution went hand in hand
with European colonial expansion, the second, biotechnological, revolution is
being attended on by globalization. The industrial revolution was an entirely selfcontained
European exercise, though it was facilitated by the subjugation of thirdworld
countries. (If zinc metallurgy had not been imported from Asia, it would
have been invented afresh.) But the on-going biotechnological revolution needs
the third world. It is the third world’s traditional knowledge in civilizationally vital
areas of food and health care that is being molecularized for incorporation into
the broad-stream of modern science. This would have been a laudable exercise
were it not for the retreat of the state and the weakening of internationalism. No
body would have minded enrichment of science if some firms were not getting
enriched in the process.
Third world countries are inherently incapable of protecting their TK. They
have become aware of its value because of the scientific advancement in the
west. Most TK of the world is undocumented. Even in countries like India where
it was partially committed to paper under colonial auspices, what is now the
written word was not self-contained. It was meant as an aid to a living oral
tradition. In any case, ancient documents were not prepared to withstand the
scrutiny of a modern-day patent attorney. Nations can be expected to plead their
case in a court that is above all of them. A country cannot expect to win a case
in the domestic court of another country according to the law laid down by the
latter. (In the period following the celebrated cancellation of a turmeric patent on
India,s objection more than 200 patents have been granted on turmeric, some to
Indian organizations themselves. None has been challenged : most are
unchallengeable as US laws stand.)
Patent laws in Europe followed by USA were enacted to deal with
mechanical contraptions and to protect and further localized interests.
Globalization has changed the rules of the game; and molecularization the game
itself. Novelty needs a new definition and a new sensitivity. If traditional
knowledge provides the initial clue, mere use of sophisticated instrumentation to
“unlock” the chemical secrets of plants should not constitute an inventive step.
TK should be viewed as a global heritage, to be protected by the world as a
whole. The burden of protecting TK should not fall on the emaciated shoulders of
its third-world repositories. If any organization exploits it commercially, it should
pay a royalty into a global fund meant for the welfare of the world’s poor.
When the Paris Convention on Industrial Property internationalized patent
laws in 1883, they had been in existence for 400 years. Today we must frame
global IPR laws for situations for which there is no precedent. These laws should
not be petty. They should be enshrined in a framework that is universal by being
ethical. In 1738 what is now USA was earnestly appealing to England to grant
recognition to Thomas Godfrey, the first ever inventor of sextant. Haughtily,
London refused. USA has come a long way since. Now that USA has emerged
as the solitary world power, its laws should also evolve. It must set an example
for rest of the world by amending its own antiquated and parochial patent laws to
truly reflect the spirit of a global world.
———–