Traditional Knowledge: Legal Protection And Emerging Challenges
Umrah Ghazi and Dr. Shariqa Mehmood
ABSTRACT
Traditional Knowledge ("TK") is the accumulated wisdom of indigenous and local communities relating to medicine, agriculture, biodiversity conservation, and cultural practice which sits uneasily within a global intellectual property architecture that was conceived for individual, novel, and time-bound innovation. Traditional Knowledge is, by contrast, typically collective in origin, orally transmitted across generations, and continuously evolving rather than fixed at a discrete point of creation. These characteristics place it in fundamental tension with the foundational premises of patent, copyright, and trademark doctrine, each of which presupposes an identifiable author or inventor, a discernible act of novel creation, and a finite term of protection. This structural mismatch has, over the past three decades, generated a distinct and increasingly urgent field of doctrinal inquiry and international policy negotiation.
This paper undertakes a doctrinal examination of the legal foundations of Traditional Knowledge protection and traces the evolution of the governing international regime. It begins with the Convention on Biological Diversity (1992), which first recognised state sovereignty over genetic resources and the role of community knowledge in their conservation, and proceeds through the Nagoya Protocol (2010), which operationalised access-and- benefit-sharing obligations, to the 2024 WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, which introduces a mandatory disclosure requirement for patent applicants relying on genetic resources or associated Traditional Knowledge. The paper then turns to India's domestic legal framework, analysing the Biological Diversity Act, 2002, the relevant disclosure and prior-use provisions of the Patents Act, 1970, and the Traditional Knowledge Digital Library as a defensive documentation strategy against biopiracy.
The paper identifies and critically examines four principal gray areas that continue to trouble scholars, regulators, and practitioners: the underlying conceptual mismatch between Traditional Knowledge and conventional IPR doctrine the documentation-versus-disclosure paradox inherent in defensive databases such as the TKDL and unresolved questions of community ownership, representation, and equitable benefit-sharing; and the comparatively narrow substantive scope of the newly concluded WIPO Treaty. The paper concludes by proposing the contours of a coherent sui generis regime responsive to the collective, dynamic, and customary character of Traditional Knowledge.
Keywords: Traditional Knowledge, Intellectual Property Rights, Traditional Knowledge, Convention on Biological Diversity (CBD), Nagoya Protocol, Biological Diversity Act, 2002 and Sui Generis Protection.
