A Sui Generis System of IP Protection for Traditional Knowledge

India's peculiar and notable characteristic is the variety of culture and knowledge found inside. Particularly in India, there are thousands of distinct and one-of-a-kind indigenous cultures and ethnic groupings. These groups have played a significant part in Indian history and are essential to maintaining the nation's culture and civilization.

Traditional knowledge generally refers to the knowledge system that has been deeply ingrained in indigenous, regional, or local communities' culture or customs for a long time. Traditional cultures' knowledge, biological resources, and culture are intricately intertwined and linked to create a rich portion of their heritage and give society a unique character. Such communities depend on this kind of knowledge to exist and survive. They are founded on an accumulation of complex interactions with nature and their surrounding environments.

In order to maintain the uniqueness of these groups' identities, it is also vital to safeguard such information against theft and exploitation.

Yet, the expanding commercial usage of these resources outside of the usual setting has raised the risk of theft and abuse by outside parties. The World Intellectual Property Organization (WIPO) established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) in 2000 in response to concerns raised by aggrieved groups regarding incidents of identity theft. Nonetheless, a regional and global system of protection is still required to safeguard and maintain such traditional knowledge (TK) and traditional cultural expressions (TCE).

This has prompted some nations to create their own unique mechanism to safeguard ancient knowledge. Sui generis refers to something unusual, distinct, and different that is "of its own sort." Since they are founded on the preservation of private property rights, conventional forms of I.P.R. are insufficient to protect indigenous knowledge. TK and TCE, on the other hand, demand a broader collective because they engage communities.

The goal of incorporating a sui generis system for the protection of T.K. and T.C.E. in India could be accomplished by changing some aspects of the current intellectual property regime to accommodate the distinctive characteristics of its subject matter, i.e., traditional knowledge and traditional cultural expressions, along with understanding the policy requirements, beneficiaries, and looking at the concept of equitable sharing and the principle of prior informed consent. A system like this can support the legal rights connected to T.K. and T.C.E. and so open up opportunities for access and benefit-sharing to safeguard the variety of knowledge and information held by Indian indigenous people.

It's crucial to consider various factors while creating a sui generis system to safeguard traditional cultural manifestations and knowledge, including :

Information on the country of origin's genetic and biological resources, preferably protected by a sui generis database protection system that will assure accountability and tracking

- Requirements for prior informed permission and equitable benefit-sharing between third parties and the holders of such traditional knowledge and expressions who are the rightful custodians.

- Protection of communities against threats and the preservation of cultural identity

Knowing who owns such traditional information and expressions, their distinctiveness, and their novelty. Provisions of customary international law. Disclosure of existing traditional knowledge and expressions. Environmental protection concerns and biopiracy: promoting access and benefit-sharing

The kinds of intellectual property protection that can be incorporated in the sui generis system can be of two kinds-

1. Protective protection, whereby those who retain such traditional knowledge from outside the community are barred from acquiring intellectual property rights over the subject. This will protect the rights of the legitimate custodial holders and stop improper use. For instance, while assessing patent applications, India has a repository with a database of all the traditional medicines that can be utilized as prior art support. Such an occurrence gave rise to the well-known case in which the US Patent and Trademark Office permitted the registration of a patent for the use of the spice turmeric that could be used to treat bruises, despite the fact that turmeric was the treatment's active ingredient and was well-known to Indian traditional and local communities for a long time. Later, the patent was canceled.

2. Positive Protection - This kind of protection aims to give communities the legal authority to control the uses and benefits of their traditional cultural expressions and knowledge and help and accredit local and regional communities in promoting their traditional cultural expressions and knowledge.

In order to strike a balance between indigenous communities and the government and position a strategic policy to recognize such expressions and knowledge as well as control the use by third parties, it is necessary to recognize the various forms of traditional creativity and innovation as subjects of protectable intellectual property.

The national and regional laws that protect TCE and TK only have a limited impact in today's globalized world because fragmented protection is unable to provide custodians with an adequate level of protection. This calls for an international regime that extends protection beyond national borders by establishing bilateral or plurilateral agreements between countries with a common interest.

The formation of a broader legal certainty will be ensured by the establishment of an international legal framework for the protection of T.K. and T.C.E. subjects. This framework will set the groundwork for an arrangement that provides minimum protection levels. An international framework will allow for some degree of harmonization across national laws, ultimately making it easier for right holders and T.K. and T.C.E. custodians to protect and sell their IP assets without worrying about theft.