Decolonising Traditional Knowledge and never-ending exploitation through Patent Regimes of Global North

Introduction

Traditional knowledge from time immemorial have been one of the most curious forms of non-codified intellectual properties. Unlike Patents, Trademarks and Copyrights which have a codified world around them Traditional Knowledge in its historical roots have not only seen an intense debate surrounding commodification as an intellectual property but also in line with colonial injustice in the Global South as well. The awareness and protection related to traditional knowledge fundamentally triggers one important question despite, consistent institutional and non – institutional protection efforts on a global level for TK – Have we decolonised Traditional Knowledge enough?

I. Global South’s Lead Thinkers, Knowledge Structures and Traditional Knowledge

Genericization is a common practice which happens to any intellectual property, codified or non-codified, if due actions have not been taken for its protection and awareness. Basmati, Haldi, Ayahuasca, Quinoa, Neem and various other cases showcases lack of immediate action from the notable countries in the Global South leading to more genericization. The non-codification of traditional knowledge in national and international jurisdictions have added onto this issue and showcases a rippling effect in granting institutional justice to indigenous and traditional communities in a dynamic society as of today. The two extremes of this discussion surround the fragmented analysis of TRIPS on one hand and lack of sui generis legislations at individual or domestic levels on the other. The lack of immediate action shows a gradual and steady exploitation of traditional knowledge by Global North countries through their multi-national companies corridors and creating an effective market based on genericization of goods encompassing TK. One of the key reasons which adds on to the analysis under epistemological justice is of the global South is how Western knowledge structures do not consider indigenous or global South knowledge to be “scientifically accurate” and unfortunately tag it as just folk wisdom.

This has been a consistent problem as to why genericization is taken up not very seriously in Global North but the Global South has paid a huge price in this regard. The traditional knowledge systems showcases scientifically based indigenous knowledge which has a large revenue potential especially for agrarian economies like India. In this paper, through a detailed analysis it can be seen that right from the Basmati case to many other cases, countries like India in the Global South have consistently paid the price of traditional knowledge been colonised by the Global North at a massive level.

Various efforts in the initial traditional knowledge exploitation cases showcases advocates for biodiversity and indigenous knowledge like Vandana Siva[2]leading the legal challenges in the Neem case[3], whereas the South African Council for scientific and industrial research patented[4] the appetite suppressant qualities of Hoodia plant[5] notably showing visible efforts against illegal exploitation of TK of Global South. Shiva has showcased key focus on establishing and shunning knowledge-based structures purely on western philosophy[6]. As someone advocating for agrarian economies like India[7] Vandana Shiva tag biopiracy as not an act of exploiting traditional knowledge but a direct means to patenting seeds attacking on the force of nature[8]. Someone who is critical about international frameworks like TRIPS[9], Shiva has advocated that these instruments focus on privatisation of indigenous knowledge hence aggravating the colonisation of traditional knowledge, even more. Her idea of justice is rooted in the concept of community ownership through sui generous legislations which gives not only legal but an ethical and cultural notion to epistemic justice in TK. At this point, one can find it intriguing and assert seamless association between her concept of community ownership in domains like Traditional Knowledge and legal pluralism[10]. As a strong advocate for seed sovereignty[11] her idea of justice dwells into a completely different intellectual property framework which is devoid of traditional understanding of Patents and other associated IP. The idea of economic and epistemic justices advocated by her gives a strong force that decolonising traditional knowledge is not just a necessity but an indispensable work required for the countries in Global South.

Another notable thinker Nnimmo Bassey from Nigeria[12] highlights the rational analysis of epistemic justice in line with the rights of indigenous communities. He is a keen advocate for Agro-ecology which focuses on sovereignty of indigenous knowledge[13] and highly critiques hegemonic Global economic system. It is interesting to note that his idea of justice is also based on criticising dominance of Western Knowledge structures. The understanding of legal pluralism and the notion of justice focuses on important frameworks for marginalised indigenous communities. He significantly argues[14], just like other thinkers such as Vandana Shiva,  that western knowledge systems greatly discredit the indigenous knowledge from the Global South as unscientific. Bassey’s thought sits perfectly well with the notion of Epistemic Justice for the Global South by Boaventura de Sousa Santos[15].

Esperanza Martinaz[16] also advocates protection of indigenous knowledge and unauthorised access of traditional knowledge through the act of biopiracy. As a biologist, he strongly advocates Epistemologies of the Global South to be a base towards de-colonising traditional knowledge. His line of work opposing extraction activities and he directly connects the activities of oil drilling and other extraction activities to the concept of environmental and indigenous injustice[17]. His opposition is based on the fact that colonising traditional knowledge by showcasing it as unscientific in the western cultures has proven disastrous for countries in the Global South. His work is derived from extraction activities being undertaken in ecologically sensitive areas in Ecuador, notably Yasuni national Park.[18]

In order to understand knowledge structures to strengthen the argument of decolonisation of traditional knowledge it is important to dwell into more countries to understand the spectrum of global South at a holistic level. For example, Pat Mooney from Canada[19], has been a keen activist against biopiracy and corporate control over genetic resources. Just like the other thinkers mentioned above, he also advocates that there has been marginalisation of indigenous epistemologies.

II. Genericization and colonization of Traditional Knowledge by Global North

The entire genericization process and colonisation of traditional knowledge by Global North has its roots in numerous cases across the world. The most familiar case in India is the Basmati Rice case where RiceTech, a US-based company, tried to secure patent on certain strands of Basmati rice which is indigenous to Indian agrarian system. It took a lot of time for India to wake up to the genericization and how the uniqueness of Basmati was taken over by western companies. Since the colonisation of traditional knowledge was not consistent with the legislative efforts to codify traditional knowledge in India, efforts like TKDL and traditional knowledge acting as Prior Art under Indian Patent law took precedence. There have been numerous legal debates surrounding traditional knowledge to interact with the domain of Geographical Indications as well. At this point, it is important to understand the traditional knowledge has been exploited not only in the form of finished goods but also the very process of utilising bio available resources. For example, the anti-septic properties of Neem have been exploited by colonising TK in manufacturing and selling finished goods by the companies of Global North.

III. Decolonization of Traditional Knowledge through Epistemic Justice

It is important to understand the recognition and validation of indigenous and local knowledge encompassing co-existence of multiple legal systems[20] over and above harmonisation of laws. The understanding of de-colonising the traditional knowledge or its related system insures a form of justice in intellectual property which is vital in a dynamic society as of today. Additionally, Martha Nussbaum extends the capabilities approach[21] to cultural and knowledge justice by emphasizing that access to knowledge and cultural participation are essential components of human flourishing. She argues that individuals must have the freedom and opportunity to engage with their own cultural heritage, as well as access to broader knowledge systems. This aligns with justice by ensuring marginalized communities can develop and sustain[22] their intellectual and cultural contributions without systemic barriers imposed by restrictive IP regimes.

IV. Conclusion – Driving Away or Thriving Within?

The decolonisation of traditional knowledge or the exploitation of traditional knowledge by the Global North reinforces the need to revisit the Traditional Knowledge Bill, 2016 and 2022 specially in context of India. It is important to understand that while a traditional knowledge law may not look like the traditional laws on Patents, Copyrights and Trademarks yet WIPO committee discussions in the regard can help bring more objectivity and elasticity to the bill. While non-codification may look fruitful for a short time, consistent statutory efforts helps polish the legal framework even better. Agrarian reforms and environment concerns can simultaneously run while granting ownership and custodianship rights to those who deserve.