**5. Traditional knowledge and intellectual property rights**

Patent, copyrights, trademarks, trade secrets, geographical identification and traditional knowledge are part of IPRs [26]. The term "traditional knowledge" refers to knowledge, possessed by indigenous people, in one or more societies and in one or more forms, including, but not limited to, art, dance and music, medicines and folk remedies, folk culture, biodiversity, knowledge and protection of plant varieties, handicrafts, designs, literature (WIPO, 2011). 'It is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity' (WIPO, 2000). Traditional knowledge (TK) is integral to the identity of most local communities. Indigenous people, especially in rural communities, use Traditional Medicinal Knowledge (TMK) to maintain their health system [27–30].

The term traditional know-ledge can be categorized into three classes: Traditional Medicinal Knowledge (TMK), Traditional Agricultural Knowledge (TAK) and Traditional Ecological Knowledge (TEK). Indigenous knowledge is a subset of traditional knowledge category, held and used by communities, peoples and nations. Indigenous people, especially in rural communities, uses Traditional Medicinal Knowledge (TMK) maintain their health systems [30, 31].

Traditional knowledge (TK) is integral to the identity of most local communities and its preservation as such is of paramount importance for the community's social and physical environment. This knowledge is an outcome of their connection with local biodiversity that is, plants, fungi, animals, and other endemic biological materials. Traditional societies and communities are responsible for the discovery, development and preservation of a wide variety of medicinal plants, healthy herbal formulations, and agricultural and forest products that are traded internationally and generate substantial economic value. Thereby TK plays an important role in the global economy. Pharmaceutical industries have shown an interest in developing traditional medicines, from many plant species can provide important leads for the discovery of new drugs. An example is the development of the anticancer drugs vincristine and vinblastine from *Catharanthus roseous* (Apocynaceae) indigenous

*Intellectual Property Rights: Bioprospecting, Biopiracy and Protection of Traditional Knowledge… DOI: http://dx.doi.org/10.5772/intechopen.99596*

to Madagascar. Innovations based on TK may benefit from patent, trademark, and geographical indication protection, or be protected as a trade secret or confidential information. Traditional knowledge, on the other hand, which has ancient roots and is frequently passed down orally, is not protected by traditional intellectual property (IP) regimes. Intellectual Property (IP) rights have been claimed over biological resources and/or traditional knowledge (TK) by modifications of known properties [28, 32, 33].

However a few issues pertaining to safeguarding of traditional knowledge and traditional cultural expressions should be addressed as well [30, 31]. It is disturbing to note that keen interest have been shown by researchers from universities and large industries in indigenous plant use today for taking out the patents to profit financially, has opened up the more than hundreds of million peoples living in traditional communities around the world life in jeopardy [30, 31, 34]. While we use the existing patent law system to protect these leading compounds and secure private rights, we must also respect the rights and interests of traditional knowledge owners who offer a "source" for these patents. Moreover, potential of patent derived products from traditional medicines provides an important incentive for pharmaceutical companies, since it creates possible benefits that increase over the period of time and, thus, ultimately, for sharing such information will lead to the betterment of the mankind [35, 36].

Knowledge on indigenous plants in selected areas where the people are using for ages are many times attempted for patent provoked significant condemnation because they are based upon already existing indigenous or traditional knowledge and therefore should not meet the standard of 'new' for the patent grant. Examples of this include patents issued related to the neem tree. The European Patent Office (EPO) revoked a controversial patent on the use of antifungal agents extracted from the neem tree, it sensitize the world against biopiracy [37, 38].

Exploiting traditional knowledge resources for commercial or industrial benefits might prompt its embezzlement and can bias the interests of its legitimate custodians.

In the face of such risks, there is a need to develop ways and means to protect and nurture TK for long term development that befits the interests of Traditional knowledge-holders. The preservation, protection and promotion of the TK-based innovations and practices of local communities are particularly important for developing countries. Their rich endowment of TK and biodiversity plays an essential role in their health care, food security, culture, religion, identity, climate, trade and development [39].

According to the Summary for Policymakers of the 2019 IPBES Global Assessment on Biodiversity and Ecosystem Services:

'Recognizing the knowledge, innovations, practices, institutions and values of indigenous peoples and local communities, and ensuring their inclusion and participation in environmental governance, often enhances their quality of life and the conservation, restoration and sustainable use of nature, which is relevant to broader society. Governance, including customary institutions and management systems and co-management regimes that involve indigenous peoples and local communities, can be an effective way to safeguard nature and its contributions to people by incorporating locally attuned management systems and indigenous and local knowledge. The positive contributions of indigenous peoples and local communities to sustainability can be facilitated through national recognition of land tenure, access and resource rights in accordance with national legislation, the application of free, prior and informed consent, and improved collaboration, fair and equitable sharing of benefits arising from the use, and co-management arrangements with local communities [37, 40].

### **5.1 Protection of traditional knowledge**

Through the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC-GRTF), the World Intellectual Property Organization (WIPO) is trying to prepare a draft of an international legal instrument for protection of TK that allow access to those outside the country/community of its traditional holders. According to WIPO, Traditional knowledge is a living body of knowledge that is developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. WIPO's work on traditional knowledge addresses three domain areas: traditional knowledge, traditional cultural expressions and genetic resources, which are related to each other. Two types of intellectual property protection are being sought for traditional knowledge [2, 39].

#### *5.1.1 Defensive protection*

Which target to prevent people outside the community from acquiring intellectual property rights over TK. Defensive strategies might also be used to protect sacred cultural manifestations, such as sacred symbols or words from being registered as trademarks.

For example India developed a searchable database Traditional Knowledge Digital Library (TKDL) which is an evidence that treatments already used in indigenous system of medicine and ensure that patents are not granted and thus prevent the biopiracy followed by a well-known case in which the US Patent and Trademark Office granted a patent after turmeric. Defensive protection is meant to prevent piracy and application for IP as new inventions. TKDL is a prime example of a measure for defensive protection [2, 38, 39].

#### *5.1.2 Positive protection*

It empowers the communities for granting of rights to promote their traditional knowledge, control its uses and benefit from its commercial exploitation. Some uses of traditional knowledge can be protected through the existing intellectual property system, and a number of countries have also developed specific legislation [39].
