Western businesses may hunger for the wit and wisdom of the East, but that shouldn't afford them the right to register an ancient tradition as a Twenty-first Century idea, says Richard Brass.

You can’t beat a few sessions of yoga for bringing you inner calm and serenity. And being calm and serene makes a big difference when you’re a leading yoga practitioner dealing with such day-to-day tasks as talking to your lawyers, swearing affidavits and sending out fat batches of ‘cease and desist’ letters.

The uplifting practice of IP has recently been dragged into the sweaty world of yoga thanks in large to the activities of Bikram Choudhury, one of the most prominent yoga teachers in the US, whose attempt to claim ownership of a number of bendy positions has split the yogic community and ended up in a most unserene legal dust-up.

But Choudhury’s efforts to claim copyright on practices believed to date back 5,000 years is only one instance of a Western commercial concern trying to take ownership of knowledge that has long existed in less acquisitive societies. Whether you know this practice as biopiracy or bio-prospecting depends on which side of the courtroom you’re on, but, whatever you call it, the hunger in the West for wisdom from warmer parts of the world is growing stronger all the time.

And, as Western companies feel the need to look in ever-new regions for products that will give them an edge and local communities grow more prepared to assert themselves, these disputes are increasingly ending up in the courts.

The cases involve some surprising substances. A patent granted in the US for the use of turmeric for medicinal purposes was revoked after a complaint by India’s Council of Scientific and Industrial Research, which pointed out that the spice had been used for healing wounds and rashes for thousands of years. A patent for the use of neem oil as a fungicide was overturned for the same reason, with ancient Indian texts being presented in court to prove quite how non-new this knowledge was.

The patenting in the US of the active molecule in the Viagra-like Andean maca plant has drawn protests from many Peruvians keen to point out that their ancestors were using maca long before North Americans started getting dysfunctional

When a craze for the appetite-suppressing hoodia cactus exploded in the obese West, the San Bushmen of the Kalahari must have been kicking themselves over their failure to take out a patent on the plant they have been using since time immemorial to stave off hunger. And the patenting in the US of the active molecule in the Viagra-like Andean maca plant has drawn protests from many Peruvians keen to point out that their ancestors were using maca long before North Americans started getting dysfunctional.

For a company that may have put big money into searching the world and then conducting intense analysis to isolate the part that actually works, protecting that investment with a patent seems only fair. But for communities that have been using the same substance for generations, it can feel like robbery.

India has decided it just isn’t going to accept it any more. Rather than wait for each case to emerge before conducting a gruelling search of the archives for ancient documentation of traditional uses of grasshopper wings or yak fat, the government has commissioned an immense electronic compendium of the country’s old remedies and practices.

The 30-million-page Traditional Knowledge Digital Library is being put together from all available sources, aiming to lay down every last remedy from the ancient medical systems of ayurveda, unani and siddha. Thousands of texts are being translated from Sanskrit, Hindi, Arabic, Persian and Tamil into English, French, German, Japanese and Spanish, to make absolutely sure that neither the enthusiastic corporate researcher nor the sitting judge can be in any doubt about who got there first.

And among the details being recorded are some 1,500 yoga exercises and postures. So the next time Bikram Choudhury wants to get proprietorial about yoga, he’d better be sitting comfortably and do some reading first. It might not make him any calmer, but it could mean spending a lot less time with his lawyers.

This article first appeared in IP Review, issue 15

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