A significant part of TRM has been disclosed as a result of codification (that is, formalization in written form), wide use, or through collection and publication by anthropologists, historians, botanists or other researchers and observers (Koning, 1998, p. 270). The longer TRM knowledge has been around, the more likely it is to have been disclosed through use and publication.
The codified TRM tradition consists of medical knowledge with sophisticated theoretical foundations (Shankar, Hafeel and Suma, 1999, p. 10). The Ayurvedic system of medicine is a particularly good example, as it is codified in 54 authoritative books. Codified TRM has been made publicly available and, hence, under current IPRs rules, could not be appropriated, either by its traditional holders or third parties.
As indicated previously, non-codified systems include what have been termed “folk”, “rural”, “tribal” and “indigenous” TRM, which has been handed over orally from generation to generation. Such systems of medicine, are generally based on traditional beliefs, norms and practices based on centuries old experiences of trials and errors, successes and failures at the household and community level. These are passed through oral tradition and may be called “people’s health culture” (Balasubramanian, 1997, p. 1)
However, there are cases in which TRM is and has always been kept secret. In specialized areas, such as knowledge dealt with by bone-setters, midwives or traditional birth attendants and herbalists, including knowledge of healing techniques and properties of plants and animal substances, access is restricted to certain classes of people (Koon, 1999, p. 158).
In Kenya, for instance, a study on herbal medicine showed that most of the herbalists interviewed maintained the secrecy of their knowledge:
“In Kenya, among the members of the Kikuyu community, indigenous knowledge in some fields was a well guarded secret. For instance a person who had acquired special skills as a black smith would not allow just anybody to walk into his workshop and watch him make such instruments as spears, pangas, diggings hoes, etc. The skills of making such instruments were carefully guarded. Such a person would only train his son or a very close relative. The same case applied to herbalists. An intruder was always heavily fined in order to deter any attempt to steal such knowledge. The problem with this type of system is that such important knowledge was owned by and confined to a few family members and rapid development on innovations was hampered by secrecy” (Muchae, 2000, p. 6).
While prior disclosure of TRM will in many cases prevent the acquisition of IPRs, notably patents, not all TRM may be deemed as disclosed and lacking novelty for the purpose of IPRs protection.