For the necessary background to this policy, please see this post here at SpicyIP. I’ve also done another post here which discusses the “Constitutional” implications of this policy i.e. can the State government legislate in this area, when it appears that the Centre has exclusive jurisdiction. This may be of interest to the members of this blog.
Anyway, we give you Ravi Srinivas and his thoughts on this rather daring policy.
Kerala’s Intellectual Property Policy
Krishna Ravi Srinivas
Kerala has come out with an Intellectual Property Rights Policy. In this blog post I provide a brief critique of the policy. While there is no bar on states on having policies on Intellectual Property Rights (IPRS), that is subject to the constitutional provisions. IPRS are listed in the Central list and the Centre alone is empowered to bring in legislations that govern issues related to IPRS in India. Under Article 246, List I (Union List) contains “Patents, inventions and designs; copyright; trade-marks and merchandise marks” as an item. It is a well settled principle that on items listed in List 1 of Article 246 (Seventh Schedule) of the Constitution the Central government alone can pass laws and frame relevant rules. (e.g. OSMANIA UNIVERSITY TEACHERS’ ASSOCIATION v. STATE OF ANDHRA PRADESH AND ANOTHER [(1987) 4 SCC 671, M.P. VIDYUT KARAMCHARI SANGH v M.P. ELECTRICITY BOARD [(2004) 9 SCC 755] .
India has a Patent Act in place and on Biodiversity and Plant Varieties there are Acts and bodies set up under these to administer the Acts and regulate access and benefit sharing. The move by Kerala government cannot over ride these. But the policy ignores these basics and wants to create a different system of ‘IPRS’ for Traditional Knowledge (TK). This is fundamentally flawed and is not likely to stand judicial scrutiny.
Ayurveda is not confined to Kerala and one cannot demarcate Ayurveda as Kerala-Ayurveda and non-Kerala Ayurveda. Many firms inside and outside Kerala in the Ayurveda sector are medium and large scale enterprises. Traditional Knowledge like any other knowledge has spill over effects and whether it is codified or not, forms a source for research and development. Permanent State sovereignty over natural resources is a well recognized principle in international law but this does not extend to knowledge. The Convention on Biological Diversity also recognizes the sovereign rights over genetic resources but CBD does not explicitly transfers traditional knowledge into the domain of state ownership. Moreover it is not clear as to under provisions of Constitution or any International Treaty or Convention this assertion over TK is made.
Hence the claim made by the state government that it can be deemed to have rights over some portion of traditional knowledge is absurd, to say the least. There is more to TK than traditional medicine. TK includes but not limited to traditional cultural expressions, traditional arts and crafts, and, traditional designs. TK is not static and has dynamism of its own. The policy ignores these facts.
The irony is the policy has come at a time when the IGC (Intergovernmental Committee on Folklore, Traditional Knowledge and Genetic Resources of WIPO) has prepared some guidelines for a misappropriation regime for TK besides model provisions and scholars have examined the possibility of using trade secrets and compensatory liability regime to protect the interests of TK holders. The CBD recognizes the idea of Prior Informed Consent (PIC) and this principle has been accepted as a key principle in protecting the rights of TK holders. Yet the policy has no place for PIC as it decides what rights these TK holders would have.
The scheme envisaged by the state government is unclear on this as it puts forth an ill-defined concept ‘Knowledge Commons’. Knowledge Commons is defined as “Knowledge Commons” refer to the knowledge, which is the collectively produced sphere of ideas and which is left unencumbered for the greater benefit of all”. According to this policy a portion of TK belongs to Knowledge Commons and not to Public Domain.
It specifies no reason as to why Knowledge Commons is a better one, in terms of theory and practice over Public Domain. Unfortunately this policy provides no clarity on the legal status of the Knowledge Commons and the legal principles that underlie this idea. On the other hand Public Domain is a much better defined idea and is well understood in the context of IPRS. Similarly the policy refers to Commons and Commons License without clarifying their legal usage. It is not clear as to whether it refers to a Creative Commons type of license or a version of GPL or to any other form of license.
The policy wants further changes in the Biological Diversity Act and here too it brings in the idea of Knowledge Commons. This will defeat the very purpose of Access and Benefit Sharing (ABS). Why should a prospector opt for ABS if developments based on TK must be put back in ‘Knowledge Commons’? This idea of putting back the developments based on TK into Knowledge Commons is not clear as what is meant by developments based on TK is not specified. Does it mean knowledge or does it include patents also. If it includes patents also what are the rights of the patentees. There is a direct conflict with Indian Patents Act if it includes patents. Such a rule will not be TRIPS compliant.
The left is yet to reconcile to India’s joining WTO and to the amendments to the Indian Patent Act. It views patents and MNCs with suspicion and thinks that evil forces are out there to steal TK and squeeze the livelihoods of those who depend on TK. It has no positive policy on development and utilization of TK and on protecting the rights of TK holders. These are reflected in the policy and thus it reads more like an ideological statement than a coherent policy that is sensitive to the complex nature of the TK issue. State appropriation of TK is no solution to misappropriation by others. In fact it is a solution that is worse than the problem as the holders of TK are disempowered by the state in this policy.
To sum up the policy is based neither on sound legal principles, nor on a pragmatic understanding of IPRS in India. It is based on the fears and misconceptions of the left and on a poor understanding of ideas like Commons, Knowledge Commons and Public Domain.
(The usual disclaimers apply)
The Policy was not made that casually as many interpret. The Concepts like “Knowledge Commons” and “Commons License” were very well studied and deliberated prior to introducing the “Innovative Concept” of “Traditional Knowledge Commons”.
The Terms like “Knowledge Commons”, “Creative Commons” etc. used in the Policy document are very much in line with the fundamental concepts to recognise “Knowledge as Commons”. Here “Knowledge Commons” refer to the knowledge, which is the collectively produced sphere of ideas and which is left unencumbered for the greater benefit of all its “subscribers” and “contributors”. Indeed many of the Digital Libraries are now on their way to becoming ‘Knowledge Commons’.
The “Commons License” concept envisaged in the Policy shall not be confused with the seasoned free software concepts (or open source) and “Creative Commons” licenses like GNU GPL, LATEX etc. which mostly applies to “Expressions” protectable under Copyright. We thought of adopting this concept because it provides for utilisation of the Knowledge for non-commercial purposes. It can also be adopted as tool to prevent private appropriation of Knowledge. To quote Lawrence Lessig, founder of Creative Commons, it is “a culture in which creators get to create only with the permission of the powerful, or of creators from the past”
It is not a kind of compulsory licence, but is a kind of “deemed licence” which normally applies on the user of TK, the moment he decides to employ it for any purpose. Specific provisions for such “Traditional Knowledge Commons License” will be worked out to ensure free, non-commercial reproduction and codification of the Traditional Knowledge. The intention of the proposed legislation is to give effect to such “deemed license” by introducing such provisions directly in the Act rather than leaving it to be governed by agreements/contracts between persons.
Hence the knowledge is revealed for documentation, and enabling further research thereof.
Therefore possibility of patenting of TK and improvement thereon by corporates is obviated.
While the Policy proposes to dedicate TK to “Knowledge Commons”, there is no stipulation that break through inventions like development of a new drug molecule or the process thereof which involves substantial developmental cost need not form part of “collectively produced sphere of ideas” or “Knowledge Commons” in the strict sense though Traditional knowledge may form the basis of its origin.
The State is more concerned about the misappropriation of “Traditional Knowledge” by corporates with minor modifications on such knowledge making it patentable by meeting basic minimum legal standards to qualify the novelty and “inventive step”.
We only expect the improvements in Knowledge to be put back to the realm of “Knowldge Commons”. The Researchers can take out a patent on substantially improved version of TK with the consensus of its right holders.
Well, why should some one pay renewal fee of patents regularly and put it to “knowlege commons”. So we do not expect that someone would put their patent into “Knowledge Commons. This is a flawed concept.
The fundamental question on state
ownership, deemed or otherwise on
traditional knowledge (TK) still remains unanswered.
“The State is more concerned about the misappropriation of “Traditional Knowledge” by corporates with minor modifications on such knowledge making it patentable by meeting basic minimum legal standards to qualify the novelty and “inventive step”.”
If this is the apprehension then
the solutions should focus on
overcoming the ‘problems’ in the patent system, rather than moving towards state (mis)appropriation
of TK.
It is very difficult to say there is no provision under the IPR rigime for traditional knowledge. Only the problem is nobody understood what is this traditional knowledge, it which has come from generations to generations. Can we say that we learnt what our forefathers have learnt. At least they had the wisdom but we lack not only wisdom nor we have left with any tradition. Only the poor those who live in forests and some scheduled cast and Tribes do have some knowledge that too they themselves do not what to do with that, under the present circumstances. Everybody is trying to out smart and get away with some formulations from here and there. Some smart multinationals have hired some people to pirate these also. Once one says it is traditional knoledge coming from ages its value is not there in IP regime, which is valid only for 20 years presently. But formulations as such can go as copyrights, which are limited to only sixty years. What this knoledge is needed is just make the formulations get some IR, UV, and other mass spectra and give the results what they supply to the body, like VitA, B,C,E,K and may be minerals proteins or carbohydrates and the overall energy it can give for serving. There can be any combinations and permutations as nymber of element of the natural product increases. It becomes more and more complex as the number of natural products increases. All this mess is because of making extra money and exploiting the poor and down trodden further by the elite groups for the companies/institutes they work for. From the posts and the flack that I have seen on these Kerala IPR issues I come to conclussions that non of the persons have any competancy to talk about Traditional knowledge. I wonder why either Central or other state governments do not have taken any initiation. Unfortunately Kerala Government has gone to non-professionals in this area and made a mess of it as it has done with TDB and other issues.