Some of the press notes suggest that Kerala is attempting to get over the constitutional hurdle by insisting that this is more of a “traditional knowledge” (TK) policy–and less of an “IP policy”. If that is indeed the case, SpicyIP cannot fathom as to why the state government repeatedly refers to this as an “intellectual property policy”, when they know that this is likely to ruffle the feathers of the Centre. Particularly given the fact that the Centre’s “Left” coalition partner is giving it sleepless nights over the nuclear deal.
Secondly, even assuming this is a “traditional knowledge” policy/law, that still does not mean that the Kerala state government is free to legislate on this theme. We explain below:
The Constitution of India envisages 3 lists, as below:
i) The Union list containing subject matter that only the Center (Parliament) can legislate on (contains about 99 items include defence, foreign affairs, taxes etc);
ii) The State list, which only the State can legislate upon (containing 69 items including agriculture, forest, fisheries, public health etc);
iii) The Concurrent list, which both the Center and the State can legislate upon (containing about 52 items including criminal law, marriage, education etc).
Intellectual Property is specifically listed in the “Union List” as Entry 49. However, it is limited to: “Patents, inventions and designs; copyright; trade-marks and merchandise marks”.
Can the Kerala government therefore argue that since “traditional knowledge” is not specifically included in entry 49 in the Union list, it is free to legislate on this theme? Particularly since it also doesn’t find mention in the other 2 lists (State list and Concurrent list).
Not so, suggests Article 248 of the Constitution, which deals with “Residuary powers of legislation” i.e. when the subject matter under consideration does not find mention in any of the 3 lists mentioned above. This article states that the Centre (Parliament) has the “exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.”
Further, a close reading of the policy shows that it implicates the Patents Act (amended upto 2005) and the Biodiversity Act, 2002 , both of which are subject matters on which the Center has legislated. Given that the Center has exclusive competence in the area of patents (part of the Union List) and biodiversity (appears to fall within the residual powers under Article 248), it is clear that the State cannot even legislate on these themes, much less argue that its proposed provisions do not in any way conflict with the Central legislations.
These are my preliminary view on the subject and I am happy to be corrected by Constitutional law experts–do we have any on this list? Having said this, it is indeed surprising that the government of Kerala does not seem to have addressed this issue in any concrete way in its policy. I’m also not sure as to who their “legal advisors” are. It’s rather striking that the country’s top IP academic, Dr NS Gopalakrishnan does not appear to have been consulted on this–a real shame, as he hails from this very state and teaches in a leading law school located in this State!
I hope to speak with Praveen Raj and the others involved with this policy to get a clearer idea on why they thought they could proceed with legislating in this area, when they appear to lack the constitutional competence to do so. No matter how innovative and useful the Kerala policy might be, it will come to naught if it is susceptible to being struck down on grounds of constitutional infirmity.
On a related topic, one of the key members of a recently appointed commission to examine Centre-State Relations is a keralite, Dr Madhav Menon (he is also former director of the Natinal law school, my alma mater). I can hazard a guess that given the political impliations of the matter and he will look closely at this issue. And might come up with creative answers to this rather knotty issue.
Interestingly, the only other time that I’ve seen a State attempt to legislate in a techno-legal area was Chandrababu Naidu’s AP (Andhra Pradesh) government trying to bring about a “data protection” legislation in the year 2003. Apparently, Naidu (known then as the CEO of AP) was keen on drafting this legislation on “data protection” (of the “privacy variety and not the pharma regulatory data kind) to induce more foreign companies to outsource “data” for processing to India. Like the government of Kerala, he was attempting to fill a gap where the Center was refusing to act. Although lack of “data privacy” legislation was cited as the strongest deterrent to outsourcing by many foreign companies, the Centre just didn’t budge. However, unlike the Kerala policy which is premised on this huge distrust of MNC’s and corporates, Naidu’s policy was meant to seduce them into doing business with India.
One of the reasons that Naidu did not push this through could have stemmed from legal advice that the State of AP had no constitutional competence to legislate on an area which fell within Art 248 residual powers i.e. exclusive domain of the Centre.
Conclusion
Scanning through the State list, I found that “public health” was one of the items listed. In other words, States have the exclusive competence to legislate in this area. Given the status of Kerala as a progressive state, perhaps it ought to be legislating on this theme, to ensure that pharma patents do not impede “access”. Or perhaps it might argue that since its “traditional knowledge” policy relates primarily to Ayurveda, it is, in effect, legislating on “public health”. Bottom line: it has to consult with some top notch creative constitutional lawyers to find a way, if it really wishes to push its daring policy through. Would be great from our readers who may have come up with creative “inventing around” techniques that the State of Kerala can deploy to get around this constitutional law bottleck.
Hey Dear friends those who are concerned for this Traditional Knowledge. I also agrre with the serious comments made by those experts in this field. Probably Kerala government wanted to put TK under IPR policy more cleverly, which may put entire Indian constitution into turmoil specially on IPR and TK issues. I do not think so the law department has studied the law of the land approprietly before finalising such important issues, they are in more hurry to do something than in looking the legalities, probably underthey are all mislead. Some of these points I have raise to them thorugh e mail before they finalised it. They also talked about it during the draft policy release but nothing has been in this regard.
We were very particular about calling it “IPR Policy” as it proposes to create property rights on an “intangible” ie “Traditional Knowledge”.
With the advent of TRIPS Regime, rights creation on Knowledge became very common and they are made TRADABLE.(It has a commodity status).
Loop holes exist in IPR legislations that may enable corporates for its private appropriation. It is not that we fear MNCs, but would like to take a precaution. Because “MONEY POWER” matters a lot and hence Corporates can even buy the political will.
Hence We propose to introduce property rights on TK, which can be deemed as an Intellectual Property in a negative sense while all the IPR forms generally provides for protection of “invention” and not “knowledge”.
Unlike other knowledge categories which are mostly deciphered in books or embedded in the biological system, Traditional Knowledge attributes to and forms the basis of livelihoods of many TK practitioners, and hence the absence of any legal property rights on such knowledge may render an opportunity for the private appropriation of the Traditional Knowledge by multi national corporates.
Traditional Knowledge Digital Libraries (TKDL) are not a “complete solution” to prevent misappropriation.
In the words of Mr. M.Vijayakumar, Honourable Law Minister of the State.
“While the codification of Traditional Knowledge in to Digital Libraries is a viable solution to direct misappropriation, it is feared that such digital libraries may serve as a platter for MNCs looking for private appropriation of advancements made on traditional knowledge that is not accessible otherwise”
So the only choice is to create rights on Traditional Knowledge, regulate its access and make its potential right holders aware of their rights.
Hence We propose to introduce property rights on TK, which can be deemed as an Intellectual Property in a negative sense while all the IPR legislations generally provides for protection of “invention” and not “knowledge”. Then why this circus ?
Though “IP” does not include “knowledge” in the strict sense, there are many people who try to get patent over such knowledge as if they have invented it. While “invention” under Patent Law is supposed to be meant as “industrial innovations” alone and not in anyway “ideas”, “knowledge” or “information”, present legislations allow patenting over virtually “anything under the sun” . Many patent attorneys are propagating a message that “idea” is patentable. It is not true
The patent Examiners are not left with any choice other than granting a patent on an “invention” reaching his table “in the form of a document”, if it fits to his logic that it is an industrial innovation and not in the public domain. Many Corporates passess off “Traditional Knowledge” as if it is an invention made by them and many a times it is easy for them to get through the formalities since such knowledge is not sufficiently codified and made available to the Examiner in a searchable database.
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 ultimate aim of the policy is not to protect the financial interests of the TK holders, but the benefit of the Society at large, as in the case of the fundamental concept of PATENTS. . So we do not support the concept of extending “trade secret” protection to TK. Prior Informed Consent also has proven to be a wrong tool to tap TK information form Tribals etc. We are totally against creation of monopoly over knowledge. The proposed “brand name” for TK holders is only the acknowledgment of their “MORAL RIGHTS”
So PUBLIC INTEREST is the Ultimatum, as in the case of PATENTS. So we propose to make ways and means for revealing TK for the great benefit of Society.
Michael says – “Patent systems are not created in the interest of the inventor but in the interest of national economy. The Rules and Regulations of the Patent systems are not governed by civil or common law but by political economy”.
The argument put forward by Mr pravenn raj is not valid enough. it shows his immaturity to understand the law of the land. He got totally confused about TK and IPR issues. The moment oen says it is traditional knowledge ther does not come any IP issue. IP issue comes only in the case of those innovative, non obvious steps that have taken in scientific or technological method/processes/ or products or both. Lete him not handle such delicate isuues, he is totally amature in IPR as well as TK. This article on IPR Policy of Kerala and his unjustifiable justification it self shows thathe does not have respect either for the tradition or for the IP regime.
I’m really sorry to put my harsh comments on Mr. Syed Mohd. Ali here, but understand it is very essential in order to avoid the confusion that may be caused to the readers after reading his comments.
“While I appreciate the maturity of Mr. Syed (seems that he is matured to the maximum extent and reached the saturation), I could not stop laughing at the very poor knowledge of this person on Intellectual Property, TK and IPR. The moment he says that ‘IP issue comes only in the case of those innovative, non obvious steps that have taken in scientific or technological method/processes/ or products or both’, his very poor understanding of IPR is revealed. He thinks that IP is only about ‘Patents’ and ‘Innovations’. I feel pity for him for having posted his comment even without reading my justification on why ‘Intangible Rights Creation is needed for TK'(anybody reading his comments can understand that he did not even read my justification properly).
It is not that I want to expose him, but would want to remind everyone that they should compare their level of knowledge with the world standards before passing silly and foolish comments on an innovative concept put forwarded by a team sufficiently knowledgeable about all the implications of IPR.
I do not intend to put any more arguments on this. But I remember Murphy as saying ‘Don’t argue with fools, they can’t understand the difference’ “
It is not a personal attack from my side. But a valid message to all who wish to contribute for an Intellectual Discussion rather than resorting to unwanted critiques.
I hope that Mr. Shamnad and SPICY IP would dare to post my comment as such… with the same spirit as they showed in posting the comment of Mr. Syed Mohd. I think that “SPICY IP” do believe in Justice.
usual disclaimers apply
I am also sorry to say that you are not the right party to put such issues forward. while the kerala has so many experts, like Justice Krishan Iyer,and othe legal experts and also scientific and technical experts who are working though out India. I too have not seen any suitable justifications from your side. If a say it is IPR policy, we have a National IP policy, there is no need of this. If you say that this comes unders tradional monuments and artifacts it goes under the article what you have put forward for the defence, I am very sorry to say that this does not reflect in the policy that has come out. Then I expect that this is only publicity stunt with ill motives. I am dead sure that you are totally on the wrong side of the main issue. You are totally cheating the Traditional Knowledge holders. is this is Kerala’s tradition. I do not think so. I again put forward that be off these issues before it is too late.
What right does the State have for bringing Separate policy while IPR is being governed by Central Legislations ?
The answer is very simple. India has a federal structure, where State Government is equally empowerd to have its Policy which addresses specific issues pertaining to its culture, geography, people, Biodiversity etc. Kerala IPR Policy 2008 is with regard to protection of traditional knowledge and biodiversity associated with such knowledge,as they attribute to the heritage of this lush green State. But Kerala state does not intent to cross the ambit of Central Policy in respect of IPR as outlined in the Science and Technology Policy, 2003 of the Nation, IPR being a Union Subject. (To the best of my knowledege, there is no seperate National IP Policy apart from what is envisaged in the Science & Technology Policy, 2003)
Through the IPR Policy, Kerala State wish to address its major concern towards protecting its rich traditional Knowledge. State fears that the absence of any legal property rights on such Knowledge may render an opportunity for the private appropriation of the Traditional Knowledge by multi national corporates. State does not intent to place such Knowledge, which is the bread and butter of many in the “Public domain” and hence facilitating its private appropriation by the most powerful MNCs.
We thought that the possible solution could be to create rights for the Traditional Knowledge and make its potential right holders aware of the rights. This may not be the ultimate solution. So we thought of hearing better solutions from thinking people around.
It is a matter of common sense to understand that problems exist with the present arrangements for protection of TK from private appropriation. (Unfortunately Common sense is not common). We expect viable alternate solutions other than what is proposed in the Policy from bloggers of SPICY IP.
Let me believe that SPICY IP has posted the details of the IPR Policy here for enabling a brain storming on this (“rather daring”) Policy with a view to “generate solutions” and “not to precipitate issues”. The Competency of Policy makers were very well evaluated by the State Government prior to assigning them the task. In fact the chief architect of the Policy is Prof. Prabhat Patnaik, a renowned Intellectual and world famous economist.
Needless to mention here that it is a prerogative of the State to have its own Policy. There is no point in unnecessarily arguing on why State needs an IPR Policy.
No comments regarding “Experts from Kerala”,”publicity stunt”, “cheating of TK Holders” and “Kerala’s tradition”. Because “Murphy” reminds me that you need not waste your time.
Let me hope that SPICY IP would encourage creative suggestions, rather than personal attacks and petty issues.
Thanks to Mr. Shamnad and SPICY IP
What right does the State have for bringing Separate policy while IPR is being governed by Central Legislations ?
The answer is very simple. India has a federal structure, where State Government is equally empowerd to have its Policy which addresses specific issues pertaining to its culture, geography, people, Biodiversity etc. Kerala IPR Policy 2008 is with regard to protection of traditional knowledge and biodiversity associated with such knowledge,as they attribute to the heritage of this lush green State. But Kerala state does not intent to cross the ambit of Central Policy in respect of IPR as outlined in the Science and Technology Policy, 2003 of the Nation, IPR being a Union Subject. (To the best of my knowledege, there is no seperate National IP Policy apart from what is envisaged in the Science & Technology Policy, 2003)
Through the IPR Policy, Kerala State wish to address its major concern towards protecting its rich traditional Knowledge. State fears that the absence of any legal property rights on such Knowledge may render an opportunity for the private appropriation of the Traditional Knowledge by multi national corporates. State does not intent to place such Knowledge, which is the bread and butter of many in the “Public domain” and hence facilitating its private appropriation by the most powerful MNCs.
We thought that the possible solution could be to create rights for the Traditional Knowledge and make its potential right holders aware of the rights. This may not be the ultimate solution. So we thought of hearing better solutions from thinking people around.
It is a matter of common sense to understand that problems exist with the present arrangements for protection of TK from private appropriation. (Unfortunately Common sense is not common). We expect viable alternate solutions other than what is proposed in the Policy from bloggers of SPICY IP.
Let me believe that SPICY IP has posted the details of the IPR Policy here for enabling a brain storming on this (“rather daring”) Policy with a view to “generate solutions” and “not to precipitate issues”. The Competency of Policy makers were very well evaluated by the State Government prior to assigning them the task. In fact the chief architect of the Policy is Prof. Prabhat Patnaik, a renowned Intellectual and world famous economist.
Needless to mention here that it is a prerogative of the State to have its own Policy. There is no point in unnecessarily arguing on why State needs an IPR Policy.
No comments regarding “Experts from Kerala”,”publicity stunt”, “cheating of TK Holders” and “Kerala’s tradition”. Because “Murphy” reminds me that you need not waste your time.
Let me hope that SPICY IP would encourage creative suggestions, rather than personal attacks and petty issues.
Thanks to Mr. Shamnad and SPICY IP
I think Mr Praven raj got totally confused about federal structure and autonamy of state. IPR policy is for the entire India. just we have to follow that. There is no need of a separate IP Policy for each and every state until and otherwise The Kerala Govenrment is going to Issue the patents granted confining to Kerala State only. I do not see any logic in the arguments put forward by Mr Praveen In this regards due to above. Just what Keral state requires is structure which can cater to the needs of of scientific institutes and other organisations which are under its preview a patenting drafting and other procedural office confirming to the Indian/International filing of the patent applications.
If it is for the Traditional Knoledge there should be a fascilitating centre which can digitize the knowledge and provide it to the user whom so ever wanted it at amicanle prices or royalty there upon. It the user industry which has bear the cost of standardization for the formulations of medicinal value. The same center also can have all the designs of Traditional value with them as photo’s/artifacts etc. or films can give them to user industry at reasonable rates or royality there upon. I am sorry to state that entire issue has been side tracked. I hope everybody understands the gravity of the issue.
Referring to the Statement of Mr. nikiraja, viz.
” There is no need of a separate IP Policy for each and every state until and otherwise the Kerala Government is going to Issue the patents granted confining to Kerala State only ”
Total ignorance about IPR Laws made him to believe that IPR is all about “Patents” ….. Further State is a “State” and so has policies of its own.
No other comments.
I do not think so that the argument put forward by Mr Praveen raj valid enfough even any further discussion on this Kerala IPR policy issue.
What I feel is what nikyraja and other blogers of IP Spicy specially Shamnad, aysha and mrinalini are valid enough, at this point I request the state goverment to look into this matter more seriously, and take the suggestions more sportively and bring out a better policy for covering all by consultations with Justice VR Krishan Iyer and also with Dr AD Damodaran.
I had a doubt concerning the fundamental right to freedom of expression and relating it to copyright laws.Can you please tell me if this is a practical endeavor?I was looking forward to discussing the US, Indian, Canadian and Australian position on this aspect in an article and I needed some input.Please help