Kerala’s IP Policy: Innovative But Deeply Flawed

Break with tradition

Kerala recently unveiled a rather unconventional ‘traditional knowledge’ policy — set to be one of the few such legislations in the world. Essentially, it seeks to regulate ‘traditional knowledge’ within the state of Kerala — by inter alia providing for some form of ‘property rights’ over this body of knowledge.

All kinds of ‘traditional knowledge’, including that which is exclusive to families/communities, are part of a ‘knowledge commons’ and can be freely used (under a ‘commons license’) for non-commercial purposes by any non-corporate entity. However, family/community-owned knowledge would need to be verified and registered with a state authority. Most interestingly, the policy envisages an open source model, where anything created/invented using such traditional knowledge flows back to the common pool of traditional knowledge.

This move to legislate on traditional knowledge is a very bold, non-traditional move. Oddly enough, India and other developing countries despite having raised the issue globally and expecting the international community to readily accept it, have not so much as worked out a domestic regime in this regard. One must remember that TRIPS, a legislation mandating uniform IP standards, was shoved down the throat of many unsuspecting developing countries only after its developed country proponents had carefully crafted their own domestic regimes.

Given that the Centre has failed to come up with any traditional knowledge policy/legislation for many years now, Kerala may have decided to take matters into its own hands. However, given constitutional law bottlenecks (the Center seems to have exclusive domain to legislate in this area), the state ought to be very careful in how it goes about drafting this legislation. Illustratively, if the thrust is on ‘trade’ of traditional knowledge products, it could well claim exclusive competence under entry 26 of the state list.

Although the broad principles underlying the policy appear robust, some of the finer points need further thinking through:

1. First, in the case of community/family owned traditions, one has to ask: does this policy offer sufficient incentives for these families/communities to disclose their closely held (and in most cases, almost ‘trade secret’ like) knowledge. Consider the implications of such disclosure. The policy provides that such knowledge can be freely used for non-commercial purposes by all Kerala residents. Given that a number of traditional knowledge and associated products often translate to ‘home remedies’ (consider grandmothers’ remedies involving the mixture of various herbs), would a family/community consider risking such disclosure?

2. Secondly, there is a complete bar against patenting any “improvement” or other advancement of such knowledge by either the community or any of their licensees. Rather, in a scheme that resonates with the open source licensing movement, any improvements made using that knowledge have to be ploughed back to the ‘knowledge commons’, a term much bandied about.

Here again, would families or communities that desire to work with industry to capitalise on their closely guarded knowledge subject themselves to such restrictions, knowing that an open source approach may make the deal a bitter one for the industry?

Even so, this open source concept is obviously innovative and likely work well at least in terms of traditional knowledge that does not belong to any community in particular, but to Kerala in general.

3. These forms of knowledge, over which no particular community can stake claims, the state of Kerala becomes the de facto owner and regulator. Given that some of this knowledge, such as Ayurveda is not just confined to Kerala, how can the state arrogate to itself all rights over it? Consider the case of the Kanis and their now internationally famous anti-fatigue berry, arogyapacha; this tribal group is not confined to the state of Kerala, but extends over to the state of Tamil Nadu. Would the Kanis on the other side of the fence face prosecution, if they grow and use arogyapacha?

4. A related question arises: in what manner does this policy purport to create liability for violators of the law? Would its jurisdiction extend to violators from outside the state of Kerala? Or from outside India? Once the traditional knowledge register is open for public inspection, nothing prevents a third party from outside the state of Kerala from inspecting, using and patenting such developments?

5. A strong anti-industry sentiment pervades the policy. And in order to take care of potential misuse of traditional knowledge by corporates/ MNCs, the policy takes the easy way out: in most cases, corporates (medium and large enterprises) are barred from using the knowledge. In fact, it goes to the extent of preventing corporates that had been using traditional knowledge so far, from further using it. In a time when even communist governments in China and West Bengal appear to be courting industry, does this deep distrust augur well for Kerala?

6. The policy assumes that state control over traditional knowledge is the best form of regulation. There is enough literature to suggest that ‘nationalising’ resources in the name of some form of common heritage/interest has a troubled legacy. The policy plans at least two different statutory bodies, one of them having ministers as members. Will this excessive political interference not prevent the blossoming of a policy that that is otherwise a strong and innovative one? Rather, should not the policy be looking at creating relatively autonomous institutions?

Conclusion

It is important to appreciate that the intent is laudable and the policy innovative. However, unless some of the knotty issues explored above are resolved and the various creases ironed out, this farsighted policy may suffer in its final implementation.