Firstly, the State list (List 2) speaks about “trade and commerce” (Entry Number 26). In other words, the various states in India have exclusive jurisdiction to legislate on matters relating to trade and commerce within the state (however, in so far as inter state trade is concerned, the Centre has exclusive domain). Kerala could argue that its regulation of traditional knowledge falls within the broad ambit of “trade and commerce”.
The nexus between “trade” and IP was established years back with that much bandied about international instrument that goes by the name of TRIPS. Moreover, the Indian ministry in charge of IP calls itself the Ministry of Trade and Commerce.
Secondly, list 3 (Concurrent list–over which both the Center and State can legislate) contains an entry (Number 42) that states: “acquisition and requisitioning of property”. Given that the Constitution of India includes intangibles such as shares within the definition of property, it is easy to qualify any form of “intellectual property” as “property” within the meaning of the Constitution. Particularly, since Justice Sinha has already held so (that “copyrights” are “property” under Art 300A of the Constitution) in a recent music- copyright judgment that we blogged about here.
Kerala could therefore argue that by creating specific property interests/rights in traditional knowledge (in itself and in various families/communities), it is in effect legislating in relation to the “acquisition” of property.
Both these are not sure shot arguments–but well worth a try. In any case, as we advised in the last post, the State of Kerala should immediately begin consulting with constitutional law experts to find a way out. From the present language, it is clear that the policy, as currently drafted, has had minimal input from lawyers (some may of course see that as a “positive”). One hopes that when this is to take final shape as a “bill” to be cleared by the state legislature, all these rough edges are ironed out.
Any of our readers have any advice for the State of Kerala in this regard?
ps: My heartfelt thanks to Swathi Sukumar, Senior Associate, Anand and Anand for pointing me to some of the above arguments.
Thanks to SPICY IP and Mr. Shamnad for deliberating on the Constitutional validity of legislating on TK.
We had Infact scanned through the State List and Union List prior to finalising the POLICY.
It was a great relief to learn that the words like “Traditional Knowledge”, “Intellectual Property”, “Biodiversity” etc. did not find specific mention anywhere under Union list, and the Entry 49 is limited to: “Patents, inventions and designs; copyright; trade-marks and merchandise marks”.
Then We took refuge in a logic that rights exist on Traditional Knowledge (TK) as per “Common Law” and its ownership is attributable to the State/Crown, given the fact that TK is an accumulated traditional wealth and the long kept preserve of its practitioners, tribal communities and families, wherein all of them acted as deemed “trustees” of the State/Crown. So Traditional Knowledge is very well a “treasure trove” (Item No. 44 of State list), where the State has power to legislate.
I Invite SPICY IP to post this “treasure trove” point for opinion formation among constitutional experts.
As SPICY IP has pointed out, Item No. 26 of State List can be used to regulate Trading of “Knowledge”. Item No. 64 provides for enforcement of punitive mechanisms.
Similarly Item No. 7 (Contracts) of Concurrent list and Item No. 6 (Transfer of Property) also will be utilised.
In abstract, the the proposed legislation is ‘not for creating rights on TK’, but for assigning those rights to those “deemed trustees”, in return of their willingness to put the TK to the realm of “Knowledge Commons”
AS SPICY IP has pointed out Article 300A covers intellectual property also.
Article 304(b) and Article 19(6) gives added advantage to treat TK as a Property and hence regulate its Trading
The proposed legislation does not intend to touch the patent Act at all, it being a Union Subject. But a few provisions in Biodiversity Act (made using the residual powers of Central Government) needs to be supplemented with additional provisions, but employing the provisions of Articles 258A and 258 (2).
The Policy makers also intend to give value to the State directives under Article 38, 39 (b) and 39(c)
“Then We took refuge in a logic that rights exist on Traditional Knowledge (TK) as per “Common Law” and its ownership is attributable to the State/Crown, given the fact that TK is an accumulated traditional wealth and the long kept preserve of its practitioners, tribal communities and families, wherein all of them acted as deemed “trustees” of the State/Crown.
In abstract, the the proposed legislation is ‘not for creating rights on TK’, but for assigning those rights to those “deemed trustees”, in return of their willingness to put the TK to the realm of “Knowledge Commons”
When I read these I thought of a famous poem by Brecht
The Solution
After the uprising of the 17th June
The Secretary of the Writers Union
Had leaflets distributed in the Stalinallee
Stating that the people
Had forfeited the confidence of the government
And could win it back only
By redoubled efforts. Would it not be easier
In that case for the government
To dissolve the people
And elect another? “
Bertolt Brecht