At the inaugural of the Two-day National Seminar on “Intellectual Property Rights” jointly organized by Kerala State Council for Science, Technology & Environment, Patent Office Chennai and National Institute of Intellectual Property Management, Nagpur, the Law Minister Mr. M. Vijay Kumar declared that the State is going ahead with making a legislation for “Traditional Knowledge Protection” as committed in the “IPR Policy of Kerala”.
Keralas’ so called ‘IPR policy’ has come under much flak for stepping on the Centres’ mandate and suzerainty to legislate on issues pertaining to IPR.
We at SpicyIP ran several posts elucidating on the constitutional conundrum this may cause and suggested a way out of this. While the spirit and intent to protect TK is definitely laudable, the definitional hurdle is likely to detract form the purpose. Readers and the policy makers alike may recall Shamnads’ post wherein he had suggested that the Policy be recast and christened as the TK policy. Simple measures that could go a long way towards achieving the end.
However the Kerala Government continues to stick to its IPR stance, pronouncing that in the absence of a National IPR policy and the distressing exigency of misappropriation of its TK assets, it is compelled to take the matter in to its hands. As they say, a little attention does no one any harm and the State is getting more than its fair share of attention and limelight. The political underpinnings to this whole issue cannot be ignored however noble the cause.
The Minister whilst addressing this forum used this opportunity to defend the States position on this
“Many people are asking us on why the state government repeatedly refers to its policy as an “Intellectual Property Rights Policy, while it seems to be more of a “traditional knowledge policy’. The State is very much concerned about protecting its rich traditional wealth, comprising of Traditional Knowledge practices, tribal medicines. Ayurveda practices and biodiversity, which attribute to and form the basis of livelihoods of many Traditional Knowledge practitioners. In the absence of any legal property rights Traditional Knowledge may be appropriated by private businesses. Codification of Traditional Knowledge into Digital Libraries is not a complete solution to misappropriation. Kerala IPR Policy proposes to create Intellectual Property Rights on Traditional Knowledge and so we wanted to call it IPR Policy”.
W agree with you Honorable Sir that the TKDL is but one of the many initiatives aimed at protecting to TK.Nonetheless this argument still does not validate the use of the terminology IPR. ABS (Access and Benefit sharing) PIC (prior informed consent) provisions all of them are key constituents of any TK initiative. These are contractual obligations entered into between the TK stakeholders. Applying the same logic, I am left to speculate whether the State would venture forth to call the legislation the Law of Contracts should the situation arise.
A cautious caveat to the statements, he further added
The IPR Policy is neither a legal document nor a position paper giving an exhaustive statement of the position of the Government of Kerala on basic IPR issues. It’s simply the government’s approach once certain selected issues of practical importance for Kerala in the context of new IPR regime. The legislation will have to come out of it, but only after a careful consideration of the State Government’s constitutional powers in the matter. The legislation planned by Kerala State does not intend to interfere with any of the provisions of Patent Act at all, it being
a Union Subject.
Anyways as the old Chinese proverb goes,’ it’is alright to sharpen the axe before cutting the tree. It is commendable that the State has been a trend setter for the TK process and the other States could look towards Kerala for inspiration to implement a similar exercise.
Bouquets and brickbats where due- The conceptual constructs of the policy is both systematic and holistic. It not only adheres to policy requirements but is also setting up an umbrella mechanism to oversee IPR administration in the State. Perhaps the most laudable initiative to introduce IPR education in the School syllabus. Creativity in the cradle and awareness of rights when young goes the maxim!
That said however recasting and improvisations seem imminent.
I belong to the Scientific Community …. and was a participant of the said National Seminar. In fact the Law Minister’s Speech was a historic one.
While I appreciate SPICY IP and Aysha Shaukat for the above post, I would like to invite the attention of SPICY IP readers to a few comments of Aysha, which emanated from the partial understanding of the subject matter. I thought of defending the Minister here, as I could interact with the Minister and the Intellectuals behind this Policy during the seminar.
Aysha says “Keralas’ so called ‘IPR policy’ has come under much flak for stepping on the Centres’ mandate and suzerainty to legislate on issues pertaining to IPR”.
Minister made it very clear in his speech that the present venture should not be misinterpreted as the enthusiasm of the State to step on the Centre’s domain; but an attempt to bring the issue to limelight. As he said in his speech (not reported by SPICY IP)we are sending a message to the world as to the “right tools” for the protection of TK.
I would like to remind Ms. Aysha that, “TK as a SUBJECT” is being found included in IPR Seminars all over the world. (Even in the National Seminar in Trivandrum, there were two sessions exclusively for TK). WIPO also gives enough importance to TK. So the present global scenario accepts TK as part of IPR Regime. So there is no point in unnecessarily debating on the title of Kerala’s IPR Policy.
As i understood from the Seminar, Kerala State has come out with the new concept of “Traditional Knowledge Commons”, “Commons License” and “Rights creation on TK” after understanding very well that the existing mechanisms like “TKDL formation”, “Access and Benefit Sharing” and “Prior Informed Consents” have proven to be ineffective in making the TK available for “further research” while preventing its misappropriation in the present form.
Restricting Access to TK is something like providing “trade secret protection” to TK holders. Benefit sharing and Prior Informed Consent are like buying TK from TK holders. Kerala’s IPR Policy takes a different stand, that knowledge is not the “property” of some TK holders. However they shall be given “Some rights” and “Not all rights” (Creative Commons Concept), they being the preservers of the knowledge.
Minister’s speech had all this hints. He said – a)We want to defend any attempt to “Create monopoly” over Knowledge b) We are against extending “Trade secret” protection to TK c) We want to prevent misappropriation of TK and “trading of Knowledge”
d) While Digital Libraries are very much essential, they are not the complete solution to misappropriation e) The possible solution could be to create rights (some rights)for TK holders and make them aware of their rights
and f)The access to TK shall be through subscription to “Knowledge Commons”
How can a Minister justify the stand of his Government more than what he did with his speech. It is not practicable for a Minister to include so much of technical stuff in his speech.
What i understood further from the deliberations in the seminar, was that the Government wish to incorporate TK license provisions directly in the Act and hence making the “Commons License” as a “Deemed License”.
So Ms. Aysha should have read the Minister’s speech completely before posting the below comment (It might be that SPICY IP did not get the full text of the Speech)
“We agree with you Honorable Sir that the TKDL is but one of the many initiatives aimed at protecting to TK. Nonetheless this argument still does not validate the use of the terminology IPR. ABS (Access and Benefit sharing) PIC (prior informed consent) provisions all of them are key constituents of any TK initiative. These are contractual obligations entered into between the TK stakeholders. Applying the same logic, I am left to speculate whether the State would venture forth to call the legislation the Law of Contracts should the situation arise.”
While I appreciate the support of SPICY IP being extended to the Kerala State’s venture, I felt very sad that SPICY IP under-estimated the wisdom of Kerala Law Minister and the “brains” behind the Policy.
I was also happy to hear from Minister that “Kerala Govt.” is going set up a “Mission IPR” under Law department with an aim “to make the State IP Savvy”.
Mr. Praveen Raj, one of the key brains behind the IPR Policy told while delivering his Lecture on “Patent Drafting” that …. ……. “Finally the Scientific Community in Kerala succeeded in buying the ‘Political Will'” and he quoted the Law Minister as saying……… “For Our Government, Policy Statements are true commitments. So there is no question of going back from implementing the declarations” ….
All the best for the IPR Boom in Kerala. I request SPICY IP to bring my points to the attention all its readers. Let us help thisventure with creative thoughts.
A researcher from Kerala Agricultural University
Thanks a lot to SPICY IP for intitiating a discussion on the proposed Legislation on TK (mooted by Kerala Government).
An article from Mr. Shamnad published in Indian Express raised many questions of Practical relevance.
http://www.indianexpress.com/story/331482.html#
So I thought I can share my views on framing the legislation on TK (I have already brought them to the attention of Law Minister’s office.)
Let me put some background information first
The IPR Policy proposes to commit all traditional knowledge, including traditional medicines, the practice of which sustains livelihoods of many, to the realm of “Knowledge Commons” and not to the “Public Domain”. All the right holders will be deemed to be holding their rights under a “Commons License”, wherein the right holders shall permit others the use of the knowledge in their custody for non-commercial purposes. It is further stipulated that any development made using this knowledge licensed under the above obligation should be put back to the realm of “Knowledge Commons”, say “Traditional Knowledge Commons”, and hence denying the scope of patenting thereof.
The intention of legislation is ‘not exactly the creation of rights on TK’, but for assigning some of the rights (not all the rights) owned by the State (assuming that it is the property of the State) to those “deemed trustees” (TK Preservers), in return of their willingness to put the TK to the realm of “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” refers to the collectively produced sphere of “Traditional Knowledge”, which are accumulated and preserved by the “knowledge custodians” (who acted as the “trustees” of the State) and left unencumbered for the greater benefit of all its “Contributors” and “Subscribers”.
This 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”. The fundamental concept of “Creative Commons” [some rights reserved and not all rights reserved] has been adopted because it provides for utilisation of the Knowledge for non-commercial purposes.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 can also be extended as a tool to prevent private appropriation of Knowledge.
The proposed “Commons License”, 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. Provisions for such “deemed license” will be worked out to ensure free, non-commercial reproduction and codification of the Traditional Knowledge. The proposed legislation intents to give effect to such “deemed license” by introducing specific “contract provisions” of the licence directly in the Act rather than leaving it to be governed by agreements/contracts between persons.
The Traditional Knowledge holders are obliged to subject the TK under their custody for the non-commercial purposes of all. Hence the knowledge is revealed for documentation, and enabling further research thereof. Under this arrangement the TK custodians are required to reveal their TK to the pool of “Knowledge Commons” and not to “Public Domain”. If any commercial use of the traditional knowledge is to be made by any entity other than the “Knowledge Custodian”, the terms and conditions for such license will have to be negotiated between the “Knowledge Custodian” and the said potential user. As a recognition of the “moral right” of the “Knowledge Custodian” to associate such unique practice with their identity, such custodian will be entitled for a brand name representing such practice.
In respect of such Traditional Knowledge, where it is the livelihood of numerous practitioners strewn across Kerala, State will be deemed to have “all the rights” over such Traditional Knowledge. Even though State holds the “complete ownership” on such TK, all the actual practitioners of this Traditional Knowledge will have an autonomous license (license of right) for commercial use from the State. But these Licensees are not empowered to transfer their rights of commercial use to anybody else, and right for transferring licenses will solely be enjoyed by the State, i.e. the right holder.
Creation of rights and obligations necessitates a Governing Mechanism for acknowledging the right holders, enforcing the rights and recommending legal action against the violators of the rights and “Common License”. Therefore the Policy advises to constitute a body called Kerala Traditional Knowledge Authority (KTKA), with which the right holders will have to be registered. KTKA will give general notice to the public, regarding all applications being made to it by practitioners in order to invite Public for bringing to the attention of KTKA, any disputations of applicant’s claims or challenges to claims of uniqueness, prevalence of similar practice in more than one location or community etc. After scrutinizing all such cases of disputes and after resolving the issue of ownership/possession, that KTKA would finally register a community/group/individual as “Knowledge Custodian”of such unique set of TK practices.
The details above are regarding the general principles of the proposed legislation, as envisaged by the IPR Policy.
But the question here is on How to implement these principles effectively.
Please read below my suggestions…
KTKA will study the affidavit of the “Knowledge Practitioners” and “counter statement” of Opponents in detail and will give an opportunity for them to be heard before deciding the issue of Ownership/Possession. The hearing will be held in a closed chamber. KTKA Chairman shall present a detailed report before the parties and invite their arguments. Copies of the documents will be distributed in “paper form” to the parties and will be destroyed at the end of hearing process.
“Knowledge Custodians” shall form a “Knowledge Trust” depicting a “brand name” for their unique TK practice and hence register it with KTKA to serve as the body on which the rights are entrusted.
A digital library comprising of minimal information of “TK in the possession of Custodians”, details of TK custodians etc. will be created by KTKA to serve as a platform for public opposition, defence etc. The “Traditional Knowledge Register” of KTKA also will be laid open to Public. The complete details of the Traditional Knowledge will not be revealed to the Public, but only to the “Knowledge Subscribers” holding a valid “Subscriber Certificate” (affixed with hologram) issued by the “Knowledge Trust” and governed by “Commons License”. However a comprehensive volume of TK will be made available to Patent Offices as a “Confidential Copy” with a request to treat it as “Prior Art” under “Public Working”.
Every “Subscriber Certificate” shall have a unique “Subscription Number” and such Certificate shall serve as a proof for their status as “Knowledge Subscriber”. “Knowledge Trust” may also ask for a “Security Deposit” for issue of the “Subscriber Certificate”. Any receipant of the “Knowledge” shall bear the burden of proof to prove that the “Knowledge” (Property) is not stolen, unless he holds a valid “Subscriber Certificate”.
“Knowledge Trust” shall issue the “Subscriber Certificate” only after verifying the good intention of the “Knowledge Subscriber” subject to the condition that such “Subscriber Status” will continue as long as the “Knowledge Subscriber” acts in good faith and the “Subscriber Certificate” is terminable by “Knowledge Trust” under suspicious conditions including any attempt to patent such Knowledge. “Knowledge Subscriber” status will be void if the improvements made on Knowledge is not put back to the realm of “Knowledge Commons”.
“Knowledge Subscriber” will have the right to make copies of the knowledge, conduct research, modify it etc.., but no right to distribute the knowledge or transfer their right of using the knowledge. Any one seeking the status of “Knowledge Subscriber” shall be directed to the “Knowledge Trust”.
It is also important that the stake holders be made aware of protecting the rights conferred to them from potential usurpation. Therefore all such stake holders would be advised to join together and form “Knowledge Societies”. ‘Traditional Knowledge Users’ Co-operatives” also will be encouraged in the legislation.
“Knowledge Subscribers” would be elevated to the status of “Knowledge Contributers”, the very moment they report to the “Knowledge Trust”, the improvements made on the TK and confirm that such improvements have been made an integral part of “Knowledge Commons”. Eventually their eligibility to join “Knowledge Society” is established by such action. “Knowledge Contributors” may also seek the status of “Knowledge Confederate” from “Knowledge Trust” and they shall be made a member of “Knowledge Trust” if their claim for “Knowledge Confederate” is approved by “Knowledge Trust”. “Knowledge Confederates” will be eligible for benefit sharing.
Though the Policy envisages to put the developments made on Traditional knowledge back to the realm of “Knowledge Commons”, path breaking inventions like development of a new drug molecule or the process thereof which involves substantial developmental cost need not form part of “Knowledge Commons” in the strict sense even if Traditional knowledge may form the basis of its origin. Only the improvements (mostly minor) in “Traditional Knowledge” is expected 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 “Knowledge Trust”.
The ultimate aim of the legislation 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.
I request SPICY IP to post these points, so that a wide-range of discussions on the above would be piloted by the move, which may help the Law Makers.
Dear Mr. Anonymous,
Thank you so much for your comments. Find below clarifications in seriatum on the points raised by you
Whilst extending the benefit of doubt to the intention behind enacting the policy, it is a irrefutable fact that the policy infringes upon the mandate of the centre. Merely denying the obvious and issuing statements to the effect does not obviate the gaping legal lacuna. This is well substantiated in our earlier posts by lucid legal reasoning and argument. Also the key reason why we’re having problems legislating on TK is because it doesn’t fit well within IP concepts. IP is meant to protect the “new”, whereas TK is “old.
We have offered workable suggestions in our earlier post where Shamnad suggested that if this policy is recast as a either public health or trade and commerce based initiative the IPR barrier could be circumvented and the policy could reasonably ensured of a smooth passage. It is rather apparent that this has only fallen on deaf (or stubborn ears) perhaps due to faulty understanding of the subject matter leaving the policy in clearly assailable territory.
I would like to point in the direction of other TK legislations for your benefit and study. Most if not all of them are called TK legislations. It indicates a paucity of knowledge and inadequate study of the subject matter to call this the IPR policy. IPR is but one aspect of TK. Denying the importance of having an ABS in place is sheer ignominy. I am both compelled and appalled enough to stub this statement. I would in this context bring to your notice the efforts of the august international forum as found in the Bonn mandate that emphasizes in consensus the importance of having an ABS in place. Calling the ABS mechanism as ineffective attacks the very fundamental tenets of protecting TK and undermines world efforts in this direction.
It is our endeavour at Spicy IP to enable objective, practical and politically feasible policy formulation in a larger interest perspective. We have merely highlighted areas of the policy that require deliberation. Posting speeches and policy drafts in toto is not required of us as we are not a government body handling press releases or wish to come across as spokesmen of the government.
The entire policy and Speech was made available by Mr. Pravin Raj and it was after careful study and perusal of the text that we carried our posts and suggestions. In fact Mr. Raj in an uncannily similar style and expression such as yours made comments to our earlier posts.In fact going by the content and style we are led to believe that it could well be Mr.Pravin Raj himself writing the post as Anonymous, activity that is not quite appreciated.
Again as we have in the past mentioned –making strident counterarguments and opting to act as ‘anonymous’ does not add up to a healthy open debate. It is a classic case of the ostrich syndrome. We would appreciate if readers reveal their identity when articulating strong scathing comments. We wish to engage and encourage a constructive transparent debate.When posting as ‘anonymous’ sometimes it makes it difficult to understand your point of view as we do not know your background. When we sift through comments it is important to know whether it is the coterie speaking or if it really is populist speak
Thanks once again.
Aysha
Dear Aysha, Shamnad and SPICY IP Readers,
It is too bad that Aysha is suspecting me as the “Anonymous”.
Mr. Shamnad, you know me very well. I always respect SPICY IP bloggers for creative suggestions. But the above post by Aysha is too bad as it makes unnecessary speculations and personal references; and there is no creative contribution.
The only mistake probably committed by me is that I kept on mailing Shamnad about the recent happenings in Kerala; the latest in that series was the full text of Speech by Kerala Law Minister.
Now let me seriously think on whether to continue my services to SPICY IP.
The above post from Aysha is very painful.
I request the Anonymous to reveal his Name.
Thanks
R S Praveen Raj
My quick 2 cents
1,Is there a consensus among
those whose responsible for this
policy on its legal status.
2,Mr.Praveen Raj has been writing on this policy explaining the various aspects.Are they expressed
in his personal capacity or in any
official capacity.If he is expressing them in any official capacity I am interested in knowing
whether the government of kerala
has come out with a legal memorandum or order explaining
the various aspects of the policy
and the rules framed under the
policy as described by him and if so is it available in the official website of the government.
3,Has the policy already come to
effect and if so has any orders
have been issued under it for
implementation.
Dear Ravi Sreenivas,
The Policy has already come into force.
Apart from what is explicitly mentioned in the Policy document, Whatever I have posted here are in my personal capacity as it is already mentioned against my comments.
Thanks