"TRADITIONAL KNOWLEDGE" IN KERALA : GOD’S OWN "OPEN SOURCE" POLICY?

Kerala

But first, a few words about Kerala: a state commonly reputed for its heady mix of communism, high literacy [a typical tea stall owner can chat you up on the latest happenings in the White House] and the highest per capita consumption of alcohol. All of these factors mix together to give us one cocktail of a state that reputedly has the highest suicide rate in the country. Oh–and lest I forget: with pristine beaches, luscious forests and some of the most delectable seafood, it is a paradise for tourists too. Sadly however, humility is not a virtue in this land which calls itself “gods own country”. And in case you’re wondering as to where this impressive body of knowledge about a tiny state came from, I happen to hail from here.

The Policy: Key Highlights

In essence, the controversial Kerala policy seeks to regulate “traditional knowledge” within the State of Kerala–by interalia providing for some form of “property rights” over this body of knowledge. Since such knowledge is by definition”old”, it does not fit well within the traditional IP categories such as patents, copyrights etc, warranting the adoption of a new legal/policy instrument to protect it.

The policy begins by expressing its utter disgust at the rampant exploitation of traditional knowledge by MNC’s/corporates, without any benefits to the communities that own it. A sentiment shared by the Union of India, that has spent millions of rupees in the past invalidating patents based on such knowledge (recall the Neem and Turmeric controversies). More recently, the Centre has been engaged with creating a traditional knowledge digital library (TKDL), a database that will serve as “prior art” against any move to register patents based on such knowledge . To the best of my knowledge, the government is yet to open this database up to any of the patent offices worldwide. I wonder what the bottleneck might be? Anyway, the above strategies pursued by the Central government are what are commonly labeled as “defensive” approaches to traditional knowledge.

The Kerala government however goes one step further and “offensively” attempts to create property interests around this knowledge, as would enable an active leveraging and use of this knowledge by communities within Kerala. In essence, such an approach aims to engage proactively with TK owners/users in order to facilitate use of such knowledge and bring in more rewards for the communities that nourish it.

The policy draws a distinction between “family owned” or community owned traditions (that more or less constitute “trade secrets”, such as the Kottakal Arya Vaidya Sala “massages”) and other kinds of traditional knowledge that are not specific to any community, but used within the length and breadth of Kerala. We discuss these in turn.

Family Owned Traditions

In the case of community/family owned traditions, the families/communities have to make out a case for the entry of such rights into a register, administed by a body specifically created for this purpose called the KTKA (Kerala Traditional Knowledge Authority). The said claim would be registered, only after it is thrown open to the public for opposition etc. This scheme works pretty much like our GI (Geographical Indications) Register. Except that, in the case of GI, one need not worry about the “trading” or other misuse of GI rights, as only those from within that community/geographical area are permitted to use the indication in question.

In the case of “family” or “community” owned TK, the family or community that is on the register own the rights to such TK and are free to deal with them as they please. Except that 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 reminiscent of the open source licensing movement (and to some extent, even the creative commons license movement), the policy stipulates that any improvements made using that knowledge has to be ploughed back to the ” knowledge commons”, a much bandied about term. Readers may recollect the usage of terms such as “commons” in Garett Hardin’s property classic “Tragedy of the Commons” and in Rebecca Eisenberg’s intellectual property classic “Tradgedy of the Anti-commons”.

The implications of subjecting this newly created property to the “knowledge commons” is that it can be freely used (under a “commons license”) for non commercial purposes by any non corporate entity. However, as noted earlier, it cannot be patented by anyone, notwithstanding any significant improvements to the knowledge in question.

“State Wide” TK

As regards other forms of TK, over which no paticular community can stake claims, the State of Kerala becomes the defacto owner and regulator. Here again, all users within Kerala (barring corporates) have a license to use it for non commercial purposes.

Fear of MNCs

When reading the policy, one cannot help but notice a deep seated distrust of “corporate”/MNC’s. The policy therefore takes the easy way out: in most cases, corporates (medium and large enterprises) are barred from using the knowledge!

State Bayh Dole?

Secondly, the policy also regulates state funded inventions–in a manner similar to the proposed Bayh Dole Bill that the Central government is sneakily attempting to introduce –a bill that we have been extensively blogging about. Unfortunately, as it stands now, the Kerala policy only covers inventions that come out State labs/institutes and not private institutes/facilities that might use state funding to arrive at the said inventions. The policy establishes a body called the Supervisory Council on Intellectual Property (SCIP) to oversee all such inventions and their patenting and subsequent licensing/remuneration to scientists that were involved in the “inventing” process.

History of Kerala’s IP Policy

I believe the chief architect of this policy is Prof Prabhat Patnaik, a reputed economist from JNU (Jawaharlal Nehru University) with Marxist leanings. He also happens to be the vice-chair of the Kerala State Planning Board. The other brain behind this policy is Praveen Raj, a scientist and an ex-patent examiner, who offered most of the legal inputs. Apparently, the idea for such a policy came out of the earlier government in Kerala (specifically from former Law Minister, KM Mani), but was effectively concretised by the present government, with the help of Prof Patnaik and Praveen. The main supporters of this policy in the present government are the current Chief Minister, Mr VS Achutanandan and the current law minister, Mr M Vijaykumar.

Like most other new policies, this comes with its pluses and minuses. Before we outrightly reject the policy as too fanciful, we ought to appreciate that the intent behind this policy is a laudable one. This might just be a case of the Kerala state government giving up on the Centre–which has been sitting on this issue for too long now and has been “barking” more than “biting”. To this extent, the move by the Kerala state government is a rather bold and dare I say “non traditional” one. As Praveen tells me: none of the critiques appreciates that this is “out of the box” thinking. But only time will tell whether this thinking will be seen as a “wise” move or as embodying the old aphorism that “fools rushed in where the angels feared to tread”.

The challenge will be in the fleshing out of this policy–the devil truly will be in the details. It is only a “policy” now–and it is expected that the government would legislate on this in the coming months. We will deliberate on the various pros and cons of this policy soon. For the moment, we leave you in the able hands of Praveen Raj, who’s drafted the overview below:

IPR POLICY OF KERALA – AN OVERVIEW

The major issue being addressed by the Kerala IPR Policy 2008 is with regard to protection of traditional knowledge and biodiversity associated with such knowledge, which demands attention for the following reasons.

a) Traditional Knowledge is not sufficiently codified;
b) There is no formal mode of transmission of TK; and
c) TK is not coming in the ambit of any legally defined Intellectual Property Rights.
d) It is an advantageous factor that it largely remains outside the domain of capitalists

The main concern of the Government is that unlike other knowledge categories which are mostly deciphered in books or embedded in the biological system, this kind of 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 corporate entities with minor modifications thereon and thus making it eligible for patenting in their name. This will in turn adversely affect the interests of many who practices Traditional Knowledge for their bread and butter.

Traditional Knowledge Commons

The IPR Policy of the State 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”. “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. In the legal arrangement proposed by the Policy, Traditional Knowledge is categorised into two. In the first category, Traditional Knowledge refers to such knowledge preserved and passed from one generation to the next generation, in a variety of traditional ways, by particular communities (especially tribal communities), particular institutions or families regionally located. The second category pertains to the Traditional Knowledge that sustains the daily practice of Ayurvedic medicine by numerous practitioners scattered across Kerala

Concept of Commons Licence for Traditional Knowledge

While the Policy envisages creating property rights on traditional knowledge, 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 possession 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.

Creation of Rights on Traditional Knowledge

In respect of the first category of TK, where it is the preserve of a particular community, particular institution or family, such community or custodian will be deemed as the right-holder(s) of TK. These right holders will have two kinds of rights

a) Right for a “brand name” or a name associated with the unique practice of such community, family or institution, say “Kottakkal Massage” for Example.

b) Right to use the Knowledge for Commercial as well as Non-commercial purposes.

Any one other than the right-holder to the traditional knowledge, who wishes to use this knowledge, may do so under a “Common License”. If any commercial use of the traditional knowledge is to be made by any entity other than the right holder, the terms and conditions for such license will have to be negotiated between the right-holder and the said potential user. Any use of traditional knowledge or practice in violation of the “commons license” within or outside the state of Kerala will be considered a violation of the rights.

No entity that is registered as a medium or large enterprise would ever be acknowledged as a right holder.

In respect of the second category of TK, where it is the livelihood of numerous practitioners strewn across Kerala, State will be deemed to have rights over such Traditional Knowledge. Even though State holds the ownership on such TK, all the actual practitioners of this Traditional Knowledge will have an autonomous license for right of commercial use from the State, provided that such practitioners are not classifiable as medium or large enterprises. But these Licensees are not empowered to sub-license this right of commercial use to anybody else, and right for transferring licenses will solely be enjoyed by the State, i.e. the right holder.

Governing Mechanism – Kerala Traditional Knowledge Authority (KTKA)

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 all practitioners of traditional knowledge of the first category will have to be registered. Such practitioners will have to specify what is unique about their actual traditional-knowledge-practice, the details of the nature of their practice, and the details of the nature of the community/group/individual that constitutes the custodian of this practice. KTKA will give general notice to the public, regarding all applications being made to it by practitioners. This is 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, KTKA would finally register a community/group/individual as knowledge practitioner of such unique set of TK practices.

The Board shall consist of a Chairman and four members, of whom at least one each must be from the TK community and the scientific community. The activities of KTKA shall be financed from a fund created by the Government of Kerala. KTKA shall maintain a register of all such TK practitioners of the first category, who have registered with this Authority. KTKA also shall have the obligation to help right holders viz. the State and the Private Communities to negotiate terms with the other possible commercial users of traditional knowledge, and undertaking promotional activities like forming ‘Traditional Knowledge Users’ Co-operatives”, in order to enable such users to access larger markets for their practices and products.

TK associated with use of Biological resources

The Policy further keys out that in the case traditional knowledge associated with the use of biological resources, an additional safeguard can be introduced by using the provisions of Biological Diversity Act, 2002. By employing Section 3 of the Biological Diversity Act, which stipulates that all foreigners must get previous approval of the National Biodiversity Authority (NBA) to obtain any biological resource occurring in India or knowledge associated thereto, for research or for commercial utilization or for bio-survey or bio-utilization”, the State may ask the National Biodiversity Authority (NBA) to refer all such applications by foreigners seeking biological resource from Kerala to obtain the additional approval of the State Biodiversity Board (SBB) to ensure that any innovation based on traditional knowledge associated with the biological resources of the state is put into the realm of “Knowledge Commons”. State may enact legislation for effecting the above if it is not practicable to get the arrangement done through NBA.

A Similar mechanism would need to be put in place against misappropriation of TK associated with the use of Biological resources by Indian Corporates. Section 7 of the Bio-diversity Act 2002 provides that “No citizen of India or a body corporate, association or organization, which is registered in India, shall obtain any biological resources for commercial utilization, or bio-survey and bio-utilization for commercial purposes, except after giving prior intimation to the State Biodiversity Board concerned”. However this provision does not apply to the local people and communities of the area, including growers and cultivators of biodiversity and the practitioners of indigenous medicine. But there is a drawback that this section does not cover obtaining knowledge associated to the biological resource. Therefore it requires that the Section 7 be extended, through appropriate legislation if necessary, to make it obligatory for the applicant (all Indian citizens other than the local users) to obtain prior approval of the State Biodiversity Board for the use of knowledge associated with biological resources also. This can help to ensure that the traditional knowledge remains within the realm of “Knowledge Commons”.

As regards to the commercial use of the biological resources of the State, wherein the permission of SBB is mandatory according to the Biodiversity Act, the SBB shall give its permission only after consultations with the KTKA.

Another point that requires attention is that the foreigners are kept outside the purview of Section 7 of Biological Diversity Act when it comes to commercial utilization of biological resources and they are required to obtain permission only of the NBA and not of the SBB. Therefore State shall make it obligatory (through appropriate legislation if needed) for the foreigners to obtain permission from SBB for the commercial use of biological resources of the State. SBB shall refer it to KTKA as in the case of commercial use by Indian Citizens.

In all such cases referred to KTKA by SBB, it shall go into the question of possible damage to traditional knowledge-users and require possible compensation for such damage. Either through outright proscription of commercial use of biological resources by outsiders, or through arranging equitable benefit-sharing with the traditional users, which would compensate them for any losses they may suffer as a result of such use, the interests of the community of traditional users will be protected.

The Co-operation of NBA is very much necessary for the above arrangements and the entire policy needs close synergy between the SBB and NBA. Indeed any breach by Indian or foreign corporate of the SBB stipulation that developments based on traditional knowledge must be put in “Knowledge Commons” can be caught only when they apply for patents through the NBA. Similarly if some traditional users seek to take out patents either of existing knowledge or of any development based upon it, it can be prevented only when the patent permission is sought from NBA.

Supervisory Council on Intellectual Property (SCIP)

The Policy proposes to set up a specialized governmental body called the Supervisory Council on Intellectual Property (SCIP) to oversee the activities of the KTKA and SBB with regard to the protection of traditional knowledge, to provide overall supervision in matters relating to intellectual property rights, and to follow up the recommendations of the KTKA with regard to prosecutions for violation of knowledge-users’ rights.

The following are the constitutional details of SCIP.

• Chief Minister will be its Chairman and Law Minister will be the Vice-Chairman
• The Chairpersons of the SBB and of the KTKA will be ex officio members.
• Its Members shall include a few ministers, Scientists and other experts from various fields
• The Council will have appropriate technical staff
• The Council will operate through a number of sub-committees and specialized groups, which will meet frequently and deal with specific issues.

The following are its major functions

• It will pursue all cases of breach of agreement on knowledge-user’s right.
• It will be the conduit through which all the patent applications from state government-funded or state government-aided research institutions will pass.
• It will help any potential patent applicant who asks for its assistance to prepare proper patent applications.
• It will assist all those who are on the verge of patentable inventions but are held up in their research work and cannot complete it for some reasons (including financial constraints).
• It will encourage in various ways patentable research in the state.
• It will disseminate knowledge in the state about intellectual property rights.
• It will in general uphold and promote the interest of the state and its people in whatever way it deems fit in the new International IPR Regime.

Ownership of IPR in research Projects hosted by State-funded institutions

Another major issue being addressed by the Policy is with regard to the ownership of Intellectual property rights over the outcome of research in state government-funded and state government-aided institutions, especially given the current trend of outsourcing from the west. While such outsourcing, giving rise to collaborative research can be academically productive for the states’ research institutions, it is important to ensure that our public research institutions do not simply become providers of cheap labour to multinational corporations.

In respect of the projects funded by private sources or by foreign official sources, the Policy stipulates that the knowledge generated in such research shall be put in to the domain of “commons”, so that any one can use these for whatever purpose, and all useful modifications derived from or based on these will be put back in to “commons” available for anyone to use.

In the case of Projects funded by State Government or from the general research funds of the institution itself, the research outputs must clearly be the property of the state government, but a suitable system, of rewards will be introduced, by the Supervisory Council on Intellectual Property (SCIP), for the research scientists upon whose work the output is based. The State Government may decide to put the research output in many cases in the domain of “commons” but that will be its own decision, to dispose of its “intellectual property” in any manner as it deems fit.

In the case of Projects funded by the Central Government or by other official agencies of the country, the intellectual property rights over the outcome of research should be left open and decided on a “case by case” basis, since the research partners in these cases may well have their own rules regarding the intellectual property status of outcomes of joint research.

While these would be the general rules, there may be specific cases where exceptions may become necessary. All exceptional cases in the first two sets of projects and all cases belonging to the third set where the intellectual property status is decided on a case-by-case basis, should be submitted for approval to the Supervisory Council on Intellectual Property (SCIP) before the start of the project, provided that the project estimate exceeds a certain minimum size. Since the patent applications on all such projects will have to go through the SCIP, it will at that stage decide whether a patent sought in the case of a project on the second category, i.e. on a state government funded project, should be put into “knowledge commons”. This decision however has to be taken in consultation with the research institution concerned and by the full meeting of the SCIP.

The SCIP will be concerned only with the intellectual property rights issue in all the above cases, and will give its opinion within a short time so as not to hold up the research project unduly.