Biological Diversity

TK, Spams and Biopiracy- IP’s Own Triple Entente


I am Mr MOYON GERARD, I am French expatriate and I live in cote d’ivoire. I do not very speak English, I am in this country for the marketing of a magical plant. This plant is the (STEVIA). This plant contain enough vitamin and it is without colestérol. I work on the case for a long time and this plant is wonder enough and is already sold in many countries around the world, this plant will replace the sugar. The STEVIA is a natural product used as a sweetener and to the advantage of being calorie. I travel around the world to sell this product rich in vitamin. This plant is not too well known, I am responsible for the marketing of this product in cote d’ivoire and I am looking for representatives who will sell this product in many countries around the world for me. This plant is legal and approved by the competent authorities. For more information try the product on internet. I will give $3,000,000.00 was one who will agree to be my representative to sell this product in his country.”

So goes a typical unsolicited commercial mail, which is a kind of email spam. Available literature says that email spam is deployed primarily for marketing products which constitute 25% of the total number of spam mails sent besides health-related spam which forms a good 7%. (By the way, about 14.5 billion spam mails are sent each day which accounts for 45% of all emails). What has this got to do with intellectual property? The content of the mail gives us the answer; the mail reproduced above was sent to Prof. Siva Thambisetty of the London School of Economics (We thank Prof.Thambisetty for drawing our attention to this issue) and points to a growing trend of biopiracy-related spam. Probably, a couple of questions need to be answered first.

1. What is the legal status of such mails? In other words, are these mails legal or illegal? If yes, under which law?
2. Is there any provision under biodiversity and biopiracy related conventions which are instructive in this regard?
3. How effective are such mails in boosting sales? Stated otherwise, are spam mails taken seriously at all by users?

Spam is considered harmful because of its content which usually promotes dubious ventures and messages that contain sexually explicit material. More importantly, the objection to spam is because it may contain hostile embedded codes and file attachments. In addition to this, the above figures show that it consumes a lot of bandwidth, memory and other resources, not to mention time. The actual illegality comes into picture when spammers tap into Simple Mail Transfer Protocol (SMTP) Servers and direct them to send copies of a message to a long list of recipients. Third-party relaying usually represents theft of service because it is an unauthorized appropriation of computing resources; a company’s reputation could be adversely affected if it is associated with spam because of third party relaying. Further, spamming violates the Acceptable Use Policy (AUP) of most Internet Service Providers.

However, there is no specific anti-spam legislation in India, unlike the US CAN-SPAM Act of 2003 (true to its name the Act says one CAN SPAM provided certain criteria are met), or the Personal Information Protection and Electronic Documents Act (2000) of Canada or the Spam Act of 2003 of Australia. Article 13 of the European Union Directive on Privacy and Electronic Communications (2002/58/EC) provides that the EU member States shall take appropriate measures to ensure that unsolicited communications for the purposes of direct marketing are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by National Legislation.

Our own Information Technology Act of 2000 for all its hype does not discuss the issue of spamming at all. It only refers to punishment meted out to a person, who after having secured access to any electronic material without the consent of the person concerned, discloses such electronic material to any other person. It does not have any bearing on violation of individual’s privacy in Cyberspace unless ss.65 or 66 are interpreted so. (This explains why Prof.N.L.Mitra says that IT Act is not a part of Cyber Law). The Coalition Against Unsolicited Commercial Email is the only entity worth mentioning in this regard.

In a suit filed by Tata Sons Ltd and its subsidiary Panatone Finwest Ltd against McCoy Infosystems Pvt Ltd for transmission of spam in 2004, the Delhi High Court held that in the absence of statutory protection to check spam mails on Internet, the traditional tort law principles of trespass to goods as well as law of nuisance would have to be used. Noted IT expert Mr.Praveen Dalal is of the view that spamming can be treated as violation of privacy under Article 21 of the Constitution and can also be brought under nuisance and trespass under the Indian Penal Code.

Having said this, it is clear that these provisions have a general application with no particular focus on biopiracy, meaning it can be extended to all kinds of goods. As far as the specific question of biopiracy is concerned, both the CBD and the Biodiversity Act emphasize on the sovereign right of a State over its bio-resources and so the practice of prior informed consent and benefit sharing were introduced. So in a way, only a country to which a particular plant or herb belongs, can take action for biopiracy.

This unholy nexus of email marketing and biopiracy points to the need for transnational recognition of biopiracy i.e. not only should every country be empowered to monitor the flow of bio-resources from its country, it should also be mandatory for countries to take note of illicit flow of bio-resources into their territories. Possibly a multilateral register or monitoring agency on the lines of the one mooted for wines and spirits under Art.23 of TRIPS can be a rudimentary model to start with for nations which are keen on protecting the end use of their resources outside their territory. Interestingly, there doesn’t seem to be much literature available on this obscure or atleast lesser-noticed ligature between email marketing and biopiracy. Jurisdiction of courts over such internet transactions is another issue which may need a lot of brain storming given that it is still fuzzy with no uniformity in different jurisdictions.

One might say that technical means of reducing or eliminating spam such as filtering or eliminating might put an end to the menace. Added to that, since questions on legitimacy of spam mails and the ventures they promote loom large, promoters of such ventures may find it increasingly difficult to rope in new recruits. A recent survey by spamlaw.com indicates that after the initial surge of spam mails, the traffic has more or less tapered and saturated.

Notwithstanding this, this issue has reinforced a long-standing opinion which though universally acknowledged is hardly put into practice; issues concerning and related to traditional knowledge and biopiracy require efforts which go beyond territoria nexus i.e. long-arm jurisdiction appears to be more of a default requirement than an exception. The beauty of TK-related issues is that though such knowledge derives its ingenuity from its contextual/native origins, the solutions for TK-related issues have to be both contextual and outward looking. Ms.Latha Nair in her Times of India article, which Mr.Basheer referred to in an earlier post, makes a passionate argument for international legal mechanisms and follow-up procedures. One fervently hopes that her arguments don’t fall on deaf ears.

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