Copyright

Is the TKDL a ‘confidential database’ and is it compliant with Indian copyright law?


I recently filed a RTI application with CSIR requesting for certain information on the Traditional Knowledge Digital Library (TKDL). The main aim of this RTI was to understand the legal basis of the TKDL being a confidential database. Of course, there were some other questions that I raised in this particular RTI. Image from here. The questions in this RTI Application were as follows: 
(i) Can any citizen of India access the Traditional Knowledge Digital Library (TKDL) that has been created by the Council for Scientific & Industrial Research (CSIR) or is the TKDL considered to be confidential? 

(ii) In case the TKDL is considered to be a confidential database, you are please requested to provide me with details/photocopy of the legal instrument or the order of the CSIR which has deemed the TKDL to be a confidential database. 

(iii) Are scientists of the CSIR allowed to access TKDL for the purpose of their research? 

(iv) What is the mandate of the TKDL? Is it only required to collate data or is it also required to actively object to foreign patents which misappropriate Indian TK? 

(v) Has CSIR secured the permission of copyright owners of the books which it has digitized for the purpose of the TKDL library? 

The entire response by CSIR, to this RTI can be accessed over here. 
In response to the first question CSIR replied, predictably, that the TKDL was considered confidential and that it could be accessed only by foreign patent offices such as the USPTO, EPO & JPO. Surprisingly and slightly shockingly, the Indian Patent Office is not mentioned in the list of patent offices with access to the TKDL. CSIR however also mentions that that around 1200 ‘demonstration formulations’ from three disciplines such as Ayurveda, Unani and Siddha are in ‘open domain’. 
In response to the second question, which pertained to the legal instrument that deemed the TKDL to be confidential, CSIR provided me with an extract from Cabinet meeting in 2006. CSIR’s implied answer appears to be that this extract forms the basis of deeming the TKDL to be a confidential database. You can read the entire note in the link that I have provided above. I didn’t notice any such statement anywhere in the document, which deemed the TKDL to be confidential. Unless I’ve missed something – have I? To briefly conclude, I don’t think there is any legal basis for CSIR to deem the TKDL a confidential database. Anybody filing a RTI Application asking for the entire TKDL on a couple of DVDs should be given access to the same. The larger question however pertains to the requirements for deeming a certain document to be ‘confidential’. In my view unless there is a Parliamentary instrument deeming a certain document or certain class of documents confidential, the same is open to public scrutiny. Surely the babus in CSIR cannot decide what is confidential and what is not. 
In response to the third question i.e. whether CSIR scientists had access to the TKDL, the response clearly states that CSIR scientists do not have any access to the TKDL for their research activities. 
In response to the fourth question on the precise mandate of the TKDL, the response indicates that the TKDL’s mandate is limited to “establishing all steps necessary for establishing prior art on Ayurveda, Unani, Siddha etc. at International Patent Offices before grant of patent”. However as explained in this earlier guest post, TKDL is actively examining patent applications filed before the EPO and providing inputs to the EPO. While there is nothing per se objectionable to this practice, there is the question of establishing the basis of such an action in the law. TKDL has to function within the parameters of the law that has established it. If the RTI response is correct in stating that the TKDL is supposed to only create a database, on what basis is the management of TKDL intervening in the patent examination process before the EPO? Moreover, if the TKDL is to be used in such a proactive manner, it should be removed from the purview of the CSIR because of a blatant conflict of interest since as explained in an earlier post CSIR is filing for a large number of patents in foreign countries. 
The fifth question pertained to certain copyright issues surrounding the TKDL. The TKDL project is basically the collation of all TK information available in India, into a single digitized database with the available information being translated into several different foreign languages. Basically, it is the TK equivalent of the Google Book project. It was an ambitious project by any standard. As per the TKDL website, the source of most information in the TKDL is various books published on the subject. A bulk of the information appears to have been sourced from 151 books on Ayurveda, 33 books on Unnani, 137 books on Siddha & 38 books on Yoga. Several of these publications are quite recent and involve an element of creativity in the sense that they are translations or compilations of existing information which can be protected as literary works under the Copyright Act, 1957. The question that I had posed to CSIR was whether permission had been taken from the copyright owners before these books had been digitized and translated. CSIR’s answer was quite surprising. They stated that the text of these books date back to several hundred years, up to 2500 BC therefore putting all these texts outside the purview of copyright laws. The implied answer therefore is that CSIR does not require to negotiate for any permission with the copyright owners. 
For the reasons already explained above, this understanding is completely flawed. As the TKDL website itself indicates, several of those books are translations or new compilations published only in the nineties. All such works will have individual copyrights in them. While the Copyright Act, 1957 may be viewed as an unnecessary hindrance, it is the law of the land. It is most regrettable that while CSIR spends crores of public money in protecting its own intellectual property, it does not deem it necessary to take the permission of private citizens before using their intellectual property. 
An ancillary issue at this stage is whether the publishers of these books can sue even the USPTO and the EPO for using such a database which appears to have seriously violated several international copyright treaties. This is of course an academic question since it is unlikely that these publishers will ever sue the USPTO or the EPO.
Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

10 comments.

  1. Avatarbasit

    The RTI reply refers to the Cabinet note which stipulated terms and conditions for any access to the TKDL.What has been cited in the reply is the decision of the CSIR of approving the same proposal.Thus its the Cabinet note that sanctions the legal status of TKDL.You may please refer to that note for clarifications or Newspapers carrying report on the same issue around June,2006.

    Reply
  2. AvatarPrashant Reddy

    Where does the Cabinet note refer to anything regarding the TKDL being confidential? And the CSIR has no power to approve what the Cabinet say, its the other way around.

    Prashant

    Reply
  3. Avatarbasit

    Unfortunately the portion cited in reply only talks about the approval of the proposal for giving access on certain T&Cs. It doesn’t cite the full note recieved from the minstry of health.This note has been approved by the cabinet.The newspapers carried news reports on the same note e.g. see financial times 29 th june, 2006. To ascertain the legality is by requesting for the note sent by the health minstry rather than what has been cited in reply is only the approval of the same.To conclude it lacks legality doesn’t hold water.

    Reply
  4. AvatarPrashant Reddy

    hi Basit,

    Have you seen the Cabinet note? If you have a copy, please do forward it to me. I trust CSIR was smart enough to give me the correct information, which is what I put up. However even presuming your assertion to be true, there is always the question of the RTI Act, 2005. All government papers are presumed to be open to public scrutiny unless the public authority can prove that it is exempted under S. 8 of the Act.

    Moreover I don’t think the Cabinet can deem certain classes of documents to be confidential. What is the basis of this power in the Cabinet? TO what to do do you trace it?

    Regards,
    Prashant

    Reply
  5. AvatarAnonymous

    dear Prashant
    there are so many problems in TKDL. if you can manage to see TKDL very closely you find so many kind of conflicts regarding its functions. you can see any person doing any work for TKDL.there is no any rule for work distribution and no system of upgradation. the persons who are working for several years are getting same payment as the latest joining persons for same job. further more you can not justify the payments of workers also, as that is not according any rule and regulation. when ever Mr. V.K Gupta askes AYUSH to increase payment they follow him. last time increment of paymnet was about three years back.

    Reply
  6. AvatarAnonymous

    My question to CSIR is that why is it holding the DATABASE when entire expenditure is incurred by AYUS.Having devised the system of updating the database through Software,why is it being continued by CSIR and not by AYUS as this department has domain knowledge AND NO Scientist of CSIR except few is involved in the project.

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  7. AvatarAnonymous

    Hi Prashant
    This is the main problem. TKDL is exploiting its employees. They remain on contract on a ‘project’ for the last seven years and are being paid a pittance. They aren’t being absorbed by CSIR and Ayush is also not prepared to take them.

    Reply

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