The need for an‘independent’ review of the TKDL project


I would like to conclude the last few posts on the Traditional Knowledge Digital Library (TKDL), with a call for an independent review of the entire project. In specific, the review should examine the TKDL on the following points: 
(i) Copyright infringement: In of my earlier posts, I had raised the issue of whether TKDL was compliant with the Indian Copyright Act, 1957. The ‘copyright issue’ strikes at the very heart of TKDL for the very same reason that Google Book project ran into trouble in the U.S. and other countries. Initially, a lot of us, me included, were working under the mistaken assumption that the TKDL was more like an encyclopaedia, where CSIR had compiled its own database of traditional knowledge by researching various TK databases. However, if you were to go through the TKDL website, especially the FAQs, it is quite obvious that TKDL is merely scanning existing Indian books on TKDL and making the same available in a digitized format, along with translations in several languages. This can be evidenced from some of the excerpts from the TKDL which are available from the EPO website and can be accessed over here. In total the TKDL website claims to have digitized over 150 TK books. 
When I asked CSIR whether they had sought copyright permission from the owners of the books to digitize the content therein, they replied saying that no permission was required since the traditional knowledge contained in the TKDL was authored several thousand years ago therefore putting such information out of the purview of the TKDL. That’s like saying that no history book can claim copyright protection because they pertain to events that took place several hundred years ago. Well maybe this is an exaggerated example but the logic certainly applies. 
As per copyright law, the threshold for copyright protection is quite low – it used to be at the standard of ‘skill & labour’, before moving on to a standard of ‘modicum of creativity’. The former standard meant that as long as the author exercised a minimum amount of labour he would be entitled to copyright protection. Under this standard even compilations of known information, such as a telephone directory could be easily protected. The latter standard requires the author to exercise some creativity, in order to secure copyright protection. While this standard is slightly more onerous than the ‘skill & labour’ standard, it is still a relatively low standard when compared to the ‘inventive step’ standard under patent law. We had carried some posts on this standard in the context of a Supreme Court decision in the famous EBC case. 
Coming to the books digitized by the TKDL, it appears that most of the books are compilations of existing information or in some cases translations of existing information. Although the subject matter of the books may themselves pertain to TK discovered several years ago, the very fact that the authors have compiled such information and maybe even translated the same into books will qualify the authors of such books for copyright protection under the Copyright Act, 1957. Moreover several of these books appear to be quite recent i.e. as recent as 1999 & 2002 and will therefore definitely qualify for copyright protection. 
I cannot understand how CSIR claims such books to be excluded from the Copyright Act, 1957. Such a blanket assertion is all the more troubling at a time when we are constantly lamenting on how India is not doing enough to encourage TK systems. If CSIR were to recognize the copyright in these books, they would have to pay royalties to the copyright owners of the books, thereby encouraging the authors of the books to continue their research into Indian TK systems. At the very least, CSIR should have sought an independent legal opinion on whether copyright permission was required. Moreover, when CSIR spends millions of public money protecting its own inventions, it is only incumbent on it to apply the same standards while using the private property of private citizens. 
(ii) Confidentiality: As of today, the TKDL is considered a confidential database by CSIR. Access to the TKDL is given only to the USPTO, EPO, JPO & IPO. The CSIR is yet to give a concrete reason as to why the TKDL is considered confidential, especially since it has been funded by public money – in an earlier interaction with the CSIR-DG, Sumathi had reported that the TKDL was kept confidential by CSIR because they were concerned that patent lawyers would game their patent applications to evade the TKDL. I don’t think that’s a good enough reason. Similar databases in China & South Korea were made publicly available online without any restriction. 
Even on the question of legality of the move to keep the database confidential, as discussed in my earlier post, it is not even clear whether TKDL has the legal basis to claim confidentiality. The RTI reply by CSIR is vague and does not point to any document which clearly specifies the legal instrument deeming the TKDL database to be confidential. 
(iii) Reviewing the translations contained in the TKDL: As pointed out by Mahima in her earlier post, it is very possible that some of the content in the TKDL has been wrongly translated. As of now it is not clear as to what safeguards have been put in place by the TKDL to ensure the veracity of the translation process. Mahima’s post however clearly highlights the need for TKDL to ensure better safeguards to ensure accurate translation of ancient texts into the English language. 
(iv) Correcting the existing bias towards the EPO: As is evident from the website of the TKDL, the database is being used by the CSIR to improve the quality of mainly the patents being granted by the European Patent Office. In response to my last post, I received several comments attacking the veracity of what I had written but not a single one of the commentators was able to explain to me as to why the TKDL/CSIR is not making similar intervention before the Indian Patent Office despite the pre-grant opposition procedure being almost same if not identical to the procedure before the EPO. The TKDL website does not mention even a single case where an Indian patent application has been opposed by the CSIR. In all probability the Indian patent office is flooded with patent applications pertaining to TK because there are several Indian companies who research exclusively on Indian TK. Given that the TKDL has been funded by Indian tax-payers it is only fair that Indian citizens be saved from bad patents in their own country. 
(v) Training of the Indian Patent Office: As blogged by Mahima, over here, CSIR has to get into the act of training the examiners of the Indian Patent Office. This is necessary because it appears that the TKDL is not a very user-friendly database and anybody using it requires specialized training. Part of the blame lies with the IPO, which should make such a request under the appropriate terms of the Access Agreement with CSIR for training in the use of the TKDL. 
(vi) More accurate reporting of TKDL’s interventions: As pointed out by Tufty Kat, over here, the TKDL seems to be greatly exaggerating the claims of its success. There is no doubt that the TKDL has been very effective in certain cases, but there have also been other cases where the TKDL claims success despite without any reasonable basis for making such claims. Ideally the TKDL should develop an ‘index’ or ‘scorecard’ to rate the degree of success for each intervention. 
(vii) Free access: Another issue which needs to be examined is whether TKDL should continue as a ‘free’ database for the foreign patent offices. I’m sure a substantial amount of money has been sunk into the TKDL project and also for regularly conducting searches and filing third-party interventions before the EPO. If the TKDL is indeed confident that it is an indispensable tool to improve the quality of patents, there is no question of the foreign and Indian patent offices refusing to pay for access and other services from the TKDL. The idea is not to mint money from the TKDL but at least make enough to ensure the project is self-funding. 
(viii) Independence from CSIR: A last issue which needs to be comprehensively reviewed is whether CSIR should continue to operate TKDL. The reason I raise this issue because of the inherent conflict of interest in such an arrangement. CSIR files a large number of patent applications in India and foreign countries and it is unlikely that a TKDL controlled by CSIR will ever scrutinize CSIR’s patent applications with the same zeal that it demonstrates in other cases. 
(ix) Regularizing the staff at the TKDL: One of the constant complaints that we have heard on the previous TKDL posts is from some of the employees of TKDL, most probably the translators, who have been employed on contract and who are not treated on par with other employees of the government. This is extremely unfortunate. The Government should not forget that projects like the TKDL are dependant completely on human capital and if the translators who are the backbone of the project are unhappy because of discrimination against them, the entire project is bound to suffer.
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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).

3 comments.

  1. AvatarMahima

    I’m curious about one thing. When the power to document Indian TK has been statutorily granted to the National Biodiversity Authority which came in to existence just in time when TKDL project was initiated, why is CSIR the whole and sole authority and not NBA??

    Shouldn’t is require the prior approval of NBA to have done the act of documentation?

    Reply
  2. AvatarAnonymous

    Prashant,

    You have raised very valid points for finally reviewing the TKDL issue from different angles that you have pointed out. I was wondering, if all that the CSIR has done is the scanning of the books which are readily available in the market, what is so secret about it and to my mind it should not be costly affair as it is shown, except the aspect of translation which of course would be a costly affair.
    But then for translation, the impression that we get from the employees who are involved in translation, are not treated at part with the other employees of CSIR.

    The reasoning given by CSIR towards the confidentiality is not plausible when CSIR says that “patent lawyers would game their patent applications to evade the TKDL”. You say that similar databases in China & South Korea were made publicly available online without any restriction. The TKDL should be made public or accessible to the public. At the most it can be paid site but in any case should not be kept confidential.

    I am of the opinion there is violation of copyright law by CSIR and the reasoning given by it that the traditional knowledge contained in the TKDL was authored several thousand years ago is wrong. The fact that the books on TK cannot have copyright because it pertains to TK is farce. The books on TK will keep on publishing. Each such book published would have its own copyright in it.
    I also think that Mahima is right in saying that CSIR should have sought the prior approval of NBA apart from the copyright holders.

    Reply
  3. AvatarAnonymous

    Copyright Infringement in India can be decided in accordance with the Indian Copyright Act : Section 22 of the Act is relevant which is reproduced below:
    “Term of Copyright in published literary, dramatic, musical or artistic work- Copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies.”
    As an Ayurveda M.D., I know that Ayurveda reference concerning EPO posted by you is of an author Madhava written in Manuscript form known as Vrndamadhava in 9th Century. Therefore I am unable to see any infringement Since original Author died in ninth century more than 1300 years ago, how this can be described as the case of infringement of the Indian Copy Right Act.

    Reply

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