Guest Post: Questioning the Fallacy of a Closed-Access TKDL

tkdl-logo1Balaji Subramanian, a 2nd year student at Nalsar University of Law, Hyderabad, brings us an excellent 2 post series on issues relating to the Traditional Knowledge Digital Library (TKDL). In this first post, he examines the closed nature of the TKDL and argues that keeping the TKDL closed will prevent it from reaching its full potential. In his second post, he goes on to examine other structural and legal critiques of the TKDL which may be preventing its optimal usage. This is Balaji’s first entry into our SpicyIP Fellowship applicant series. [Readers interested in finding out more details about our SpicyIP Fellowship applicant series can click here.]

Questioning the Fallacy of a Closed-Access TKDL

By: Balaji Subramanian

The Traditional Knowledge Digital Library (TKDL) characterises itself as a solution to biopiracy, and it appears quite promising on paper. Its appeal lies in the manner in which it approaches attempts to patent Traditional Knowledge (TK) – it serves to pre-empt the grant of a patent, rather than to contest a patent’s validity after it has been granted. This, it is claimed, reduces the time taken to successfully contest applications from years to weeks. However, the system appears to be far from perfect. Over the course of this post, I highlight concerns regarding the TKDL’s access policy. In a separate post, I will examine other factors hampering the database’s effectiveness, before evaluating the TKDL and the principles that drive it against the values contained in an earlier policy statement prepared at an international level.

There has never been a coherent defence of the TKDL’s access model, which ensures that only patent offices that sign non-disclosure agreements can take advantage of the knowledge contained in it.

Databases in other countries do not impose access restrictions. The Korean Traditional Knowledge Portal, for example, explicitly states the reasoning behind its public availability:

  1. “To lay the foundation for international protection of Korean traditional knowledge, thereby preventing unauthorized use of patents inside and outside the country.
  2. To provide an abundance of information on traditional knowledge and related research, thereby expediting the development of related studies and industries.
  3. To provide essential information for patent examinations, thereby enhancing the quality of intellectual property applications for traditional knowledge.”

Similarly, the contents of the China Traditional Medicine Patent Database are also publicly available on the internet.

Before the project’s completion, some scholars wondered whether it could serve to facilitate biopiracy or misappropriation. The implementation of the project in its current form may have sought to address such concerns. However, this solution seems to be highly illogical, as TKDL has not aggregated any knowledge that was not already in the public domain. Since the TKDL’s main object was to translate and digitise knowledge that existed in the form of written scriptures and hymns, its function is one of facilitating access to hitherto unintelligible (to patent examiners, at least) literature in the public domain, rather than the discovery of previously unpublished knowledge.

The TKDL seems torn between different approaches to different TK problems. The protection of TK that is already published in local languages is a problem best solved through the use of a publicly accessible database, disseminated as widely as possible to ensure that patent examiners (as well as interested parties) are able to spot non-novel claims. The protection of TK that is unpublished, however, cannot be achieved through such a method. Suggested alternatives in such cases include community-level patenting, or the use of trade secret protection.

Another apparent motivator for restricting access, as previously noted on this blog, has been the apprehension that patent lawyers would find a way to recharacterise their claims in light of the information available on the TKDL so as to avoid being hit by the prior art described in it. This, however, seems to be insufficient reason for restricting access to the library – extending this logic further, one could well argue that access to discussions of the current state of the art in scientific journals must be similarly restricted, since unscrupulous patent lawyers could word their claims in a manner that works around the prior art being discussed. It has always been the duty of the patent examiner to see through any obfuscated claims, and there seems to be nothing preventing a competent patent examiner from spotting the lack of novelty in a patent claim where both the examiner and the applicant have access to the entire body of prior art. Recognising that illegitimate patents are granted in the real world, it would still be my argument that the risk of dodgy claims alone does not outweigh the vast benefits of an open TKDL. This seems to be a case of cutting off the head to cure a headache – spurious claims can be tackled by equipping examiners with better training and resources, rather than by denying TKDL access to communities that can make optimal use of it.

Thus, there seems to be no reason to keep a valuable resource such as the TKDL away from the public’s reach, especially considering that the entire project was bankrolled by the Indian taxpayer. Questions have been raised over the funding of the project, and the wisdom behind allowing free access to patent offices. However, much of this criticism is misdirected insofar as it advocates user-side financial barriers to access. The National Knowledge Commission, in its 2007 letter to the PM, suggested (text, PDF) that the TKDL be made available to corporations and other research bodies subject to a usage fee, and that such fees be used to fund the project. This is problematic for two reasons. First, in an era where governments are increasingly receptive to putting taxpayer-funded outputs on open access platforms (see here and here, for example), this would be an extremely regressive move. Second, the erection of a paywall in front of TK would serve to exclude precisely those sections of society that require access (practitioners, experts and communities), while simultaneously including those sections that the TKDL seeks to keep away (unscrupulous patent lawyers and large corporations).

There have been other criticisms of the confidential nature of the database, distinct from the open access critique. First, it has been alleged that the TKDL falls foul of the Copyright Act, since it has been digitising works (such as translations or compilations of ancient texts) that are currently copyright-protected, without the consent of their authors. More worryingly, as Prashant Reddy describes in the previously mentioned link, there appears to be no legal basis for maintaining the TKDL as a confidential database. In the absence of such a legal framework, there seems to be nothing in law to prevent an Indian citizen from utilising the Right to Information Act to request access to the entire database. In a nutshell, it looks like the confidentiality of the database, as ill-advised as it may be, has further been implemented in a sub-optimal fashion.

Finally, a publicly available database can be scrutinised by external experts, allowing greater accuracy in translation and facilitate scientific research into TK generally. With several reports of mistranslations and exaggerated claims, the TKDL would greatly benefit from a constructive, public debate over its contents, as well as an informed scientific discussion on the utility of specific instances of TK.

In conclusion, the TKDL’s access policy requires significant overhaul if it is to reach its true potential. In my next post, I shall outline two other factors that severely undermine the TKDL’s effectiveness in preventing biopiracy, and how they can be mitigated.

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