Guest Post: Towards a Nuanced Approach to Protection of Traditional Knowledge

Recently, IPKat carried a post titled Knowledge is Power; Traditional Knowledge is…? which appeared skeptical of the discourse around protection of Traditional Knowledge. The post argued that this discourse suffers from fundamental lack of clarity around key aspects such as the definition of TK, wider justifications for its protection, the scope of protection and to whom the benefits of TK protection should be granted.

While it is true that there is no international consensus on the definition of TK, India has been one of the foremost proponents for the protection of TK. This is especially after the infamous instances of biopiracy of Indian herbs, such as the patenting of the “use of turmeric in wound healing” in the USA. The Indian government also launched the Traditional Knowledge Digital Library (the TKDL), a registry of prior art in the form of TK as a defensive mechanism against biopiracy. In this post, Mr. Praveen Raj, a frequent commentor on SpicyIP pens down his thoughts on protection of Traditional Knowledge. He argues that the state should be responsible as the guardian of TK, and defensive mechanisms such as TKDL must apply only to that TK which is in the public domain, and further guard against misappropriation of knowledge. He also describes the Kerala IPR Policy which addresses some of these concerns.

TOWARDS A NUANCED APPROACH TO PROTECTING TK

Can’t we protect Traditional Knowledge without creating proprietary rights ?

We should be careful when creating registrable rights on Traditional Knowledge (TK) including Traditional Medicine Practices and classifying TK under Intellectual Property Rights, as they are private exclusive rights operating like a monopoly. Patents create private spaces in the knowledge arena (though for a short duration), and therefore no private appropriation should be allowed in the realm of TK.

Traditional Knowledge protection should mean ‘in situ’ perpetual protection and its sustainable development. Since TK is not definitive in terms its geographical origin, completeness and custodians, the ownership should be attributed to the State only, given the fact that TK is an accumulated traditional wealth and the long kept preserve of its practitioners, tribal communities and families, wherein all of them acted as deemed “trustees” of the State.

Traditional Knowledge Docketing System (TKDS) Vs TKDL
A “Traditional Knowledge Docketing System (TKDS)” (An Information System) should be created instead of registers, to indicate the location at which the Traditional Knowledge is available, the community that possesses the TK, and short description of nature of TK and the COMMUNITY PROTOCOL if any. The Communities should be empowered to take appropriate intellectual property rights on the innovations made by them on the TK and to negotiate with the potential customers by forming Societies/Trusts of their own.

It is dangerous to create “registers” and ‘registries’ of TK, as registering ‘rights’ make them absolute. “Compulsory licensing”, “license of right” etc. won’t provide solution as the rights are intact on registration. Any attempt to enable codification of community-held TK in the form of Traditional Knowledge Digital Libraries (TKDL) using “Prior Informed Consent” and “Access and Benefit Sharing” concepts is a gross injustice to those communities, as TKDL is being shared with Patent Offices across the world as “prior art” in an easy to access format on the presumption that the database would be used for search and examination only.

The Patent offices are obliged not to make any third party disclosure except for the purpose of giving a copy to the inventor/applicant as citation, since the definition of “prior art” encompasses everything that has been published, presented or otherwise disclosed to public on the date of patent and includes documents in foreign languages disclosed in any format in any country. But it is hard for the patent offices to keep the contents of TKDL secret from third parties, since no patent could be denied without disclosing the entire gamut of coded traditional knowledge (TK) associated with the invention to the claimant to prove that it is “prior art”. Those persons may either use it secretly for commercial advantage or put it in public domain and hence seriously affecting the livelihood of TK practitioners.

Therefore, documentation should be done only in the case of ‘TK in public domain’ in national interest. Of Course, TKDL is the right strategy to prevent the direct misappropriation of Traditional Knowledge already in public domain and known to a large cross-section of people (wound healing property of turmeric for example),though it bears the risk of patenting attempt on cosmetic improvements on such TK that is not accessible otherwise.

Legislation for Protecting TK – Lessons from Kerala IPR Policy, 2008

IPR Policy of Kerala, 2008 does not support extending ” trade secret” protection to TK and the State is against ‘creating monopoly over knowledge’. Hence policy proposes to commit all traditional knowledge, including traditional medicines, to the realm of “knowledge commons” and not to the public domain. Knowledge commons refers to the knowledge which is the collectively produced sphere of ideas and which is left unencumbered for the greater benefit of all.
The Policy takes refuge in a logic that rights exist on Traditional Knowledge (TK) as per “Common Law” and its ownership is attributable to the State, given the fact that TK is an accumulated traditional wealth and the long kept preserve of its practitioners, tribal communities and families, wherein all of them acted as deemed “trustees” of the State. In abstract, the intention of the proposed legislation is “not exactly the creation of rights on TK” but assigning some (not all) of the rights owned by the State to those deemed trustees in lieu of their willingness to put the TK to the realm of “knowledge commons”.
Kerala IPR Policy proposes to acknowledge the ‘deemed rights’ for the Traditional Knowledge holders and to make them aware of their rights. While the Policy envisages ‘deemed rights’ on traditional knowledge, all the right holders will be deemed to be holding their rights under a “Commons License”, wherein the right holders should 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. (Though the policy envisages putting the developments made on TK back to the realm of knowledge commons, path-breaking inventions like development of a new drug molecule or the process thereof which involves substantial developmental costs need not form a part even if TK may form the basis of its origin).
The word “Commons License” used here is based on the fundamental concept of “Creative Commons” employed by open source advocates, but its scope varies significantly from that of “Creative Commons License”. Specific provisions for such “Traditional Knowledge Commons License” will have to be worked out to ensure free, non-commercial reproduction and codification of the Traditional Knowledge. It should be a kind of “deemed licence” which immediately applies on the user of TK, the moment he decides to employ it for any purpose. The provisions for governing the deemed license/community protocols will have to be laid down in the legislation.
In respect of such TK, where it is the livelihood of numerous practitioners strewn across Kerala, the State will be deemed to have the absolute rights over such Traditional Knowledge. Even though State holds the ownership on such TK, all the actual practitioners of this TK will have an autonomous license for right of commercial use from the State. But these Licensees are not empowered to sub-license this right of commercial use to anybody else, and the right for transferring licenses will solely be enjoyed by the State. Therefore the ultimate aim of the legislation is not to protect the financial interests of the TK holders but the benefit of the society at large, as is the case with the fundamental concept of patents.