Traditional Knowledge

Traditional Knowledge Protection: What is the way forward?


tkRecently, newspaper articles have been reporting that the Kerala State Government has started a vetting process for its proposed Draft Bill on Traditional Knowledge(TK). Although we do not have access to the Bill, according to secondary sources, the Bill proposes the constitution of people’s trusts for the protection of Traditional Knowledge at the Panchayat and District level. This is understood to be in line with the Biodiversity Committees and the accepted principles of Prior Informed Consent and Access and Benefit Sharing mechanisms. However, there has been objection to this move of creating registrable rights on TK from various quarters on the grounds that this is not in line with the IPR Policy of Kerala, 2008. (Our post on Kerala’s IPR policy is available here) The other recent development surrounding this issue is that a starred question for the Lok Sabha on this issue was submitted by Mr. Shashi Tharoor, MP, Thiruvananthapuram in August, 2015. However, the question was not listed in the questions for this session and will have to be resubmitted in the next session in November, 2015.

In this context, I seek to question two aspects relating to TK. The first is the current model of protecting TK including the TKDL (Traditional Knowledge Digital Library) and its utility. The second issue is to explore alternatives for the protection of TK and their workability.

The protection of TK has been a challenging issue for countries around the world. The primary difficulty (as explained by the inimitable IPKat) stems from the lack of definition for TK, the difficulty in establishing ownership and the wide range of protections usually sought for. Moreover, certain Indian TK  started being patented in foreign jurisdictions, particularly the US.  As this problem of biopiracy increased, the solution arrived at was the TKDL, whose purpose is to preempt the grant of patents relating to our TK in foreign jurisdictions. However, the utility of the TKDL has often been questioned by many particularly in light of its closed access model as well as the changes in the legal position in the US. {To read our opinions on this issue, take a look at Prashant’s post here, Balaji’s posts here and here and Madhulika’s post here} The arguments primarily are that in the post-America Invents Act era, TK would be considered prior art in the US and the TKDL only serves as a tool to facilitate locating the TK and is not a necessary facility. Moreover, as the TKDL follows a closed access model, it fails to be a meaningful resource for other research purposes. Therefore, it is opined that there is little virtue in continuing to maintain the TKDL in its closed access format while incurring significant cost in doing so.

Additionally, arguments are being made that the TKDL when viewed with the Kerala Draft Bill will probably have a counter effect of encouraging biopiracy. As argued by Mr. Praveen Raj, Senior Scientist, CSIR-NIIST, Thiruvananthapuram, creating registerable rights on TK and codification in the form of TKDL and applying concepts such as PIC and ABS constitutes “a gross injustice to communities”. He argues that the TKDL information is being shared with patent offices across the world. Although it is intended to only be for search and examination with respect to prior art, it works out differently practically. When patent offices deny a patent on the basis that TK is prior art, they have to disclose the entire TK associated with the invention as prior art to the applicant. This is problematic especially when the disclosed TK is that which is not otherwise in the public domain. This encourages persons to undertake a fishing expedition whereby they “file patent applications purely on conceptual grounds (as if they had performed the invention), only to see that they could fetch the authentic information on a TK practice/product.” They could then employ such information for their own commercial use, thereby affecting the livelihood of TK practitioners. However, Mr. V.K. Gupta, Director, TKDL and Senior Advisor, CSIR clearly disagrees with Mr. Raj. In a comment to Mr. Raj’s article in the Times of India, Mr. Gupta opined that Mr. Raj’s argument was not economically sensible. He stated that all the TK recorded in the TKDL were those obtained from books already published in the public domain and that such books are available for a cost of less than 2000 USD. However, the cost of filing an international patent application is significantly higher and therefore, Mr. Gupta argues, no persons would conduct such a fishing expedition for prior art. It appears that Mr. Gupta suggests that there is no TK that is not already in the public domain while Mr. Raj’s argument is primarily centred around TK that is not in the public domain. While I do not have information on this factual question, it seems plausible to me that there exists TK that is not already in the public domain. However, I would love to invite our readers to please contribute their two cents on this issue!

Assuming that there is a possibility of TK not already in the public domain, the alternative suggested by Mr. Raj is the TKDS (Traditional Knowledge Docketing System)- an information system that indicates the location of TK, the community that possesses the TK and a short description of the nature of TK and the community protocol, if any. It is also argued that such a TKDS mechanism is not only better suited to protect the livelihood of the TK practitioners but is also more consistent with Kerala’s IPR Policy. Kerala’s IPR Policy has embraced the idea of ‘Knowledge Commons’ over that of ‘public domain’. The Knowledge Commons concept works thus: The ownership of TK is attributed to the State with the TK practitioners and communities becoming deemed trustees of the State with respect to TK. While such deemed trustees have deemed rights over the TK, they are also deemed to be holding those rights under a ‘Commons License’, whereby the use by third parties of the TK in their possession is permitted for non-commercial purposes. Any developments made by the use of TK obtained under this license is added to the ‘Knowledge Commons’. The TK practitioners enjoy an autonomous right to employ the TK for commercial purposes. However, they cannot sub-license the TK for commercial use and any such license has to be made by the State. While the TKDL system ran the risk of TK being used for commercial purposes without obtaining any such license from the State, the TKDS by narrowing the information available safeguards against that risk. Therefore, it ensures that use of TK by non-TK practitioners is either in accordance with the Commons License terms or by obtaining a license for commercial use from the State.

While theoretically, the TKDS alternative appears to be far more promising than the TKDL mechanism, its practical workability is an issue of concern. There is a distinct lack of clarity about the terms and extent of the Commons License and the extent of matters that fall within the realm of Knowledge Commons. At present, the mechanism of TKDS read with the the IPR Policy and the method of employment of the same to protect TK as well as its practitioners is not clear. This includes the question of whether innovations made on TK by TK practitioners using the same for commercial use is added to the realm of Knowledge Commons or  whether TK practitioners have the right/ are required to protect such innovations through other IPR routes such as patents. This problem is also tied in to the issue of lack of definition of TK. Therefore, although Kerala’s IPR policy and the TKDS alternative appear to be well-intentioned, they need to be developed more to achieve their full potential.

L. Gopika Murthy

Gopika is a fourth year student at National Law School of India University, Bangalore. She was formerly the Chief Editor of the Indian Journal of Law and Technology. Her first exposure to Intellectual property law and SpicyIP was through the University Moot Rounds at NLSIU, Bangalore in her first year. She has been regularly following the developments in the field of IPR since then and she hopes to contribute to the reporting of such developments. Her areas of interest in IP include copyrights, open access, fair dealing and trademarks.

9 comments.

  1. R S Praveen Raj

    Kudos to Gopika for this excellent piece about TK. This article has lot of relevance in the light of upcoming General Assembly of member states of WIPO in October 2015, scheduled to discuss inter alia an international scheme for protection of TK and rights of indigenous communities.

    What is to be prevented at this stage is the attempt to put in place a frame work for protection of TK by creating new kind of private and proprietary rights (Intellectual Property Rights) and making of TK registers.

    Kerala IPR Policy may have many inherent flaws. While “TK Docketing system” and “deemed rights” are at conceptual levels only now, the intention is to moot an alternative to IPR route for protection of TK. TK Digital Libraries may be continued as a defensive mechanism in respect of TK already written down in ancient texts and manuscripts (like THALIYOLAS).

    However there are attempt to codify community-held TK (Not yet written down anywhere) using “Prior Informed Consent” and “Access and Benefit Sharing” concepts would be a gross injustice to those communities if such TK is put in to Traditional Knowledge Digital Libraries (TKDL) and shared with patent offices or even with Researchers. TK communities should be empowered and educated to negotiate the protection of TK through existing legal mechanisms.

    Traditional Knowledge is existing knowledge and not “inventions” and hence its patenting should be prevented. But there is no bar for patenting inventions, though it may be based on TK. Section 3(p) of Indian Patents Act, 1970 only prevents patenting of “traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components” and not patenting of any inventions based on TK.

    Patenting of TK ‘per se’ could be denied only if documented proof is available. TKDL serves the above purpose. Therefore such documentation should be done on TK known to public at large (Wound healing property of Turmeric etc.), so that there need not be any issue of secrecy for such TK Databases.

    It is also important to make the database available to all the researchers. But TKDL is not yet shared with researchers.

    Curcumin Research Database (http://crdb.in/editorial.php), which is open for access to all is good strategy.

    Reply
  2. V K Gupta

    Since my comments have been quoted, I would like to add some additional input, on (i) prior art , (ii) Misappropriation, context is strictly TKDL, misappropriation of Indian TK normally takes place in foreign patent office and after more than 14 years of International debate at IGC, WIPO till date no International Instrument on protection of TK against misappropriation exist and nobody knows when such a international instrument would become available or it would become available at all. It is always good to have National Laws but our National Laws do not have any jurisdiction in foreign land. International Patent System definition of prior art in most of the jurisdiction including US is any thing printed in any language any where in the world it even does not include internet based material if it has not been printed (I do not personally agree with this definition but facts can not be ignored) . Finally I would like to quote what I posted in TOI. Above two statements clearly give reasons why TKDL exist and why everyone including SPICYIP bloggers write so much on TKDL precisely for its relevance and outcomes for the Nation
    ” Mr.Praveen Raj does not appear to have any understanding either of TKDL or bio-piracy and IPR. TKDL contain details on about 3.0 lakh formulations from Ayurveda, Unani and Siddha system of medicine. These formulations have been transcribed from published books available in public domain and any body including MNCs can buy all these books in less than 2000 US$. TKDL has submitted prior art evidences in 2000 cases since 2009 and has been able to cancel the claims already in more than 200 cases at no cost balance are in pipeline t, whereas India did spend 2.0 million US $ in legal cost in getting cancelled few claims in the case of Basmati patent in year 2000. Cost of filling a international patent per application may be minimum US$ 50000-60000 , when all books can be procured in less than US $ 2000 why would any body spend 50000 us$ for few pages of prior art. Also Sh Raj work for CSIR but does not appear to have any knowledge on the issue. I will be happy to explain the details. V K Gupta Author and Architect of TKDL”

    Reply
    1. Minu

      Wish Mr. Gupta could understand Dr. Raj’s points here… he is clearly referring to some ”attempts to codify” unknown TK and not to published literature.. And Dr. Raj should have asked Mr. Gupta a simple question: Does the TKDL aim to register even unknown community held TKs? In case the answer is yes, I completely support Dr. Raj’s initiatives.

      Reply
  3. R.S. Praveen Raj

    It seems that Dr. V.K. Gupta is not updating deliberations regarding TK protection happening around the world. International law for TK will have to wait until a proper strategy for protection of TK is evolved. Creating IPR kind of protection is not found to be an appropriate mechanism and TK communities are not pro it. That is why the world is thinking about alternate methods for protecting TK.

    I think that Dr. Gupta has not read my comments at the end of the article, before writing down his comments.

    I do not understand the intention of Dr. V.K. Gupta in quoting his comments posted in Times of India again here. Ms. Gopika has already taken all the points from his comments.

    Dr. V.K. Gupta has all the rights to express his opinion, but that should be done without demeaning others. The simple principle is “Give respect and Take respect”.

    I’m deeply pained by the attempts of Dr. V.K. Gupta to represent me as someone acting against a project of CSIR. Every scientist has the right to express his opinion about International, National and Institutional policies. Nobody is given the stature of authority in any area of research including IPR or TK.

    Any way thanks to Gupta for my score for the knowledge in IPR and Biopiracy. But I’m sure that there are more judges around.

    Reply
    1. Minu

      Mr. Gupta is perhaps sure that every single entry in TKDL is already available in public domain as published literature.
      I suppose Dr. Raj ‘s definition for ‘TK’ in this case, is the unknown TK with tribes etc & which is unknown as of yet…. and that he wants to prevent that knowledge from being exploited by commercial resources (one way of achieving which is to not to register such TK’s with TKDL)
      Hope I have drawn the right conclusions out of the debate here.

      Reply
      1. R.S. Praveen Raj

        Yes. Ms. Minu. You have drawn the correct conclusion. There is a recent development in India regarding TK protection. It is a private bill introduced by Dr. Tharoor in Parliament last week. See the news below.

        http://www.deccanchronicle.com/nation/current-affairs/090317/shashi-tharoor-to-move-bill-on-traditional-knowledge.html

        In fact, I had inspired him to bring this bill. He has incorporated many of my views in the bill (as informed to me). I’m yet to see the final version of the bill.

        Some relevant extracts of Statement of Objects and Reasons of Protection of TRADITIONAL KNOWLEDGE BILL, 2016 (282 of 2016) tabled in Lok Sabha on 10.03.2017 are as follows. The full text of the bill is expected to be available soon in LOK SABHA web site or tharoor’s website (http://www.shashitharoor.in/in-parliament.php)

                    The advancement of science, technology and commerce offers considerable opportunity for the benefits of India’s traditional knowledge to be spread. However, since many of the indigenous communities who are its custodians still rely on their traditional knowledge for their livelihood and identity, its misappropriation can severely prejudice their interests.
         
                    For instance, patenting and intellectual property protection grants ownership and exclusive rights of use over innovative knowledge. There have already been several attempts to acquire such exclusive protections over India’s traditional knowledge, which is a gross injustice. Traditional knowledge is neither an innovation nor held by any single person. Rather it is passed down and refined over several generations and thus may not be considered as ‘intellectual property’.
         
                    Even as the World Intellectual Property Organization (WIPO) holds consultations to define and provide guidelines for traditional knowledge and its management, India must appropriate all its traditional knowledge to ensure that any application of it is accompanied with recognition of its original custodians. Moreover, India must ensure that the application of traditional knowledge does not harm the interests of its custodians and the benefits are equitably shared between the communities and the users.
         
                    In this regard India has even setup an innovative and one-of-its-kind Traditional Knowledge Digital Library to classify and codify India’s traditional knowledge so that it can be offered as ‘prior art’ to prevent the grant of erroneous patents. Parliamentary recognition shall give it the due importance it deserves to protect India’s interests. However, it should be complimented with a system of registration that identifies the traditional knowledge with its rightful custodians.
         
        The protection of traditional knowledge must ensure that there is enough incentive for research and innovation and for its benefits to be shared in a fair manner. There is a vast amount social benefit to be had from further development of traditional knowledge, and it must equally reward those who are willing to invest in it.

        This bill recognizes the complete and absolute right of the Union of India over the traditional knowledge that exists within its national territory. In addition, it recognizes the contribution of specific communities in the development of the traditional knowledge by giving them certain rights, including the right to self-determination. The bill introduces an administrative framework to manage traditional knowledge in India.

        Reply
  4. R.S. Praveen Raj

    Those who are interested may see the link below for the ‘Protection of Traditional Knowledge Bill, 2016’ introduced in Lok Sabha on 10th March 2017 by Dr. Shashi Tharoor MP

    http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/3013.pdf

    Even though the bill is not completely in agreement with my views, it proposes a non-IPR kind of protection for Traditional Knowledge.

    See the link below for a news report in deccan chronicle on March 9, 2017 about the introduction of TK bill by Dr. Tharoor.

    http://www.deccanchronicle.com/nation/current-affairs/090317/shashi-tharoor-to-move-bill-on-traditional-knowledge.html

    Reply

Leave a Reply

Your email address will not be published.