Right on the heels of Praharsh’s post on the disclosure requirement in the new WIPO Treaty on IP, genetic resources and associated traditional knowledge, we are pleased to bring to you this guest post by Mr. R. S Praveen Raj highlighting the implications of this treaty on databases like the Traditional Knowledge Digital Library (TKDL) and emphasising on the need for a legislation for protection of traditional knowledge outside the IP framework. Mr. Praveen Raj is a scientist and technology transfer expert currently working as a Senior Principal Scientist in CSIR’s National Institute for Interdisciplinary Science and Technology (NIIST) in Thiruvananthapuram. He also serves as honorary Professor (faculty of Engineering Sciences) in Academy of Scientific & Innovative Research (AcSIR). Mr. Raj played a key role in devising IPR Policy of Government of Kerala, which addresses the concerns on traditional knowledge protection. Further he inspired Dr. Shashi Tharoor (Member of Parliament) to introduce a Private Bill for ‘Protection of Traditional Knowledge′ in Indian Parliament, which was tabled in Lok Sabha on 01.04.2022.
Looking Beyond the IP Framework to Protect TK: Implication of the New WIPO Genetic and TK Treaty on TK Databases, and the Need for a Sui Generis, Non-IP Model for Protecting TK
By R. S Praveen Raj
Article 1(b) of the WIPO Treaty on Intellectual Property, Genetic Resources and associated Traditional Knowledge states unequivocally that the objective of the Treaty is to prevent patents being granted erroneously for inventions that are not novel or inventive with regard to genetic resources and traditional knowledge associated with genetic resources. However, the ultimate purpose of the Treaty is to facilitate more and more patent applications from inventions based on genetic resources and associated traditional knowledge as it is reflected from Article 3. This will result in enhanced bioprospecting.
While Article 6 necessitates the creation of more and more information systems (such as databases) akin to Traditional Knowledge Digital Library (TKDL) of India, it is mandated that such databases shall be made accessible to Patent Offices. At the same time, Article 3.6 of the Treaty states that the countries party to the treaty shall make the information disclosure available in accordance with patent procedures without prejudice to the protection of confidential information.
Databases (Information system) such as TKDL serves as prior art and hence no patent could be granted on any traditional knowledge (TK) available in the database, according to the TKDL authorities. Agreements are signed with foreign Patent Offices before sharing the database, wherein the use of database is permitted for search and examination only. But it is certain that a Patent Office cannot keep the secrecy of the contents in TKDL. Because patent applications can be rejected only after disclosing the full script of the actual TK as citation to the claimant. Fraudsters may take it as an opportunity to file patent applications purely on conceptual grounds. They may claim that they had performed the invention, though they have not done anything. The ultimate aim of the fraudsters is to fetch authentic information available in the TKDL.
TKDL is definitely the appropriate solution to stop the usurpation of TK, that is known to a large number of people in the country. However, it is found that the TKDL authorities attempt to codify community-owned TK also. Such TK is the livelihood of communities, and hence codifying them into TKDL and sharing with patent offices is a gross injustice to those communities.
Therefore, it is proposed to create a Traditional Knowledge Docketing System (TKDS) in the case of community owned TK. TKDS shall comprise of the location where the TK is available, the community that holds the TK, the type and nature of TK and community protocol if any. Further, the communities should be educated to register societies or trusts for the protection of their TK. Government should also empower them to do further research on the TK in their custody and enable them to take patents on the inventions emanated from such research. Government should also handhold them in their endeavour to earn livelihoods from the TK and help them to negotiate with the potential customers. In order to facilitate all this, a sui generis legislation also is needed. The sui generis legislation shall provide for the local preservation and sustainable development of TK.
Sui Generis Legislation for non-IPR Protection for TK
This part is the discussion on the proposed Sui Generis protection for TK in India. Since it is very difficult to define TK in terms of its geographical origin, completeness and its custodians, a Union of Governments should have the complete right over the entire gamut of TK that exists within its territory. The ownership of TK shall be with States/Union Territories in India. The ownership is attributed to the State and the custodians act as deemed “trustees” of the State.If the legacy of a particular TK is shared by more than one States or Union territories claim, then such TK shall be jointly owned by all such respective Governments.
The custodians of TK viz. indigenous communities will have certain license rights, called deemed license, including the right to self-determination. No rights are created here; the legislation recognizes TK holders/communities as custodians of TK.
There shall be adequate protection available against misappropriation of TK, the reason being that it affects the livelihoods of the TK practitioners. A sui generis legislation shall also ensure opportunity to any person even outside the custodian community for enrichment of TK. However, financial benefits from such exploitation of TK should flow down and reach all the stakeholders. This can only be ensured if knowledge societies are registered and its membership is governed systematically. In order to create such a system, it is to be ensured that TK holders/communities register a “knowledge society” according to the laws of the country. The TK holders/communities shall be recognized as custodians of the said TK only after that. After registering the “knowledge society”, they can apply to the appropriate Government (deemed owner of TK) for recognition as custodians. It is the responsibility of the respective state governments to encourage individual practitioners of tK or communities to form knowledge societies.
When the custodians are officially recognized, they get the power to manage the TK according to the statute. They are also empowered to market their TK as they deem appropriate, ensuring that any commercial value in it would benefit them first. Government authorities should empower the TK communities to obtain Patents on the innovations made by them on the TK and to negotiate with the potential customers. It is also necessary to educate them that no patents could be obtained, within India or abroad, on any TK per se or aggregation thereof, obtained from any region or place, irrespective of whether it is in the custody of a community/ individual or in public domain.
Knowledge society can be registered by an individual, family or a group of people residing within the boundaries of the national territory. Such a family or group of people should have an exclusive connection with one or more TK and it should be possible to distinguish them from other groups or other members of the society. They can register a legal entity such as trust, society or company for administering the commercial as well as non-commercial use of the TK in their custody. One-person company also can be allowed if there is only one person associated with the TK.
All the members of the knowledge society will have the right for commercial and as well as non-commercial use of the TK attributed to the society. Further, the knowledge society may permit and regulate the use of TK by a non-member. The knowledge society shall also control use of TK by members and non-members and regulate the deemed license by forming a decision making body. Election of the members of the decision making body shall be through democratic process.
An agreement has to be executed by and between the knowledge society and the non-member, who seeks the grant of non-transferable permission for commercial or non-commercial use of the TK on a non-exclusive basis. The instrument shall be accompanied with clear labelling, demarcation or identification of the original TK, duration of permitted use, specific nature of use for which permission is sought, and other information deemed necessary in this respect. There shall also be signed an equitable benefit sharing contract if the use of TK is permitted for commercial purposes. Any enrichment made to the TK as a result of its non-commercial or commercial use shall be included back to the realm of the original TK in the possession of the custodian of such TK.
A private Bill has been introduced in Indian Parliament on April 1, 2022 by Dr. Shashi Tharoor taking cues from the above concept of non-IPR protection for TK. The Bill is christened “The Protection of Traditional Knowledge Bill, 2022”. The Bill proposes to establish a National Authority on Traditional Knowledge (NATK) and State Boards. NATK and the State Boards as the case may be, shall receive the application and fees in a manner prescribed and after sufficient scrutiny of details and accept an application from a knowledge society, who wish to be recognized as the custodian of the TK. If the application is received by a State board, then it should send the application to NATK with a clear recommendation as to recognition of knowledge society as custodian of TK. According to the Bill, the NATK or the State Board, should give wide publicity to the application for grant of custodianship of TK for the purpose of inviting any objections to such grant of custodianship before the process for recognition is initiated. NATK will not recognize another knowledge society as a custodian of the TK without hearing the knowledge society which is already recognized as one of the custodians of such TK. Consequently, all such knowledge societies belonging to one particular TK would be encouraged by NATK to form a consortium.
The Bill stipulates that a Traditional Knowledge Docketing System (TKDS) should be created and maintained by each State Board for its jurisdiction. It shall be centrally coordinated and managed by the NATK. TKDS will be deemed as a repository of vital information for identifying the custodian community associated with the TK. A letter of recognition, and a unique and exclusive docket number from TKDS, shall be given to the custodian, once the application for recognition is accepted.
Knowledge societies can allow commercial non-commercial use of TK by its members as well as by non-members authorized by the societies. The Bill mandates that any enrichment made on TK as a result of its non-commercial use shall be included back to the folder of the original TK, which is in the custody of the original custodian. While granting the permission for the commercial use of the TK, an equitable benefit sharing contract shall be signed by and between the knowledge society, the appropriate Government and the non-member who obtains the permission for commercial use of the TK. According to the Bill, NATK is empowered to receive the lump sum and royalty on behalf of the knowledge society and appropriate Government, as per the benefit sharing contract. This amount will be transferred to its National Traditional Knowledge Fund established under this legislation. NATK will ensure the equitable sharing of benefits.
Since, the ownership of TK is attributable to the State, Knowledge societies recognized as the custodian of the TK are obliged to bring all instances of usurpation to the notice of the appropriate Government. The appropriate Government shall entrust the NATK or the State Boards, to take appropriate legal action against the usurper. However, the custodian of such TK has the right to sue any one person on any matter other than remedies for infringement of ownership rights on TK. Punishment for misappropriation of TK and violations are included in Section 11 of the Act.
