Recently, 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.