People's Democracy

An IPR Policy For Kerala

       

Prabhat Patnaik

 

THE government of Kerala released an Intellectual Property Rights (IPR) policy document on June 27 when chief minister V S Achuthanandan handed over a copy to S P Shukla, renowned activist against the Trade Related Intellectual Property Rights (TRIPs) regime imposed by the WTO. Kerala thus became the first state to come out with a policy on intellectual property rights.

The idea of a state government coming out with an IPR policy may appear odd at first sight, since the kind of IPR regime that should prevail and its modus operandi are matters that the Constitution leaves to the domain of the central government. But within any IPR regime, a range of specific problems arise for any state, which it has to resolve without infringing upon the domain of the centre. The IPR policy of the state is concerned with such problems.

The IPR policy of Kerala, needless to say, is neither a legal document, nor a position paper giving an exhaustive statement of the position of the government of Kerala on basic IPR issues. Legislation no doubt will have to come out of it, but precisely because the Constitutional powers of the state government in the matter are limited, this has to be done with circumspection, but in conformity with the IPR policy; the policy itself has no legal status. Likewise, defining the state government's position on basic IPR issues is not germane to a resolution of the practical problems facing the state in the context of the new IPR regime; accordingly, it does not figure in the IPR policy document. The scope of the document therefore is limited. It simply gives the state government's approach on certain selected issues of practical importance for Kerala in the context of the new IPR regime, while eschewing general obiter dicta on that regime.

�TRADITIONAL KNOWLEDGE�

There are three basic practical issues that the IPR policy addresses. The first, and by far the most important, relates to the protection of �traditional knowledge�, especially Ayurveda. The �traditional� nature of �traditional knowledge� is expressed not just in its being insufficiently codified, or in the non-formality of its mode of transmission, or in its not being subject to any legally-defined property rights; it is expressed also in the fact that it remains largely outside the domain of capitalist, especially corporate, operations. While it yields livelihoods to many, or forms the basis for practice for many, the absence of legal property rights over such knowledge creates scope for its private misappropriation. The IPR policy suggests a legal arrangement for preventing this.

Such knowledge obviously cannot be transformed into private property of any sort. At the same time it cannot simply be put in the public domain, since, this, while preventing direct private patenting of existing knowledge and practices, would not prevent their indirect private appropriation, through what will be claimed as �improvements� but constitute  mere repackaging or minor modifications. The Kerala government's approach therefore is to put all such knowledge and practices in the domain of �knowledge commons� which have two main characteristics: first while such knowledge is available for non-commercial use by anybody, its commercial use can be made only through negotiations with the existing right-holder; and secondly, any improvement made on the basis of this knowledge will have to be put back into the �commons�. More precisely, the proposal is as follows.

Within the corpus of traditional knowledge, it distinguishes between two components. One refers to knowledge which is the preserve of particular communities, especially tribal communities, or particular institutions, or particular families, often located in specific regions, and passed down from one generation to the next in a variety of traditional ways. The other refers to knowledge whose practice sustains the livelihoods of many persons scattered across the state, which does not have any specific community or family custodian. Thus while Kotakkal Ayurvedic massage clearly belongs to the first category, the knowledge that sustains the daily practice of Ayurvedic medicine by numerous practitioners strewn across the state belongs to the second.

ELEMENTS OF LEGAL ARRANGEMENT

The basic elements of the legal arrangement suggested for the protection of traditional knowledge are the following: i) all traditional knowledge, including traditional medicine, the practice of which sustains livelihoods, must belong to the domain of �knowledge commons�, and not to the �public domain�; ii) in the case of knowledge of the first category which has a community or family custodian, this custodian will be deemed to have rights over the knowledge, while in the case of the second category, the Kerala state will be deemed to have rights over the knowledge; iii) no entity that is registered as a medium or large enterprise may be deemed to  have any rights over traditional knowledge. iv) the right-holders will have two kinds of rights: first, the right, where applicable, to a �brand name� or a name associated with the unique practice of an institution or community or family, such as �Kotakkal massage�; and secondly, the right to the use of the knowledge; v) everybody else, other than the right-holder to the traditional knowledge, who wishes to use this knowledge will have to do so under a �commons license� described below; vi) any use of traditional knowledge or practice in violation of the �commons license� within or outside the state of Kerala will be considered a violation of the rights of the right-holders and will invite prosecution.

For operationalising this legal arrangement a body called the Kerala Traditional Knowledge Authority (KTKA) is proposed, with which all practitioners of traditional knowledge of the first category will have to be registered. They have to specify what is unique about their actual traditional-knowledge-practice, the details of the nature of their practice, and the details of the nature of the community/group/individual that constitutes the custodian of this practice. The KTKA will give general notice to the public, regarding all applications being made to it by practitioners, so that any contestations of applicants' claims, or challenges to claims of uniqueness, or prevalence of similar practices in more than one location or community, can be brought to its attention. It is only after scrutinising all such cases of dispute that the KTKA can finally register a community/group/ individual as knowledge-practitioners of the first category pursuing a unique set of practices.

ENFORCING THE RIGHTS

In addition to creating and maintaining such a register of traditional practitioners, the KTKA will also be in charge of enforcing the rights created under the legal arrangement mentioned above, recommending legal action against the violators of these rights and of the �commons license�, helping the right-holders, both the State and the private communities/individuals, to negotiate terms with other possible commercial users of traditional knowledge, and undertaking promotional activities like forming Traditional Knowledge Users' Co-operatives, in order to enable such users to access larger markets for their practices and products. Its activities will be financed from a fund created by the government of Kerala and it will be administered by a Board consisting of a chairman and four members, of whom at least one each must be from the traditional knowledge community and the scientific community.

All right-holders of traditional knowledge will be deemed to be holding their rights under a �commons license�. Under this license the right-holder permits others the use of the knowledge over which the right is held for non-commercial purposes. If any development is made using this knowledge, then under the conditions of this license this development will have to be put back into the traditional knowledge �commons� and cannot be patented anywhere. If any commercial use of traditional knowledge is to be made by any entity other than the right-holder, then the terms and conditions under which this can be done will have to be negotiated between the right-holder and the other potential user. In the case of traditional knowledge of the second category, where there is no specific knowledge-custodian and the Kerala State is deemed to be the right-holder, it will be presumed that all actual practitioners of this category of knowledge in Kerala, provided they are not classifiable as medium or large enterprises, have an automatic license for right of commercial use given by the Kerala State which is the original right-holder, but are not empowered to transfer this right of commercial use to anybody else. Only the Kerala State, the original right-holder enjoys that right.

REGARDING BIO-DIVERSITY

The second area of concern to Kerala which the policy document discusses relates to bio-diversity where there is already central legislation. For enforcing the �knowledge commons� rule on the MNCs and the domestic corporate sector, a mechanism needs to be put in place. In the realm of traditional medicine which is based largely on the use of the biological resources of the state, such a mechanism can be provided through state-level legislation that supplements the central Biodiversity Act. Such legislation will make it mandatory for MNCs and domestic corporates to accept the �commons� idea as a condition for undertaking research relating to, or the commercial use of, the biological resources of the state. This will require the additional clearance of their applications by the State Biodiversity Board apart from the existing mechanism under the Biodiversity Act.

The third area of concern for the policy document relates to the property rights over research in state government-funded and state government-aided institutions, which have become important because of �outsourcing� of research from abroad. Here the approach is to distinguish between the different sources of funding of such research. All research funded by the institution itself or the state government should be state government's property, though the government may choose in certain cases to put the research output in the �commons�; a suitable system of rewards will be instituted in such cases for the researchers. The research funded by foreign governments or by private sources, should belong to �commons� unless an exception made by the Supreme Council on Intellectual Property (SCIP) proposed to be set up under the policy. Property rights over research funded by the central government or its institutions will have to be decided on a case-by-case basis, since the latter have their own rules on this which have to be respected.

The operationalisation of this policy will throw up major challenges, arising inter alia from the Constitutional limits upon state government powers. But before these legal possibilities are even explored, there has to be clarity about the approach of the state government. Such clarity will also help in the attempt to create a national consensus on these important issues. The policy document of the government of Kerala therefore is only the first step in a rather protracted journey.