Scope of research in Traditional Medicines, TKDL and beyond

Developed from experience gained over the centuries and adapted to the local culture and environment, Traditional Knowledge/Traditional medicinal practices were transmitted orally from generation to generation. It tends to be collectively owned and takes the form of stories, songs, folklore, proverbs etc. attached to cultural values, beliefs, rituals, community laws and local language.

Research in Traditional Medicines shall be encouraged for the better understanding of the mechanism of action of drugs being used, chemical reactions happening during its processing by the body, active principles responsible for the particular action of the drug and the identification of the molecules responsible for toxicity reduction etc. The potential portfolios of research include standardization of various drugs, modifications in the ‘form’ and ‘route’ of drug administration, enhancement of shelf-life of the drug, quality standards of drug production, and innovations in processing, packaging, storage, transport, delivery etc. There is no bar on the researchers to take out a patent on the substantially improved version of Traditional Knowledge or on development of new drugs based on Traditional Medicine principles.

However misappropriation of Traditional Knowledge by private business outfits has become quite rampant nowadays, owing to the vulnerability of it being “passed off” as inventions. Though "Intellectual Property" does not include "knowledge" in the strict sense, plenty of patents have already been taken on Traditional Knowledge (Especially Traditional Medicines). Of course, there are a few sagas of successful revocation of some of those patents, but at the cost of exchequer. In the recent past, CSIR India has been engaged with creating a traditional knowledge digital library (TKDL), a database that will serve as "prior art" against any move to register patents based on Traditional Knowledge.

While the codification of Traditional Knowledge in to Digital Libraries and sharing it with patent offices is a viable solution to direct misappropriation, it is feared that such digital libraries may serve as a platter for capitalists looking for private appropriation of improvements on such traditional knowledge that is not accessible otherwise. 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 TK associated with the invention to the claimant. Patent Examiner can limit the scope of a patent claim or reject it altogether, only if he/she gives the relevant extract from TKDL to the inventor to show that it is a “prior art”. It is going to be a great opportunity for the fraudsters to file patent applications purely on conceptual grounds (which would look like as if they had performed the invention), only to see that they could fetch the authentic information on a TK practice/product.

It is debatable whether TKDL stops Bio-piracy or facilitates it. The Concepts like “Prior Informed Consent”, “Access and Benefit Sharing” etc. have proven to be the wrong tools to make the Knowledge in the custody of Traditional Practitioners available for further research while upholding their interests. A sui generis legislation for the protection of Traditional Knowledge is the need of the hour.

Suigeneris legislation for “rights” on Traditional Knowledge : Kerala’s IPR Policy Imperative

Kerala IPR Policy released on 27th June 2008, finds that the possible solution could be to acknowledge the deemed rights for the Traditional Knowledge holders and make them aware of their rights. The policy document proposes to commit all traditional knowledge, including traditional medicines, the practice of which sustains livelihoods of many, to the realm of "Knowledge Commons" and not to the "Public Domain". “Knowledge Commons” refer to the knowledge, which is the collectively produced sphere of ideas and which is left unencumbered for the greater benefit of all.

While the Policy envisages proprietary rights on traditional knowledge, all the right holders will be deemed to be holding their rights under a "Commons License", wherein the right holders shall 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.

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 shall 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 of the deemed license are to be laid down in the legislation.

According to the policy document, the custodians/preservers of the TK (viz. tribal community, family etc) will be acknowledged as the right holders, but they are obliged to subject the TK possessed by them for the non-commercial purposes of all. Hence the knowledge is revealed for documentation, and enabling further research thereof. However these right holders can license the TK under their possession to others for commercial purposes on negotiated terms and conditions in accordance with the provisions of “Commons Licence”. In respect of such TK, where it is the livelihood of numerous practitioners strewn across Kerala, the State will be deemed to have 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 right for transferring licenses will solely be enjoyed by the State.

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 cost need not form part of the "Knowledge Commons" in the strict sense even if TK may form the basis of its origin.