India's IPR policy: Being egalitarian or foolhardy?

If one takes this reality as a given, especially in the Indian context, then the dilemmas of govern-‘mentality’ might not come as a surprise anymore. Here is a closer look at the much controversial Intellectual Property Rights (IPRs), and some recent official articulations on it.

IPRs like patents, trademarks or copyrights, supposedly protect  new and innovative products giving the inventor private rights over their sale, import, export and distribution. Any commercial use of the product cannot be without due permissions and royalties to the ‘original’ inventor.

This is what large seed corporations and agriculture research giants are trying to cash in on. IPRs today are a mainstay of profit generation of many corporate and research bodies, be it agriculture, software, art, or medicine. Envisioning a world as it indeed was before — without IPRs, is considered to be a foolhardy dream. Ironically, many of the real innovators in traditional systems of medicine and small farm agriculture continue to situate themselves within a non-IPR world.

So, is Government of India indecisive or confused about which world it wants to belong to and protect? On the side of private profit or on encouraging common heritage and growth of shared knowledge and collective systems?

In August 2009, after a long hiatus the ministry of environment and forests (MoEF) released its latest state of environment report (SOE) 2009 for India. It has reference and makes use of text from page 25 of a 2002 briefing put out by two NGOs, Grain and Kalpavriksh titled ‘Traditional Knowledge of Biodiversity in Asia-Pacific — Problems of Piracy & Protection.’ The SOE deeply questions the role of IPRs and states that IPRs as prescribed through international treaties are being used by commercial interests to gain ownership and control over traditional knowledge. The increased support of the government in facilitating this exercise is also acknowledged and also the fact that communities are struggling to sustain traditional practices in adverse conditions.

On the same page of the SOE is a set of recommendations on traditional knowledge protection. Therein is a very refreshing mention, that one of the ways forward is actually examining and highlighting alternatives to IPRs to be able to protect traditional knowledge. It also states that there is a need to strengthen a unified demand to amend and review the World Trade Organisation’s TRIPs agreement, of which India is a signatory. Since the report is signed and endorsed by Jairam Ramesh, Union minister of state (environment and forests) and Vijay Sharma, the current secretary, MoEF, one has good reason to believe that the MoEF truly agrees to this non-IPR position.

But actions and other statements from the same ministry stand in contrast. The MoEF, its biodiversity regulations, the National Biodiversity Authority under it, all convey that documentation of traditional knowledge (TK) into digital libraries and databases is the first step in the protection of TK. The next step is to grant access of these databases to international patent offices so that they can check any existence of ‘prior art’ before granting of patent rights to the applicant!

This can certainly not be classified as a ‘non-IPR approach.’ A memorandum of understanding (MoU) has already been signed with the European Patent Office in February 2009 granting the EPO access to our Traditional Knowledge Digital Library (TKDL) and another like MoU is due to be signed with the US Patent Office anytime now. This has been reported by the minister, MoEF in the press coverage of what he said during the inauguration of the new office of the National Biodiversity Authority (NBA) in Chennai.

But are the European (EPO) and US (USPTO) patent offices interested in the TKDL for verification of any infrignments? Or would the access to this centralised database be to delve deeper to create new ‘innovations’ based on the knowledge contained therein? The TKDL currently contains transcriptions of over 2 lakh medicinal formulations from 148 books and 230 volumes of Unani, Ayurveda, Siddha besides 500 postures of Yoga.

Quite interestingly, the ministry of human resource development (MHRD) as early as 2006 had written to the prime minister that access to International Patent Offices should not be granted before a national access policy is finalised, and if access is granted then it will be a violation of India’s commitment to the Convention on Biological Diversity (CBD). The CBD mandates the principles of prior informed consent and disclosure of origin of the access before an IPR can be sought. The CSIR and the ministry of commerce’s department of industrial policy believed that since the knowledge in the TKDL is all public domain knowledge, the CBD policies don’t apply to it.

These arguments were ‘duly’ considered before access was granted to the EPO. It may be noted that India’s sui generis system for protection of traditional knowledge to be elaborated under the Biological Diversity Act, 2002 (as a follow up to CBD) is still to be worked out.

Yet, we continue to be keen to create new databases and grant access to international IPR offices as GoI ironically sees it as a means of protection of traditional knowledge. How about seeking real alternatives to the IPR system as stated in the new SOE report by the MoEF?

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