The Kerala IPR Policy 2008, released on 27th June 2008 by Mr. V.S. Achuthanandan, the Honourable Chief Minister of the State, proposes legislation to prevent misappropriation of Traditional Knowledge (TK) and knowledge associated with biodiversity.

The Policy outlines that the Government of Kerala is very much concerned about protecting its rich traditional wealth comprising of traditional knowledge practices, tribal medicines, Ayurveda practices and biodiversity. Unlike other knowledge categories which are mostly deciphered in books or embedded in the biological system, this kind of knowledge attributes to and forms the basis of livelihoods of many TK practitioners, and hence the absence of any legal property rights on such knowledge may render an opportunity for the private appropriation of the Traditional Knowledge by corporates.

“While the codification of Traditional Knowledge in to Digital Libraries is a viable solution to direct misappropriation, it is feared that such digital libraries may serve as a platter for MNCs looking for private appropriation of advancements made on traditional knowledge that is not accessible otherwise” - Mr. M.Vijayakumar, Honourable Law Minister of the State told in his key note address.

Hence the Policy document finds that the possible solution could be to create rights on Traditional Knowledge and make its potential right holders aware of their rights.

The Policy of the State 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”. While the Policy envisages creating property 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.

Under the proposed legal arrangement, the custodians (tribal community, family etc.) of the Traditional Knowledge (that is preserved by them) 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 Traditional Knowledge, where it is the livelihood of numerous practitioners strewn across Kerala, 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 Traditional Knowledge 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, i.e. the right holder.

Creation of rights and obligations necessitates a Governing Mechanism for acknowledging the right holders, enforcing the rights and recommending legal action against the violators of the rights and “Common License”. Therefore the Policy advises to constitute a body called Kerala Traditional Knowledge Authority (KTKA), with which the right holders will have to be registered. It is also important that the potential right holders be made aware of the need to register the TK in their possession. ‘Traditional Knowledge Users’ Co-operatives” will be encouraged in the legislation.

The Terms like “Knowledge Commons”, “Creative Commons” etc. used in the Policy document are very much in line with the fundamental concepts to recognise “Knowledge as Commons”. Here “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. This shall not be confused with the seasoned free software concepts (or open source) and “Creative Commons” licenses like GNU GPL, LATEX etc. which mostly applies to “Expressions”. Specific provisions for such “Traditional Knowledge Commons License” will be worked out to ensure free, non-commercial reproduction and codification of the Traditional Knowledge. It is not a kind of compulsory licence, but is a kind of “deemed licence” which normally applies on the user of TK, the moment he decides to employ it for any purpose.

Though the Policy envisages to put the developments made on Traditional knowledge 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 “collectively produced sphere of ideas” or “Knowledge Commons” in the strict sense even if Traditional knowledge may form the basis of its origin. The State is more concerned about the misappropriation of “Traditional Knowledge” by corporates with minor modifications on such knowledge and hence making it patentable in their name by meeting basic minimum legal standards to qualify the novelty and “inventive step”.

To End with, I want to place on record my deep appreciation to the high social commitment and great wisdom of the chief architect of the Policy, Prof. Prabhat Patnaik, who is the Vice-chairman of Kerala State Planning Board and a world famous economist.

Regards,
R.S. Praveen Raj
Scientist - IP Management & Technology Transfer
[Former Examiner of Patents & Designs, Indian Patent Office]
National Institute for Interdisciplinary Science & Technology (NIIST)
Industrial Estate P.O., Pappanamcode,
Thiruvananthapuram - 695 019
Kerala, India