The world saw her as a feistyfem
Impervious to, that she too had a heart
Unleashing the damsel in distress in her
(This amateurish autobiographical poetic device, resonates my apparent state of helplessness and frustration – though only figuratively. Having spent two consecutive sleepless nights in analyzing the draft National IPR Policy, I lost the final draft to a technical glitch. What you will read now, is a shoddy piece of analysis done in an hour. Kindly bear with it, for I am not in the frame of mind to peruse that highly “pedantic” policy document for the nth time.)
This week should be designated as the “week of leaks in the IP world” . On Saturday, the highly contentious – TPP’s, final negotiated draft IP chapter was leaked. ( Jeremy Malcolm‘s substantive analysis is a worthwhile read). And today, just when I had called it a night (well past midnight), my phone beeped signalling that the final draft of India’s National IPR Policy had been leaked (perhaps the only disadvantage of literally living in two time zones!). Hence, burning the midnight oil seemed inevitable.
Whilst I am still in the process of reading and analyzing the draft policy, I started-off with the section on Traditional Knowledge (G.W. IP folks know how sensitive this issue is to my heart) and have made a steadfast progress towards the section on public health- for reasons best known to all of us.
Before going in for publication, there was no extensive commentary from SpicyIP. Swaraj Paul Barooh’s post is a quick snapshot on the timeline of the National IPR policy andPrashant Reddy does a quick overview of the draft text (I reckon that it will take few days for an extensive analysis to come-by).
Traditional Knowledge Section of Draft IPR Policy (Page 33-35)
Without sounding overtly dramatic, I salute to the IPR think tank for coming out with such a comprehensive policy on TK , though it’s merit and implementation is an altogether different matter. Never ever did I imagine that TK would garner such extensive attention from our policy makers.
Having extensively researched on biopiracy, TK and other associated issues as part of my LL.M. research, I will highlight and analyse some substantive issues of the policy that raises my eye-brows (Please note that I do not claim to be an expert and this is merely a feeble attempt on my part to analyse the TK policy of the draft National IPR Policy)
(I) Development of a sui generis legislation to provide a holistic and comprehensive legal framework to preserve, safeguard, protect and develop TK and TCE’s –
This proposal for developing a sui generis framework is a welcome initiative. However, not spelling out the definite contours of the proposed sui generis legislation leaves much to the whims and fancies of our “subject-matter” expert legislators (note the sarcasm!).
While, I understand that a policy cannot be akin to law, it would have benefited had the IPR think tank given some concrete suggestions on what should be incorporated in the proposed legislation. (Honestly, after riffling through the entire draft text of the policy, at the outset the policy seems banal, bereft of any concrete proposals).
(II) Guidelines for establishing prior informed consent and benefit sharing will be reviewed and strengthened so that benefit sharing is improved and assured –
Now this proposed policy again suffers from vagueness. It would have helped had specific guidelines been spelled out, their structural weakness identified and solutions to combat them proposed.
My primary concern with this part of the Draft IPR Policy is it’s complete absence to address the issue of ownership, making it superfluous. Seeking the prior informed consent of the TK holder before co-opting it, is morally, ethically and legally a sound policy. However, absence of addressing the issue of ownership makes this proposal redundant.
Following questions come to my mind – how can prior informed consent of a TK holder be sought when ownership cannot be ascertained?In whom does the ownership vest – is it the entire community or a specialized group of people in that community who spearhead the profession as TK holders?
For better illustration of the readers, take the case of Yoga – whose ownership has been a highly contentious issue. For protecting yoga and other forms of TK from usurpation, a legislative or policy initiative spelling out the issue of ownership would go a long way.
Another example that crosses my mind is that of famous “Madhubani” paintings of Bihar and Nepal – who will qualify as custodians of this art form? Will it be each artisan sufficiently skilled in the art or will there be community ownership or will ownership rights vest with a union of artisans? (There can be endless permutations and combinations on this issue and my intent is not to get embroiled into critically examining the best strategy for addressing the issue of ownership, which is worthy of a doctoral dissertation).
One of the primary objectives of constituting the IPR think tank was to – “identify areas in IPR where study needs to be undertaken and give recommendations to the Ministry of Industry & Commerce“. My not-so perfect eye sight (with glasses on) could not spot even a single recommendation.
(Dear emmetropic readers, should you spot “anything remotely in the nature of concrete recommendations”, then kindly intimate thy ignorant, blind author!)
(III) India will continue to engage actively and constructively in the deliberations in various international forums to develop legally binding international instrument(s) to protect TK, GR and TCE –
“Engage actively and constructively in the deliberations in various international forums….(BIG YAWN)” – Suffers from acute banality and vagueness. Primary point that strikes me is the absence of defining the scope of these “various international forums” – does it include WIPO, WTO, CBD or any other fourth forum whose existence I am not yet aware of (maybe the United Nations Security Council ! – readers please appreciate the humor of the situation. However, these are precisely the sort of anomalies you can expect in the absence of precision).
Have’nt negotiations been going on since the past fourteen years at WIPO? I was expecting a nail hitting policy clearly spelling out India’s strategy to press for an internationally binding legislation on TK.
Further, why is there no mention of India’s stance on pressing for addition of Article 29 bis to TRIPS. To refresh the memory of readers, six developing countries led by India had proposed to the TRIPS Council for adding Article 29 bis warranting for disclosure of origin of genetic resources as one of the requirements for seeking patent protection.
(IV) Databases will be developed for documenting oral traditional knowledge taking care that the integrity of the said knowledge is preserved and traditional ways of life of communities are not compromised –
While I am appreciative that development of databases for codifying oral traditional knowledge finds habitat in the National IPR policy, I would have applauded had the policy been based upon a permissive approach (consent of the TK owner is sought). Any endeavour aimed towards preservation of TK without involving all stakeholders (especially the owners and holders of TK) would be an anathema to the ethical, moral and human rights paradigm of intellectual property.
(V) The scope and coverage of Traditional Knowledge Digital Library (TKDL) will be enlarged to include additional medical formulations –
Given that considerable opinion has been voiced from all quarters against the structural and legal defects of TKDL and it’s inadequacy in addressing patent related biopiracy (read Gopika’s post here, Sumathi’s post here, Balaji’s post here and here, Madhulika’s posthere and my research paper here), it is unfathomable that there is a proposal for enlarging TKDL’s scope at the cost of taxpayers money (I am by no means suggesting that nothing should be done to curb patent related biopiracy).
Rather than enlarging the scope of TKDL, I was hoping to see a concrete redressal mechanism for addressing the inadequacies. (By the way, TKDL has received scathing remarks even internationally). As I have opined in my paper, protecting TK entails international negotiations – rather than creation of a TKDL natured database. Hence, enlarging it’s scope is likely to be a futile endeavour.
(VI) TKDL will be appropriately utilized for defensive protection against wrong grant of patents through selective access to patent offices abroad under confidentiality agreements-
Given that the average cost of revoking a patent internationally lies anywhere in the range of $0.2-0.6 million, as a citizen of a developing country, I would rather expect scarce resources to be directed towards welfare endeavors rather than patent revocation proceedings (Just to clarify again, I am by no means suggesting that patent related biopiracy should be tolerated).
(VII) Initiatives for international co-operation in exploration of traditional health and wellness systems will be encouraged by introducing strategic research collaborations with reputed research centres –
After all the cynical comments, I wholeheartedly welcome this proposal by the IPR think tank. Infact, my eyes were searching for exactly the same worded policy.
The Merck- Costa Rican deal serves as a model agreement which India can explore and possibly replicate (obviously after weighing the pros and cons).
(The Merck- Costa Rican deal strikes the most amongst pharma-patent lawyers in the U.S. – I was personally told about it’s existence by none other than the Honorable Gerald Mossinghoff , who also mentored my LL.M. research. There is an interesting remark that he made, which goes at the root of India- U.S. IPR standoff. I may have discussed this with many of you. Being a public forum, I will restrain making his comments public. Patriotic Indian lawyers keen to know about his remarks should talk to me in person – you shall hear nothing but the truth!).
With this, I conclude my scathing analysis of the draft IPR policy- just the portion dealing with TK. The only words that come to my mind after reading this text of the Draft IPR Policy are “banality” and “indefinite“. Not to mention, a half-hearted attempt to write IP policy – which is likely to resonate for years to come.
Prashant Reddy aptly puts it- “ I for one pray that the wrong text has been leaked“. Let’s all pray during this pious period of Navaratri for a miracle to happen. (I am fasting for straight nine days for the Goddess to manifest and overturn this seemingly scholarly draft National IPR Policy!)