India At The Forefront Of Knowledge Commons Debate

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By Frederick Noronha for Intellectual Property Watch

NEW DELHI – What do seeds have in common with software? Or age-old medicines with copyright lawyers? And, what’s the link between ayurvedic medicines and techies talking free software in Bangalore?

Such issues are getting closely enmeshed in a deepening debate on how knowledge is shared or controlled in this new information-dominated century. This is a debate of vital relevance for a country that is making an increasingly visible global impact through its brain power, and yet has among the most impressive collections of traditional medicines and knowledge.

Diverse views surface on how such issues should be tackled, as was strongly obvious at a 24-25 August “knowledge symposium” held at New Delhi. The invite-only meet was organised by the open source software firm Red Hat (India) and the Indian Institute of Technology New Delhi.

The event brought these diverse strands together while focusing on what it said were alternative ways of looking at sharing knowledge and concepts like intellectual property.

India’s Big Stakes

India has big stakes in this debate. It is home to vast amounts of traditional knowledge – traditional systems of medicine and healthcare, like Yoga, Ayurveda, Unani and Siddha (both systems of medicine), traditional agriculture, and more.

But the planet’s second-most populous country also faces the dilemma of getting global acceptability on intellectual property issues as it integrates growingly with the global economy.
Physicist, eco-feminist, environmental activist and author Vandana Shiva was one of the articulate voices that sought to bring the diverse strands of the debate together.

“I’m happy to join those of you working to defend the commons in the field of knowledge,” said Shiva, alluding to knowledge typically available in the public domain. Shiva, who has fought for changes in India’s agriculture and food sector for over two decades, spoke on ‘Nurturing India’s Traditional Knowledge’.

“What [freely available and IP-unencumbered] open source software is to IT [information technology], open pollinated seeds are to the agricultural commons. These are the same things,” she said. “Since the past 20 years, I’ve started to save seeds and create community seed banks.”

She argued: “Biodiversity, traditional knowledge and agriculture are matters of life and death [in countries like India], depending on whether resources and knowledge are in the commons, or they are in privatised property.”

Shiva pointed to the importance of traditional knowledge, especially in the fields of agriculture, nutrition and healthcare. “In this country, we have rice varieties that are taller than this room…,” she said in the chandeliered conference room of a luxury hotel. “That helps them to tolerate floods. By just moving the gene, it doesn’t mean that some scientist has invented any gene. It is in the commons,” she added.

In a long and hard-hitting speech, the author of titles such as “The Violence of Green Revolution” and “Monocultures of the Mind” spoke about how traditional knowledge like yoga or ecological farming was being denied its “status as knowledge on a yardstick of Cartesian reductionist knowledge”.

She noted the diversification of contemporary knowledge, the difficulty of slotting part of it under ‘the scientific approach’, and charged that traditional knowledge is getting “ghettoised as if it wasn’t a science”.

Who Shall Own India’s Ancient Wisdom?

Other initiatives related to India’s traditional knowledge also were discussed at the meeting. One such initiative is TKDL, an acronym for the Traditional Knowledge Digital Library. This Indian government initiative based in New Delhi is aimed at building a database of traditional knowledge that “enables the protection of such information from getting misappropriated.”

Since an interdisciplinary team began work in October 2001, the TKDL has completed the transcription of 36,000 ayurvedic formulations into English, German, French, Spanish and Japanese. It made a presentation at the International Patent Classification Union in Geneva in the past.

TKDL Director Dr. V. K. Gupta said at the conference: “TKDL deals with traditional knowledge and the issue of patents. We’re not focused on getting patents, but on preventing its misappropriation.”

“Knowledge from the fields of [Indian systems of medicine like] Ayurveda or Siddha are very well documented. But the problem is that of language. This knowledge is documented in languages like Sanskrit, Hindi, Arabic, or Persian. Books about them are not available at international patent offices. So, there’s no understanding [about how ancient this knowledge really is],” said Gupta.

Gupta pointed out that if anything is pre-known, then existing intellectual property rights (IPR) laws do not allow it to be patented. “A majority of the patents [taken on Indian knowledge] is by expatriate Indians or multinational corporations. There are about 2,000 patents which have been wrongly issued, in our view. Each takes 11 years to fight. How do you resolve this problem?” he asked.

So TKDL’s approach is to document traditional knowledge. “We’ve done it for around 70,000 formulations in Ayurveda, and some more in the Unani and Siddha,” he added. TKDL’s team of a hundred persons have been working on this for the past five years.

Past Attempts to Patent Indian Products

Attempts have been made – not always unsuccessfully – to get patents related to Indian products, such as Basmati rice (widely grown in the Himalayan foothills), and India-derived lower-gluten genetically modified wheat strains. There was also a patent on Neem (a long-used tree sometimes called the “village pharmacy”) challenged by environmental groups, and one on the use of turmeric for treating illness (used for centuries in India).

Patents were also sought on Psyllium husk (called Isabgol, in India) — for reducing cholesterol, improving bowel movements, purposes for which it has been traditionally used in India. Fennel (saunf, by its Indian name), coriander (dhania), cumin (jeera) and sunflower products and properties also attracted patents, a development which evokes laughs in India, considering that these items have been so long used for such purposes here.

Trade and IPR as ‘War by Other Means’

“You must make sense of IPR in its context. Trade needs to be seen as a continuation of war by other means,” said Prabir Purkayastha of the Delhi Science Forum.

Mr Purkayastha’s view is shared by people of other ideologies in a country like India which feels it has not gained its fair share for centuries out of global trade deals. India’s current government also carries with it a significant influence of the Communist parties, if only because it lacks a majority on its own in the parliament.

Prithviraj Chauhan, Indian minister of state attached to the Prime Minister’s office, told the meet that India is “keeping up to” its World Trade Organization obligations. But, he hastened to add: “The open source community is performing a historic role, by reversing that which has commercialised and [trends which have] priced all information.”

Former nuclear scientist and fellow of the Third World Academy of Sciences (Trieste) Dr. V. S. Ramamurthy argued: “India has a long tradition of an intellectual property protection regime, however weak it was. The first Indian patent laws were promulgated (during the British rule) in 1856. After independence, new patent laws were put in place in the form of the Indian Patent Act 1970.”

Ramamurthy is the chair of the board that controls India’s prestigious IIT technological training institutions, that has created many top technologists for global industry. But, he said, while India had joined all international negotiations there “are discomforts” domestically.

Scientists Historically Resist Patents not in the Public Interest

“A significant number of people, both within the scientific community and outside, believe that today’s strategy in handling intellectual property assets is flawed,” Ramamurthy said. “It is against the traditional belief that knowledge is a public property, particularly knowledge for public good.”

Ramamurthy went on to cite the case of Sir Jagdish Chandra Bose, India’s physicist who pioneered the investigation of radio and microwave optics. “His reluctance to any form of patenting is well known. It was contained in his letter to (Indian Nobel laureate) Rabindranath Tagore dated May 17, 1901 from London.”

“It was not that Sir Bose was unaware of patents and its advantages. He was the first Indian to get a US Patent (No. 755840) in 1904. And Sir Bose was not alone in his avowed reluctance to patenting. Roentgen, Pierre Curie and many others also chose the path of no patenting on moral grounds,” said the former atomic scientist.

What Model is Best for India?

There is also anger over some recent developments. Red Hat India’s Venkatesh Hariharan pointed to attempts to patent yogic postures, under the name of Bikram Yoga, in the United States recently. “When asked, why he was doing it, the expatriate Indian’s answer was, ‘This is the American way of life’,” Hariharan said.

“These are models that we need to look at. Is that kind of model applicable to India?” Hariharan said. “If we [in India] had patented the zero, what would have happened to the world of IT? Would one of the most famous persons in the world of IT have had so many ‘zeroes’ behind his net worth?”

Shiva argues: “Ideas used by Microsoft and Monsanto cause despair across the globe. You need to give justice to farmers, not push them to extinction.” She spoke of the growing cases of farmer suicides in central India, many hundred cases each year, believed to be caused by their financial distress.

In Shiva’s view, the patent regimes are based on an assumption that the only incentive for human beings is making money. But others, like the young Indian lawyer of Chinese descent, Lawrence Liang, see the issue differently. Liang believes that the “first generation” of critical scholarship on intellectual property in India “emerged in the context of biodiversity and traditional knowledge, which has a nationalist twist to it”. He sees this emerging from “an older debate around Western modernity versus tradition, and Western epistemology versus the indigenous context.”

What Way Forward?

Liang points out that Indian campaigners like Shiva, Suman Sahai, and Darshan Shankar have done work on biodiversity. But, he feels, these debates remain dependent on the discourse of development, pitting developing versus developed countries. It responds to a “crisis of property,” and, in Liang’s view, seeks a “strengthening of property rights within a nationalist model.”

Others like legal consultant Sudhir Krishnaswamy suggested that there was a contradiction in the way India was trying to defend its traditional knowledge. While multinational corporations were being criticised, the solution proposed was to make the national government even stronger, he noted. This led to disastrous consequences, for instance when the government took control of the forests, Krishnaswamy said.

Dr. Satyanarayan “Sam” Pitroda, an expatriate Indian who now heads the national Knowledge Commission, talks about creating the building blocks for new knowledge creation from India. His focus is less on how to retain control over traditional knowledge.

Professor Anil Gupta, the editor of the 17-year-old HoneyBee magazine, highlights issues of traditional knowledge in distant places like Argentina. His view is that this knowledge needs to be protected by defensive patents favouring the villagers and communities that created it.

But pointing to contemporary issues including pesticides allegedly entering Coca Cola and Pepsi Cola in India, due to the excessive use of agricultural chemicals, and the death of its traditional form, Shiva stressed her point. “If you force computer users to pay royalties to Microsoft… or if you force farmers to pay royalties to Monsanto, it is violative of the [Indian] Constitution,” she said.

And Shiva sent out a loud message as she concluded: “Thank you for holding this meeting. There’s too little of this happening. And I’d like to tell Red Hat that this red saree [a reference to the colour of her clothes] is more than willing to make this happen.”

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  1. Ruchi says

    The comments of Ms Shiva and other prominent persons against IP shows a lack in their proper understanding of the IP system,it is not a debate of the public ownership versus private ownership as they project but a system to encourage research/innovation aswell as healthy competition among the stakeholders for a limited time,after which the invention automatically falls in public domain, according to existing laws nobody can patent a Traditional knowledge or anything already known on the date of application i.e article,substance ,apparatus,orprocess, so usurping the public property by a private interest is not possible unless bad patents are granted i.e the rule of law is not followed because of the malfunctioning of patent offices due to lack of proper infrastructure or misutilisation of available resources,the people who are interested in protecting the public property should put their energy in pursuing the govt to develop an efficient Patent office/IP office with worldclass database available to the examiners and search available to public

  2. Yeshwanth says

    I agree partly with Ms.Ruchi that Ms.Shiva and many prominent people speak with improper knowledge of the IP laws. However, Ms.Ruchi is wrong when she says that the IP regime improves innovation. Increasing evidence points out exactly opposite effect. What people least understand becomes the most important in the IP regime and that is the power of Legal System. Rule of law is good to speak about, but what is rule of law and to be on the more practical side, rule of law is nothing but the interpretation of what law is as laid down by a JUDGE and therefore, the JUDGE and the lawyers become important players and this aspect is mostly neglected by most of us. Take for eg.TKDL. Mr.Gupta would believe that TKDL will prevent patenting in the TK system. But patent documents are extremely technical and when a lawyer knows what is in the public domain, he can carefully draft the patent to go around the prior art. and thankfully for the interested parties a whole list of formulations is going to be available. There would be a debate saying that TKDL will have confidential areas, but if u speak of public domain in many jurisdiction you may not be able to protect the confidentiality of the TKDL database. However, in line with the government policy TKDL is always a remedy. Whenever, the government of India doesn’t know how to regulate a sector they usually BAN it and in the case of TKDL, when they couldn’t prevent or fight the pirates of TK, they chose to open it for all and have a FREE FOR ALL regime.

    if MS.Shiva and others agree, TK in india can be well protected and the pirates fought better with the new biodiversity Act. But then again, the regulatory authority is run by the government and it needs to be open to new ideas and needs to pursue aggresive policy.

    As for MS.Shiva, I can give examples of scores of judgements of the Indian courts which are TRIPS +. The NGO’s in India usually make a hue and cry whenever the legislature makes a law or amends a law, but they are quite unaware of the judge made laws which has the same power as the laws and statutes….AND for IP WATCH……WATCH INDIA CLOSELY

  3. says

    The point on the Issue of TK is not to discuss and discuss, yes by this we can manage our TK. The need of hour is how to act and how to benifit our farming community through the commercilisation of TK.

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