India, WIPO Connect On Traditional Knowledge Protection, With Or Without Patents

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The World Intellectual Property Organization went to India last week to highlight the country’s success in creating a digital library of Indian traditional knowledge, which it uses to prevent illegitimate patenting of its resources. But whether WIPO found a way to fit the Indian project into the UN agency’s mission to protect and promote intellectual property rights was unclear.

The 22-24 March conference was supported by the Indian government for “internationalising India’s pioneering Traditional Knowledge Digital Library (TKDL) as a template for the benefit of developing countries seeking to protect their traditional knowledge,” according to the press information bureau of the government of India. Now, according to WIPO, the director of the library is interested in finding ways to use the library “to create new IP, within the existing IP system, for example in open innovation models.”

The conference was co-organised by WIPO and India’s Council of Scientific and Industrial Research (CSIR). The CSIR has a somewhat checkered past in terms of representing the Indian government with WIPO.

India has been in WIPO’s sights for several years. In 2005, India implemented a new patent law in order to comply with the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), creating a large new market for WIPO activities. Western lobbyists have worked to increase understanding in India of the potential economic opportunities in patenting, which is significant for a country that is the leading producer of generic medicines and has a deep supply of biodiversity and traditional knowledge. Western firms also have fought India’s patent law in court to try to weaken provisions giving India the ability to reject patents.

WIPO Director General Francis Gurry, former head of patents at WIPO, has wooed India by hiring a top Indian negotiator to be his chief of staff, and previously engaged the former Indian ambassador to Geneva to be a special advisor.

The Indian government has been fairly pragmatic about these strokes by WIPO, and about patenting. But the WIPO chief of staff, Naresh Prasad, was quoted in a WIPO press release from the event as saying it will be up to WIPO members if they want the organisation to join with the CSIR to make India’s digital library a model for other countries and to focus it on making traditional knowledge a source of innovation that could “inspire life-saving medicines.” This suggests he is encouraging India to move toward more patenting.

When he was named to WIPO in 2009, Prasad was accused by opposition party members of breaking Indian government rules requiring a grace period before joining any organisation at which an official had represented the government.

CSIR also had a run-in related to WIPO. In 2005, WIPO held an invite-only event outside Geneva intended to build support for a WIPO initiative to push patent harmonisation favoured by developed countries. CSIR Director-General R.A. Mashelkar chaired the event, and was represented by WIPO (without objection from the CSIR director) as India offering support for the WIPO initiative. The Indian government later clarified its opposition to the initiative and that Mashelkar attended on his own behalf (IPW, WIPO, 10 April 2005).

Patents and the TK Library

International debates in recent years have focussed on how to give greater protection to local communities’ knowledge and biological resources, while also allowing for some commercial exploitation to their benefit and that of the rest of the world. Patents have been seen as inappropriate because they require making secrets public and give only 20 years protection – not very comforting for societies whose practices reach back hundreds of years.

The library was established in essence to defend against patenting after a protracted battle to regain Indian control over long-used but little documented products and practices, and has been used to undo patents granted outside India on Indian traditional knowledge, according to the Indian press release. Now, however, it may be used to promote more patenting.

According to the TKDL website, India is “the only country in the world to have set up an institutional mechanism” to protect its traditional knowledge and prevent the grant of illegitimate patents. It is a collaborative project between CSIR and the Department of AYUSH, Ministry of Health and Family Welfare.

The “TKDL technology integrates diverse disciplines (Ayurveda, Unani and Siddha), languages (Sanskrit, Arabic, Urdu, Persian and Tamil) and converts and structures the available information in 34 million pages of ancient texts into five international languages (English, Japanese, French, German, and Spanish),” says the website.

India signed TKDL access agreements with the European Patent Office and patent offices in the United States, Canada, Germany, the United Kingdom, and Australia. An in-principal agreement has been reached with the Japan Patent Office and negotiations are ongoing with the Intellectual Property Office of New Zealand.

According to a WIPO press release, representatives from 35 countries were in Delhi for the meeting to benefit from India’s experience in TK protection. WIPO member states have been negotiating a legal international instrument to protect traditional knowledge for years, and talks recently began advancing in the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC).

Gurry described the TKDL approach as complementary to the work currently underway in the IGC. “The IGC’s negotiations are about developing the international legal architecture. In parallel, however, there is an important supplementary role for practical initiatives, which can change the international landscape often faster than legislative or normative approaches,” he said.

To help with the IGC negotiations, expert working groups have been convened to meet between IGC sessions and will provide negotiating texts for the next meeting of the IGC from 9-13 May (IPW, WIPO, 4 March 2011).

According to WIPO, Gurry said that India’s library could be a good model for other countries and said WIPO was ready to facilitate international collaboration. However he cautioned against a “one-size-fit-all” solutions and the “Indian model might need to be adapted to the specific situation of individual countries, in particular where a community’s TK is held orally.”

The conference’s objectives were to share experiences and information on the role of a TKDL in the documentation of traditional knowledge, identify the IP issues and technical implications of a TKDL, and explore the role and functioning of the TKDL within the international IP protection system.

According to the WIPO release, there have been “some political concerns associated with TK documentation projects, which are perceived by some as ‘facilitating biopiracy’, since documentation projects may facilitate access to TK that was not publicly available before, or TK that had been disclosed without the free, prior and informed consent of affected indigenous and local communities.”

During the last IGC expert working group meetings on traditional knowledge and genetic resources, indigenous groups voiced concern about what they felt was too much focus on the IP rights system to protect genetic resources and associated traditional knowledge against misappropriation (IPW, WIPO, 1 March 2011).

William New may be reached at wnew@ip-watch.ch.

Catherine Saez may be reached at info@ip-watch.ch.

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