First Publication Date: 16th January 2010
This is in furtherance of the post on opening the Traditional Knowledge Digital Library (TKDL) for public access in order to further research and development of traditional knowledge. As I had stated in my post, making TKDL available under an open source model would enable the development of traditional knowledge and also safeguard the interests of traditional knowledge holders (“Holders”). The model I am proposing hereunder is based on the success of the Open Source Software (OSS) model.
To give a quick overview, the OSS model is based on OSS licenses that grant rights to copy, modify, use and develop software under certain conditions. The objective of the conditions is to enable the use and distribution of the software in the light of the philosophy with which the software is made available. The restrictive nature of the conditions depends on the objectives sought to be achieved by the initial developer of the software. Based on the objective of the initial developer, the license terms may be either very restrictive like that of GNU General Public License or liberal like the BSD LIcense. Most licenses generally include conditions with respect to making the source code available, attribution and mode of distribution.
An OSS license is considered to be accepted by a person as soon as the person copies or uses the software. The OSS licenses have been considered valid and enforceable by US, UK, French and other courts. Most courts have stated that the licenses would be valid even if there is no direct interaction between the licensor and the licensee. The fact that most companies violating the terms of the license have been forced to comply with the terms in and outside the courts is an indication of the value of the OSS model.
Considering the success of the OSS model, I would like to propose an open source model for access of TKDL as well. The OSS model is based primarily on copyrights and in certain instances patent rights granted to the software that is made available under the OSS license. The developer uses his copyrights and/or patent rights in the software to enforce terms of the OSS license. In the absence of such rights, the model would not work efficiently. Therefore, the first aspect to be considered is the rights held by CSIR in TKDL and whether such rights can enable the objective of CSIR to prevent misuse of the information.
As CSIR has gathered most of the information from traditional texts or public resources and has translated or written the information in english, it would have copyright protection over the literary information in the database. Having said that, the rights are subject to the copyrights in the traditional text, most of which I am assuming might have expired by now. Assuming that CSIR owns copyrights over the information in the database, it can by using such rights prevent copying of such information or impose conditions for copying of such information. By imposing conditions with respect to use of the information, CSIR can prevent misuse of the information or misappropriation of the information. However, as the same data is also publicly available from other sources without any restrictions and as copyright extends to only the expression of information and not to the product or process described in the information, such conditions may not be effectively enforced and may be easily dodged.
As the Indian Patent and Biodiversity law imposes conditions on Intellectual Property protection and commercialization with respect to creations/inventions developed from traditional knowledge, the rights available under such laws may also be used to impose conditions on usage of information in TKDL by any person. However, the rights under the said laws are specific to India and may not enable enforcement internationally. Now that India is brain storming on passing a specific traditional knowledge legislation, rights granted to Holders and to traditional knowledge databases under the law may also be utilized to impose conditions under an open source model.
Despite its weaknesses when compared to the OSS model, an open source model for TKDL would be quite effective in regulating the use of traditional knowledge and safeguarding the interests of Holders. The model will ensure that traditional knowledge is extensively used and developed, rights of Holders are safeguarded and misuse is prevented to a large extent.
The model I am proposing is as follows:
TKDL will be made available to the public for free access under an Open Source License. The license will grant the following rights to any person who wishes to access the information:
Right to copy;
Right to use; and
Right to modify.
The rights will be subject to the following conditions:
Attribution must be given to the Holders as and when the information is used to develop creations, inventions or products on them wherever possible and literature;
Source of information and details with respect to Holders must be cited in patent and other IP documents;
Commercial benefits from the information must be shared with the Holders as per national laws; Any use that is counter-productive to the ends of traditional knowledge protection will result in termination; and so on.
The strengths of the model are as follows:
Enable free access and development of traditional knowledge;
Enable policing of IP protection over traditional knowledge by the public; and
Ensure attributionand benefit sharing.
The weaknesses of the model are:
The rights on which the model is based is weak; and
The model may not be enforceable internationally due to differences in rights granted on traditional knowledge in various countries.
Despite the weaknesses, the proposed model would play a very important role in encouraging development of traditional knowledge and also safeguard the interests of Holders to a reasonable extent. It is definitely better then the existing model being followed by CSIR, which based on the fear of misuse does not let any one to use the information in TKDL. In other words, what CSIR is stating through its policy is – We wont use the information and we wont let others use the information, which is not really good. Furthermore, the existing model gives too much discretion to CSIR, which may result in arbitrary decision making. To the contrary, the proposed model will encourages development of traditional knowledge through public participation by reducing involvement of a single entity. In the light of the existing legal scenario, I believe that the proposed model is well suited than the existing one. Having said that, the model would be best suited when national legislation and international arrangements are in place.
At present the open source model licencing for TK will certainly counter productive. TK once revealed will be used as a spring board and incremental innovations will be made out of the TK and they will be patented thanks to the variance in the filtering tests of obviousness and prior-art in various jurisdictions. Till the international convention is materialized it is very difficult to secure the benefit sharing to the stakeholders from the users. Alternatively, India should enter into bilateral treaties with the countries with potential innovators who use the TK for further innovations. This treaty is like the one India entered with number of countries for sharing TKDL with the Patent offices. With this kind of arrangement we can allow the people to use TK with conditions Dr. Kalyan stipulated in his OSS model, and the benefit can be collected by the TK board proposed to be constituted under the bill and the same may be distributed to the concerned right holders.
Comment recieved from Dr. DTMK through email
There is a need for TKDL to be in the public domain. The access to TKDL would encourage research and development in Ayurved, Yog, Unani, Siddha and Homeopathy (AYUSH). The IPR granted for TK e.g. a patent based on TK in Ayurved , Unani or Homeopathy or an accessory for a posture in Yog should be clearly distinguished in the prior art search.