The Covid-19 pandemic has changed the world as we know it. It has redefined the bounds of workspace, and merged it with our homes. Hitherto, working-from-home was unheard of as far as the practice of law in India was concerned. While some firms did allow a modest hybrid work arrangement, most law firms were traditionally set up, requiring lawyers and administrators to be physically present in the office.

The shift from working in a traditional firm setup to working remotely was rather sudden but, over the past year, things have changed, boundaries pushed and new systems developed. Law firms have devised internal policies to be followed by the retained lawyers, invested in technological support to assure smooth functioning like digitisation of documents, evidence, etc., and have been educating their employees on best practices.

However, work-from-home is concomitant with the pandemic. Firms, as well as lawyers, have been waiting to get back to working normally once the situation eases. This is primarily because India’s legal and judicial processes are not yet fully equipped or ready for  a complete shift towards remote work. This is because a lot of the legal-administrative work still needs to be done physically like  examining voluminous pages of evidence or cross-examination of witnesses, etc. .While courts and other forums have started conducting video conference (VC) hearings, there is still much to be accomplished in terms of fixing/upgrading the tech support for conducting smooth VC hearings, digitisation of court records, enabling easy access to general litigation or chamber lawyers.  

In my opinion, IP firms seem to have an edge over general litigation firms. Even before the pandemic wreaked havoc, most IP-related at least transactional or prosecution work could be done via the internet- be it conducting searches, filing registration applications, or communication between the firm and the relevant authorities- to give a few examples. With the pandemic forcing IP authorities to hear even contentious matters online, the primary offline-exclusive work has been brought into the remote work-able category. At present, most IP firms have implemented complete work-from-home, and few operate in a hybrid set-up.

In this author’s view, IP firms can consider going virtual even after the pandemic ends to reap the benefits of work-from-home which inter alia allows greater diversity and inclusion. Remote work offers several advantages, such as reducing costs by minimising the need for physical office space and associated expenses, bringing in the possibility of flexible work timings, attracting a wider talent pool as a potential hire’s geographical location stops being a factor, increased productivity, reduction in overall carbon footprint, etc. If an IP firm does not want to go completely virtual, a hybrid workspace can surely be created, wherein lawyers get to work from their homes for a set number of hours or days each week, and still be efficient and productive.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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Folklore: Repository of Culture 

Folklore, a part of cultural heritage, has witnessed worrying levels of exploitation and misappropriation in the last decade, especially owing to the advent of technology. Folklore denotes the age-old traditions which are curated over a considerable stretch of time by the creative expressions of a community, traversing over generations.

Copyright Regime vis-à-vis Folklore 

Protection of folklore is sine qua non to preserving the identity and uniqueness of cultural heritage, especially of indigenous people. The Copyright Act, 1957 (“the Act”) serves as a plausible armour to preserve and protect folklore by controlling its unauthorized usage, distortion, adaptation etc. .

The Act protects original literary and artistic works thereby securing an exclusive right in favour of the authors of the creative works for a limited time, ensuring no replication, mutilation, and adaptation of such works occur without the authors’ express consent. While the Act is bereft of any express provisions prohibiting misappropriation of folklore, some forms of it can be identified as copyrightable subject-matter. However, extending copyright protection to folklore exposes it to several challenges on account of certain inherent contradictions.

The Act is inadequately placed to salvage folklore in the sense that ‘originality’ which is a mandatory criterion for any creative work to be copyrightable cannot be ascertained in folklore. This poses an especial challenge for indigenous persons to secure copyright in folklore. It is simply unrealistic for them to fit the shoes of ‘originality’, as envisioned under the Act. This is owing to the several rounds of social variations folklores undergo over years. The authorship of folklore is not individual but social, and it is not ascertainable but diffuse. Unsurprisingly, it is difficult to determine authorship in folklore as required under the Act. Even if there are provisions to accommodate anonymous authorship, not all folklore can be brought under its realm since intangible folkloric expressions in the forms of dances, folktales, etc. cannot be attached to a tangible medium and are ultimately hit by the fixation rule.

Even though ‘originality’ has not been defined under the Act permitting judicial accommodation, recognising and enforcing copyright in folklore entails more accommodation than has been forthcoming. This is perhaps unavoidable given that the ethos of the Act is itself alien if not also violently antithetical, to indigeneity.  

The limited term of protection under the Act is also hard to reconcile with the intergenerational perpetuity of folklore.

Conclusion –

The copyright regime reflects deep rooted inadequacy to safeguard folklore from obliteration. A sui generis framework to recognize folklore, foster it and defend against its misuse is critically needed.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP

A Primer to Traditional Knowledge Protection in India: The Road Ahead is a paper published on June 03, 2021 [Chakrabarty, S.P., Kaur, R. A Primer to Traditional Knowledge Protection in India: The Road Ahead. Liverpool Law Rev (2021). https://doi.org/10.1007/s10991-021-09281-4]. The paper aims to facilitate a better understanding of Traditional Knowledge (TK) and the social, economic and cultural benefits India can reap through the incorporation of Traditional Knowledge in the realm of Intellectual Property Rights.

The paper highlights that although India possesses vast traditional/indigenous knowledge, the same has been termed as primitive, backward and unscientific. The reason for this is because of cultural heterogeneity coupled with notions of superiority of modern scientific ideas over indigenous knowledge. This has significantly lessened the bargaining power of traditional communities over the years. The paper points to how unmoderated scientific interventions have caused an imbalance and damage to the environment. To solve this, the paper suggests reintroduction of  indigenous agricultural practices and traditional knowledge.

The paper draws attention to biopiracy as a challenge. Biopiracy refers to the appropriation of knowledge and genetic resources of indigenous communities by individuals or institutions that seek exclusive monopoly control (patents or intellectual property) over this knowledge. The problem is compounded by the fact that the majority of this knowledge is practiced within a closely knitted community and thus remains technically unpublished. Through examples of Neem and Rosy periwinkle, the same is explained in the paper.

The paper also features laws and policies protecting traditional knowledge in India. The paper highlights that the introduction of “The Biological Diversity Act, 2002”, the “Protection of Plant Varieties and Farmers’ Rights Act, 2001” and the “Geographical Indications of Goods (Registration and Protection) Act, 1999” accommodated traditional knowledge with IPR and were a step in the right direction. Further, creation of Traditional Knowledge Digital Library where a list of more than thirty thousand codified Traditional Knowledge practices of India is made available has led to a significant decline in biopiracy cases and frivolous filing of patent applications. Similarly, the National Innovation Foundation, established in 2000, engages with knowledge holders in protecting their innovations in accordance with the existing IPR regime.

The paper mentions a new proposed protection parameter known as ‘Tiered and Differentiated’ Approach introduced by an expert committee of the WIPO. Under this framework, various kinds of Traditional Knowledge and Traditional Cultural Expressions (TCE) are delineated, primarily based on their degrees of diffusion of knowledge. This, consequently, tries to identify the extent of exclusive rights that the custodians of such TK and TCEs would be entitled to receive. On the basis of this parameter, the exclusive right may lead to conferring licence on clans or communities to explore such TK.

The paper concludes that efforts must be made at the international level to push WIPO to urgently consider this discourse to protect Traditional Knowledge. The paper also recommends that in the meantime, India should also take further reasonable measures to protect the Traditional Knowledge that the country still possesses.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP

The subject commentary [https://www.currentscience.ac.in/Volumes/121/01/0019.pdf] focuses on the traditional bamboo art “Kannadipaya” and highlights the need to protect it from dying an otherwise inevitable natural death. In that, the commentary cautions against the extinction of the art form and proposes to use proper branding and geographical indications to protect it.

Origins and working of Kannadipaya:The commentary explains that for centuries, bamboo art has captured the imagination of artists and has been a special choice for artisans and craftsmen. In Kerala, there are certain communities in Kerala which, use a type of bamboo to weave what is called the Kannadipaya. Kannadipaya loosely translates from the local language as ‘mirror mat’. It has been named so due to its highly polished surface which shines like a mirror.

The ancient knowledge of this art form is present in the Urali, Mannan, and Muthuvan tribal communities of the Idukki district. The commentary explains that the uniqueness of Kannadipaya is because of its design, weaving method, type of bamboo used, and preference for the fourth peeling or sliver from the bamboo culm internode. This mat has an extremely polished surface, which is smooth and reflects light just like a mirror. These mats, apart from having a very unique design, are extremely flexible – so much so that a two-meter mat can be folded and put inside a culm of bamboo of diameter less than 10cm. Anecdotes indicate that earlier, such mats were used to be presented to kings and other state dignitaries on special occasions. This art of weaving is a traditionally inherited knowledge of these communities.

Danger of extinction: The commentary explains that besides weaving mats, these communities are engaged in various works under the Mahatma Gandhi National Rural Employment Guarantee (MGNREG) scheme. The commentary explains that weaving does not prove to be a constant source of income for the artists. Further, the younger generation has not taken to the art due to its time-consuming and laborious nature. As such, the art is now in danger of extinction. There have been examples in the past where a traditional art form has died a natural death due to lack of documentation and conservation measures.

As such, the commentary calls for deployment of measures such as proper branding and geographical indication (GI) registration to protect the art form. It endorses the view that the GI registration will help prevent the misuse of traditional goods as well as augment financial gains to traditional weaving communities through marketing this unique product to other countries.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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Currently, AI blends technology with the law. Society seeks legal machines with abilities of a computer or controlled robot to perform legal errands when it comes to dispute resolution. Amidst the Covid-19 pandemic, human experiences in the digital realm have accelerated with AI based machines like voice aids. Big organizations are applying AI by various techniques in creating their innovations. AI itself is at least a part inventor and somewhat qualifies for novelty. It would be only fitting if AI is also utilized to draft the patent claims and to examine patent applications for securing patent grants. It would be no less fitting if AI harnessed claim construction and reading of claims onto accused products and processes where infringement is alleged.

One of the primary fears is AI relies on the collection of big data inputs and outputs which keeps on changing. Can we depend on such AI-Results in selecting particular data among billions of data for the purpose of analyzing the patent claims?

For instance, when a suit for patent infringement is filed, the court examines the claims. If we bring AI into the picture to analyze the claims, then it may set a high default obviousness standard and not of a PHOSITA (Person Having Ordinary Skill in the Art) who is a hypothetical person to read and understand the innovation and its utility aspect. AI might prevent granting flawed patents but lack the human subjectivity to grant what real sensible humans would consider good enough patents.

Advanced digital innovations have paved the way for monitoring, analyzing, and optimizing various tasks. By enforcing policy instruments and methods for executing AI in the field of science & technology may be fruitful for analyzing the claims but it will imbalance the scale between society and technology. AI-enabled machines either can process or make use of machine learning algorithms but society may not be ready to accept it. 

Humans in the field of law, especially those who do not have a background in technology can feel threatened by this. Human analysis of the output of AI is easier to accept. The capabilities of AI, however, already exceed such restricted use. AI can do more, from interpreting the technical characteristics mentioned in legal language to what and how to apply. This promises to solve many challenges in the patent domain and assist the decision-maker. To benefit from it, what we seek is not just more powerful AI tools, but more comforting and inspiring human-interfaces. 

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP