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fact that the majority of this knowledge is practiced within a closely knitted community and thus remains technically unpublished.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.

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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.

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The United Nations Educational, Scientific and Cultural Organization (UNESCO) has published the seventh edition of its quinquennial UNESCO Science Report on June 11, 2021, titled ‘The race against time for smarter development’. The Report analyses steps taken by various countries to promote scientific development and innovation, and the results thereof, over the period of five years from its previous 2015 edition. It has a dedicated Chapter on India, authored by Professor Sunil Mani, Director and Professor of the RBI Chair at the Centre for Development Studies in Trivandrum, Kerala.

The said Chapter on India, while discussing India’s technological response to Covid-19, mentions international rules pertaining to intellectual property rights as a key impediment. It states that India needs to address and change these rules in order to facilitate the development of technologies domestically.

Taking a look at the trends in innovation in India, the Chapter highlights increased investment in intellectual property as a key trend fostering the country’s economic growth. It traces the investment in intellectual property products as a share of India’s Gross Domestic Product [GDP] and Gross Fixed Capital Formation [GFCF] from 2012 to 2017. The same has witnessed an increase over the years with 13.6% of the GFCF and 3.9% of the GDP being invested in 2017, as compared to 8.6% and 2.9%, respectively, in 2012. This investment is done majorly at the level of firms, but it has a positive spillover effect into other companies in the same industry. Thereby, leading to an increase in productivity and promoting economic growth.

Further, the Paper draws attention to the fact that trade in intellectual property products has also increased, but most of it comes from software services. If trade in software services is excluded, India has a trade deficit with respect to the trade in intellectual property products. This trade deficit is concentrated in the areas of royalties and license fees for the use of trademarks, franchises and similar rights, and other royalties comprising the license fee for patents.

According to the Chapter, the National Intellectual Property Policy developed by India in 2016 does not introduce any fundamental shift in the policies the country has been following under the TRIPS since 2005. The Chapter mentions that the lack of requirements for the domestic use of intellectual property created from research and development financed via tax concessions is noteworthy as well, considering the subsidies and concessions granted by the Government for research and development has increased over the years.  

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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The concept of ‘Work from home’ has become commonplace and the pandemic has compelled even those industries/offices to work from remote locations that would normally not allow employees to access any work-related content outside of the traditional work space. The prevailing circumstances certainly, in my view, pose a greater risk to the effective protection of trade secrets than ever before.

The secrecy of such trade secrets can be of high commercial value to its owners. Offices and work locations have had, however, to suddenly accommodate access to and handling of trade secrets from homes of employees and consultants. Procedures and technologies to guard against abuse have been slower to devise and install. 

The reason why I think the Work from Home set up poses a particularly hard challenge over breach of trade secrets is that the monitoring of day-to-day activities carried on by employees is extremely difficult in a Work from Home setup as compared to a traditional work environment. Moreover, the crippled economy and the increased number of termination of employees, even from the highest rungs of position has further led to an increase in the number of disgruntled employees who are more susceptible to influence by third parties and might collude with them for personal gains. In the absence of a proper mechanism, it is not possible to monitor all employees actively as in a Work from Home set up. Vulnerability to hacks and data breaches has also increased. 

In light of the virtual work mode scenario, it can be easy to blame accidental breaches or hacks upon third parties and attempt to get away from facing accountability for such unethical and illegal actions. In such scenarios, innocence and mala fide intentions are not easily discernible from each other and identifying the source of the hack is a challenge. 

The solution to combat these problems could be to have a Non-Disclosure Agreement in place and the repercussions for any breaches should be clearly stated in such agreements. A well equipped cyber security and IT department should be involved to manage the information stored over the servers even if in encrypted formats and stringent security protocols should be in place. Further, each person involved in the management of or having access to trade secrets should be made aware of the consequences in case of misappropriation. 

Source: Free copyright licence as may be verified at URL: https://www.flickr.com/photos/superamit/113580444/

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