[Commons-Law] India At The Forefront Of Knowledge Commons Debate

[Venkatesh Hariharan]

India At The Forefront Of Knowledge Commons Debate

http://www.ip-watch.org/weblog/index.php?p=389&res=1680_ff&print=0

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?

Others 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's 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 person
in the world of IT have had so many 'zeroes' behind his net worth?"

Shiva herself 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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