1. Proceedings of the Two-day Workshop on ‘Creation of TKDL for     SAARC Countries’

          A two-day workshop on ‘creation of TKDL for SAARC countries was held on 27^th and 28^th December 2004 at Kamal Mahal Hall of Maurya Sheraton, New Delhi. Eleven delegates from SAARC member countries, viz., Bangladesh, Bhutan, India, Maldives, Nepal and Sri Lanka attended the workshop. The list of delegates along with their affiliation and contact details are given at Annex. 1. The workshop was organized by SAARC Documentation centre in collaboration with National Institute of Science Communication And Information Resources (NISCAIR), Council of Scientific and Industrial Research and Department of Secondary and Higher Education, Ministry of Human Resource Development, India.

The international resource persons, Mr. Mikhail Makarov, Head, International Patent Classification (IPC) Division and Mr. Shakeel Bhatti, Global Intellectual Property Issue Division from World Intellectual Property Organization participated in the workshop.

The key issues that were discussed include creation of draft Legal and Policy Frameworks for TK protection in SAARC Countries and developing a Technical Framework for Creation of TKDL for SAARC Countries that have emerged as the major recommendations of the workshop.

The Workshop on ‘Creation of TKDL for SAARC Countries’ was inaugurated on 27^th December 2004 by Shri Sudeep Kumar Banerjee, Additional Secretary, Department of Secondary and Higher Education, Ministry of Human Resource Development.

In the Welcome Speech, Mrs. Bela Banerjee, Joint Secretary, Ministry of Human Resource Development emphasized that SAARC region is rich in Genetic Resources and Traditional Knowledge and felt an urgent need to create both positive and defensive protection of this valuable knowledge. Traditional Knowledge Digital Library (TKDL) developed by India was cited as a good example of defensive protection which could become a model for other SAARC countries to develop such digital databases. SAARC region, however, has been holding annual meetings and workshops, and such meetings and workshops should be used as common platforms for TK protection in SAARC region.

Shri Sudeep Kumar Banerjee while delivering the Presidential Address mentioned that the SAARC region has the common interest of protection of TK and needs to build upon this. The issues need to be understood and coordinated action should begin in all the SAARC countries with collective wisdom. Documentation of TK needs to be done which will have direct relevance on the betterment of life to the modern world. TK is the last resource with the poor people of the developing world and should be protected through joint efforts.

The Keynote address by Dr. R. A. Mashelkar, Director General, Council of Scientific and Industrial Research, emphasized the defensive protection of TK through the unique approach of TKDL. His address also mentioned that the areas of documenting TK are being expanded to include areas such as the Traditional Foods, Traditional Architecture and Construction Technologies and  Tribal Knowledge. Value addition is being done to the database on medicinal plants and the Components of Biodiversity Digital Library (CBDL) wherein about 22000 plant species are being digitized. He also focused on the current developments at the international level, particularly, on the efforts being made by India on inclusion of TK journals from Developing World to the PCT minimum list which as of present does not contain any journal from the developing world. He was hopeful of a positive outcome of this effort in the near future.

Session Reports:

The first session of the Workshop addressed the issues of Legal Protection and Practical Planning towards developing a comprehensive policy for TKDL in SAARC Countries. Mr. V. K. Gupta, Director, SDC and NISCAIR outlined the Technical, Practical and Legal Framework on Traditional Knowledge for the SAARC Countries. He mentioned that the Practical and Legal Framework on TK needs to be planned for moving forward.. He felt that the existing IP laws are not adequate to cover the TK subject matter due to the facts that: (i) The TK is much beyond the existing issues of IP laws since it  is a knowledge being practised for centuries, (ii) IP is private and the rights are of individual nature but traditional knowledge most often is collective community rights,  (iii) the inventors with respect to the Traditional Knowledge are not identifiable and (iv) the high cost of getting patent rights by the indigenous communities under the existing International Patent System. Other issue addressed by Shri Gupta was evolving a classification system for the TK such as the TKRC created for Ayurveda and Unani in the TKDL project. He emphasized that there is thus a need for evolving a sui generis system for protection of the TK for SAARC countries and also a need to adopt prior informed consent from the knowledge holders in case of its commercial utilization and also fair and equitable sharing of benefits among the knowledge holders in legal protection mechanisms. The presentation made by Shri Gupta is at Annex 2.

Mr Shakeel Bhatti  made a presentation on the concepts and needs for TKDL (Annex 3). He mentioned that TKDL is well recognized effort and has been discussed in the various meetings of the Intergovernmental Committee (IGC) on Intellectual Property, Traditional Knowledge, Genetic Resources and Folklore, the Standing Committee on Information Technology and International Patent Classification Union meetings of World Intellectual Property Organization. He outlined the outcomes of the WIPO SAARC Expert Group Committee Meeting held in November 2003 which included the track on the legal framework and the operational systems. The need of creating TKDL was identified for the protection of the Traditional Knowledge Systems. He said that the approach for the Legal Framework needs to be comprehensive based on the five approaches which are: (i) IP Rights approach, (ii) Repression of acts of unfair competition, (iii) Excess regulation and benefit sharing, (iv) Compensatory liability regimes, and (iv) Customary laws and protocols. The policy tools for TK Protection include the approaches which can be broadly classified into the blocking tools, for example, the right to block down streaming which includes exclusive policy rights and prior informed consent and the non-blocking tools such as compensatory liability, repression of unfair competition, and customary laws. He mentioned that the comprehensive policy should set the policy objectives and provide general guiding principles and substantive principles.

Mr Mikhail Makarov, Head of the International Patent Classification Division of WIPO gave an outline of IPC and TK Classification (Annex. 4). He emphasized the use of IPC with respect to searching of the patent information and also the use of IPC in selective dissemination of information, investigating the state of the art and preparation of Industrial Property Statistics. The IPC could be used for novelty search, patentability search, infringement search and information search. He said that the classification is required for giving complete results on the text search, which is independent of language and applicable through all fields of technology.  The classification is also independent to changes in the terminology. The retrieval strategy consists of three steps, which are: (i) Bibliographic search, (ii) Abstract browsing, and (iii) Full text study. He also gave the history of International Patent Classification. He mentioned that the TKRC developed by India for Ayurveda was discussed in the IPC Union meeting held in 2000. A Task Force consisting of USPTO, EPO, JPO, China & India as members was constituted with International Bureau of WIPO as coordinator. The Task Force recommended the inclusion of approximately 200 subgroups in the IPC under A61K 36/00 for classifying the TK related subject matter. The Task Force also has approved the linking of TKRC with IPC in the recently held meeting of October 2004.

Dr. B. Subramaniam, Coordinator, TKDL Project elaborated on the concepts and details on Traditional Knowledge Resource Classification (TKRC) on Ayurveda and Unani (Annex 5). The needs for creation of innovative TKRC are: (i) it is language independent, (ii) it is of use for the patent examiners to search the database, (iii) its utility for inputting and retrieval of data, and (iv) it is able to establish linkage of terms used in Traditional Knowledge with those of modern terminology. He mentioned that the approach for the creation of TKRC for Ayurveda and Unani is similar to that of IPC.

Dr. H. B. Singh, Coordinator, Components of Biodiversity Digital Library (CBDL) Project described the classification of the plants existing in India in a classification system, which is similar to that of the International Patent Classification (Annex 6). The classification of the entire biota has been carried out as per the Whittaker’s five Kingdom Classification. The hierarchical categories adopted for the entire 22,000 species existing under the kingdom of Plantae has been classified as per the IPC categories.

Mr. Shakeel Bhatti comprehensively covered international dimensions of TK protection (Annex. 7). He outlined the policy basis for establishing protection wherein he covered the discussions held at various international fora such as the IGC discussions, SAARC Expert Workshop 2003 and existing TK laws already enforced including African Group, ASEAN, etc. Some of the  policy objectives for protection of TK include: (i) recognise value, (ii) promote respect, (iii) meet actual community needs and empower communities, (iv) support customary practices and encourage community creativity and innovation, (v) contribute to safeguarding of traditional cultures and to cultural diversity, (vi) promote intellectual and cultural exchange, community development and legitimate trade, (vii) preclude invalid IP rights, and (viii) enhance transparency and certainty. Some guiding principles like legal certainty, flexibility and comprehensiveness, equity and benefit sharing, consistency with the existing IP system, complementarity of defensive and positive protection, etc. were discussed. Under the substantive principles, the main concerns of the TK holders like prevention of misappropriation and private property rights over TK and ensuring of prior informed consent and equitable benefit sharing were highlighted. It was proposed that legal and administrative mechanisms should be established to provide effective protection in national systems for the traditional knowledge of foreign right holders and measures should be taken to facilitate the acquisition, management and the enforcement of such protection for the benefit of traditional knowledge holders in foreign countries.

Mr. V. K. Gupta in his presentation on ‘Role of TKDL in Protection, Preservation and Wealth Creation for the SAARC Countries’ (Annex. 8) discussed the various Traditional Medicine Systems that are being used.  He gave an overview of the TKDL developed in India alongwith the methodology that was adopted for the creation of the database. Its software driven knowledge based conversion of the information entered in the database is able to convert data into multiple languages such as English, French, German, Spanish and Japanese. He also briefed on the TKDL which is being created for the Unani System of medicine. He informed that TKDL has become a model for different countries and organizations such as South Africa and African Regional Industrial Property Organization to use this methodology for creating the TKDL for their own countries. The different opportunities the TKDL database will provide new drug discovery and development. Some example cited for the   efficacious drugs developed through the use of traditional medicines include Omeprazole, which has been found to be more effective compared to the other commercially available drugs.  Similarly Asmol, developed for Asthma patients, is inexpensive and more effective and has been sought after by Asthma patients.

Dr. Ritu Sethi, Ayurveda Expert and Dr. Nighat Anjum, Unani Expert, TKDL Project, gave presentations (Annex 9 and 10, respectively) on Traditional Knowledge Resource Classification created for Ayurveda and Unani, respectively. They comprehensively covered the different Sections, Classes, Subclasses, Main groups and Subgroups that have been created for classification of traditional knowledge subject matter on Ayurveda and Unani. This classification system is being used for transcription and retrieval of the traditional knowledge information pertaining to these indigenous systems of medicines and can be of immense use to patent examiners for search and examination purposes.

Dr. S. S. Singh, Patent Examiner, TKDL Project, discussed the concordance of TKRC with the IPC (Annex. 11). A concordance table of the entire subgroups of TKRC with the corresponding subgroups of the IPC has been developed. The concordance table will enable effective search and examination of the database by patent examiners. The concordance between 2147 subgroups of medicinal plants of TKRC with 200 accepted Subgroups of IPC under A61K 36/00 was also presented by Dr. Singh. Mrs. Alpana Jain, IT Expert, TKDL Project, gave a presentation on the technical framework for the creation of TKDL, (Annex. 12) particularly, on the IT infrastructure required for the creation of the TKDL database. She outlined the hardware and software requirements that are essential and their application for the creation of the TKDL database.

Dr. Sivakamasundari, Head, PME took the example of the TKDL Ayurveda as a case study for arriving at a realistic budget estimate for creation of TKDL in other areas of traditional knowledge (Annex. 13). This is likely to provide a basis for preparing the cost estimate for creation of TKDL by the SAARC Countries.

With respect to the consultation and capacity building needs for creation of TKDL for SAARC Countries, Mr. Shakeel Bhatti discussed the Consultative Mechanism for legislative process particularly with the stakeholders, the technical assistance for operation systems such as the infrastructure development, management of IP during TK documentation where one can use the toolkit on traditional knowledge and training for management of TK, particularly, with reference to IP. With reference to consultation process he identified four levels which include: (i) local communities who are the knowledge holders (ii) national level, particularly on legislation (iii) regional level such as at SAARC level, and  (iv) international linkages which involve the international policy processes. The training can be the distance learning courses drafted by WIPO Worldwide Academy and other courses which are conducted by WIPO.

Dr. T. K. Mukherjee, Editor, Indian Journal of Traditional Knowledge (IJTK) covered the biodiversity existing in the SAARC region (Annex. 14). The biodiversity and the traditional knowledge associated with them have immense potential for bioprospecting. He also mentioned that the SAARC region has many similarities including the social and cultural values and a rich traditional knowledge which needs to be preserved and protected.

The delegates from the SAARC region also made their presentations with respect to the traditional knowledge in their countries and the legal protection if available in their countries. Mrs. Indrani Swarna Hassanalli from Sri Lanka gave an overview of the history and evolution of health system in Sri Lanka. She also mentioned about the indigenous system of treatment wherein she mentioned that there are approximately 18,000 Ayurvedic practioners in Sri Lanka. Dr. R. N. Jayasekara of Sri Lanka gave a presentation on traditional foods of Sri Lanka. She discussed the rich diversity of traditional preparations which are the favourite diets of the people of Sri Lanka.

Mr. Abu M. Mahir of Maldives broadly covered the traditional medicinal systems which are practised in Maldives. He also briefly covered the literature that is available on Ayurveda in his country. He emphasized on modernising the traditional medicinal systems and felt that TKDL could initiate this process also.

Mr. P. Dorji from Bhutan discussed on the rich traditional knowledge existing in the country. He felt that it is important to preserve and protect the existing traditional knowledge for the benefit of the local communities. The different areas of traditional knowledge existing in Bhutan such as the traditional medicines, traditional architecture, traditional foods, traditional farming practices, folk songs and music and the biodiversity were also discussed. He also apprised about the Biodiversity Act of Bhutan, which was brought out in 2002. Dr. Karma Gaylek, also from Bhutan, outlined the different traditional systems of medicines practised in Bhutan. He elaborated on one of the indigenous systems of medicines practised in Bhutan, which is known as gso.ba.rig.pa system of medicine. He also mentioned that Bhutan has diversity of medicinal plants which are used in trade and said that approximately 8 metric tonnes of traditional medicines are produced per annum. He felt that the protection of TK by documentation of traditional knowledge is essential.

Dr. S. K. Sharma from Nepal discussed on the biodiversity and traditional knowledge existing in Nepal. He mentioned that there are no specific legal protection mechanisms in force in Nepal as of present. He expected collaboration and support for documenting  the traditional knowledge systems of Nepal.

Mr. Mohd. Abu Jafar from Bangladesh focused on the folklore existing in Bangladesh such as folk medicine, folk dance, etc. He also mentioned that as of now there is no legal protection mechanism of traditional knowledge in Bangladesh and laws on Genetic Resources are yet to be framed. However, he mentioned that the IP laws are in the final stages. He felt that the Workshop will act as a spring board where from the creation of the databases on traditional knowledge, traditional cultural expressions and Genetic Resources may get initiated. 

Dr. K. Venkataraman, National Biodiversity Authority, India gave an overview of the Biodiversity Act 2002 and presented the rich biodiversity existing in India. He felt that  inventorization, capacity building, networking, awareness building and implementation and monitoring will be essential for preservation and protection of biodiversity. He also felt that a new Act on Traditional Knowledge is needed.

The reforms, which are being carried out in the International Patent Classification, were elaborated by Mr. Mikhail Makrov (Annex. 15). In his address he said that IPC is applied in more than one hundred countries and also by five international organizations. However, the model patent classification systems which are in force include the IPC (containing 70,000 subgroups, ECLA (1,30,000 subgroups). USPC (1,40,000 subgroups) and Japan Patent Classification (having 1,80,000 subgroups). The IPC Committee initiated the reforms of the classification in March 1999. The strategic goals of the reforms included the integration of IPC with the systems of Electronic Information, creation of universal search tools for all patent offices, establishment of global systems of generation, processing, and distribution of classification data. The IPC after reforms includes the core level and the advance level. The core level has 20,000 subgroups and has a search in small national patent files’ dissemination, patent information and patent statistics, and revised once in three years whereas the advance level has 70,000 subgroups with search of international patent files (PCT minimum documentation) and continuous revision is done following an accelerated procedure by a special sub committee.  The changes in the classification practices resulting in the reform include (i) new way of defining information to be classified (ii) new way of recording of classification symbol on the front page of patent document. (iii) new standard for electronic recording of classification symbols and (iv) delivery of reclassification data to the master classification database.

Recommendations

During the closing ceremony Mr. Shakeel Bhatti and Mr. Mikhail Makarov presented the recommendations finalized by two working groups on legal framework and technical framework for creation of TKDL for SAARC countries. The constitution of the two Working Groups is given at Annex. 16 and 17, respectively. The recommendations are given at Annex 18 and 19, respectively. The salient features of the recommendations are enumerated below:

 

Salient features of the Draft Legal Instrument for SAARC Countries on protection of traditional knowledge.

1.                  The preamble of the legal instrument on protection of TK brings out the needs of protection of Traditional Knowledge in the SAARC region. It describes the objectives of this legal instrument which are to repress the misappropriation of traditional knowledge, to regulate access to traditional knowledge, and to ensure the fair and equitable sharing of benefits arising from the use of traditional knowledge.

2.                  The SAARC member states have agreed for the different aspects of protection of traditional knowledge, which have been covered under 13 articles.

3.                  The first article identifies the scope of the protected subject matter, wherein not only that traditional systems of medicines have been included but also other areas of TK protection such as the Agricultural, Environmental, Healthcare, Knowledge Associated with Genetic Resources and Components of Biodiversity, Traditional Architecture and Construction Technologies.

4.                  The second article deals with the access to the traditional knowledge which includes the prior informed consent from the knowledge holders.

5.                  The third article covers the criteria for eligibility of protection which includes the protection of knowledge which is generated, preserved and transmitted, and the knowledge with the tribal community or the people and the codified traditional knowledge systems.

6.                  The nature of rights has been dealt in article 4 wherein it has been suggested that member states are free to implement their obligations under this instrument through a special law on TK and other laws which are impinging on the protection of TK.

7.                  The conditions of protection have been listed out in the article five.

8.                  The article six briefly covers the scope, rights and exceptions. Protection against misappropriation has been dealt as a part of this article. The different methods of misappropriation of the TK have been identified and those which are prohibited have been enlisted.

9.                  Under sub-article for right of compensation, the users of traditional knowledge for commercial benefits have been identified to provide equitable compensation. However, where TK is used for non commercial purposes, a suitable benefit sharing for such users has been suggested.

10.              Within the scope of exceptions, it has been suggested that application and implementation of TK should not affect the continued availability of TK for customary purposes, practices, exchange, use and transmission by TK holders or for use for non commercial or help purposes.

11.              In article seven the right holders and the beneficiaries have been identified. The protection, in particular, must benefit the traditional and tribal communities. The benefits must take into account the customary protocols, laws and practices of these communities and peoples.

12.              The article eight deals with the acquisition of rights i.e. the protection of TK against misappropriation and other acts of unfair competitions. 

13.              The article nine covers the expiration and the loss of rights.

14.              The exercise and enforcement of rights are dealt in the Article ten wherein, the responsibilities have been identified where it has been suggested to appoint an appropriate competent authority appointed by the member states with responsibilities that have been identified.

15.              The registration mechanism and other procedures are covered in article eleven where further responsibilities of the appropriate competent authority appointed by the member states have been enlisted.

16.              The defensive protection of TK has been covered in Article twelve wherein the member states have been given the responsibility of establishing registries, digital libraries, databases and other records on TK as defensive protection measures.

17.              The defensive protection measures have been further elaborated in Article thirteen wherein it has been suggested 10 that the equitable sharing of benefits may be guided with respect to the customary practices, norms, laws and understanding of the holders.

 

Salient features of the Draft Technical Framework for Setting up of TKDL for SAARC Countries

1.                  The preamble deals with the need for creation of TKDL for SAARC Countries which is severely felt due to the large number of cases on misappropriation of traditional knowledge, particularly, in the SAARC countries.

2.                  The areas of traditional knowledge have been identified which include traditional medicines, biodiversity and genetic resources; traditional foods; oral, communities, tribal knowledge; traditional architecture and construction technologies; traditional agricultural and farmers’ knowledge; and traditional cultural expressions.

3.                  The objectives of creation of TKDL identified are: (i) prevention of misappropriation of TK, (ii) using TKDL database as valuable tools for carrying out advanced research, and (iii) use of traditional knowledge for commercial purpose under prior informed consent and access and benefit sharing agreements.

4.                  The different activities that have been identified for the creation of TKDL includes : (i) creation of TKRC, which may be for both codified and non codified knowledge and also for Components of Biodiversity Digital Library for the SAARC countries (ii) identifications of deliverables, time frame and milestones for the TKDL project, (iii) use of TKDL toolkit and adopting of Technical specifications of Standards for the Database creation and documentation of the traditional knowledge information wherein the different methods for documenting TK have been enlisted.

5.                  The resource and infrastructure for the creation of TK has also been identified. The details of IT infrastructure required have been classified under five types and the approximate cost for each Type of IT infrastructure has been given. It has been recommended that the work may be initiated with type 1 IT infrastructure, which can further grow with the increase in data volume and workload.

6.                  The skilled manpower requirements for carrying out the collection of data and preparing the database have also been classified under three types. The monthly wages for these experts have been also suggested. It has also been recommended that the manpower requirement that may be deputed for the work initially may be of the type 1 category that can be stepped up depending on the need.

7.                  It has been recommended that the space requirement may be created by the National Focal Point institute along with identification of the coordinator who will oversee the creation of the Digital Library.

8.                  The budget provisions for the type 1 specifications may be provided by the SDC, whereas expenditure towards the subject expert team, creation of space and other miscellaneous expenditure may be met by the SAARC member states.

9.                  The SAARC member states, which create the Database, will be the owners of the database. The database may be made available to patent examiners against non-disclosure agreement for search and examination purposes only. However, a demo version of that database may be made available freely for showcasing of the databases similar to the demo CD which has been created for TKDL Ayurveda.

10.              A format for sending the proposal has also been provided for submitting the project proposal to SDC.

11.              It has been suggested that the SAARC member states may submit the proposal of creation the TKDL to SDC by April 2005 which will be placed before the Governing Board Members for examination, which will further be sent to SAARC Secretariat for approval by the SAARC programming committee and the standing committee. It will further be placed before the Council of Ministers. After the formal approval of SAARC secretariat the project may be initiated.

The meeting ended with Vote of Thanks.

 

 

 

 

4. Concepts and Need for TKDL, by Dr. Shakeel Bhatti

 

5. IPC, its Philosophy and Use, by Mr. Mikhail Makarov

 

6. Classification and Details on Traditional Knowledge Resouece Classification:     Ayurveda, Unani,       By Dr. B. Subramaniam

7. Biodiversity Classification: Components of Biodiversity Digital Library by Dr. H.B.     Singh

8. International Dimensions of TK Protection by Dr. Shakeel Bhatti