Law and Justice

Posts Tagged ‘Rights’

9 12, the Third Military Medical University, Department of Laboratory research team led by Professor Zou Quanming, after more than ten years of hard work, successful completion of a preventable national class gastric drug?? “Oral recombinant Helicobacter pylori vaccine “(referred to as stomach vaccine) clinical trials, is expected to formally put into production recently.

  This is the world’s first clinical trial completed gastric Helicobacter pylori vaccine is truly independently developed by the Chinese people, with completely independent intellectual property rights of original vaccine, vaccine research indicates that our original technology a major breakthrough in research for new vaccines is an important reference.

It is reported that more than 5,000 according to a randomized, double-blind, placebo-controlled design to participate in the international standard procedures for vaccine clinical trials, clinical observation showed that: the vaccine prevention of Helicobacter pylori infection rate of greater than 72.1% protection of gastritis, gastric ulcer and duodenal ulcer and other upper gastrointestinal diseases, a good preventive effect, and were not observed any clinically significant adverse events, shows that the vaccine against the human body has a good safety and efficacy. Currently, the vaccine has been two national invention patents.

It is reported that Helicobacter pylori (Helicobacterpylori, referred to as Hp) by the Australian scholar Marshall and Warren discovered in 1983, after 20 years of broad international study confirmed that such “settled” in the human stomach bacteria that cause chronic gastritis , gastric ulcer and duodenal ulcer disease and other upper gastrointestinal tract the culprit. In 1994 the World Health Organization confirmed that closely associated with gastric cancer, and classified them as Class carcinogen, two Australian scientists won the 2005 Nobel Prize in medicine, therefore, and Physiology Prize. Currently around 50% of the population involved in Hp infection and related diseases thus induced, infected more than 600 million Chinese each year about 20 million people died of gastric cancer. How to prevent and eradicate Hp infection into the problems besetting the international medical community. Hp vaccine research and development success, for the prevention and control of Hp infection is of great significance, is expected to fundamentally solve the problem of difficulties in preventing stomach, greatly reduce the Hp infection and associated morbidity.

Professor Zou Quanming launched in 1995, Hp vaccine research projects, led the research team of more than 50 people, the same vaccine in the absence of reference of the case, bold innovation, to genetic engineering, protein engineering and other modern molecular biology techniques and the original research foundation closely linked to the development of breakthrough technologies in a number of key challenges in the international mucosal vaccine adjuvant within the first molecular theory, and to take a unique molecular construction model genetically engineered vaccine, immunity in the mucosal surface, avoids Helicobacter pylori infection in mucosal surface due to difficulties in the prevention of treatment; successfully established long-term stability of the animal infection model for evaluation of stomach vaccine is a necessary condition; formulations using a special process to overcome the gastric acid and pepsin, the destructive effects of the vaccine improve the effectiveness and stability of the vaccine.

1997, the three doctors to technology shares in the form of large, established industry, academia, and research models of biological high-tech Co., Ltd. to build an advanced biopharmaceutical GMP Engineering Research Center, the project funding, research and development equipment guaranteed. The project has been listed as national “Ninth Five-Year” key scientific and technological projects, national “863″ project, state “15″, “Eleventh Five” major science and technology projects, the National Natural Science Foundation and other projects with a cumulative investment of more than 5000 million R & D .

Another report, the vaccine is now settled in Chongqing. Beibei District government has a “trick shot” can Transfer the 500 acres of industrial park, dedicated to “stomach vaccine,” the industrial base.

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Because our family courts are not setup to protect the rights of litigants but a so-called ‘higher good’, it’s ripe for distributing injustice and persecution – mostly to fathers and their children. This article explains why.

Thomas Jefferson stated that trial by such a jury is the only anchor yet known to man to hold the state to the principles of the constitution so as not to leave the protection of the individual solely up to the government or judicial elites.

It’s through the jury that ‘the people’ participate in the judicial process and rein in unconstitutional or unreasonable laws and judgments of the state. Without the protection of a jury trial, tyranny will surely reign.

*Our most fundamental rights are in jeopardy in family court for doing no wrong:

At stake are your right to parent your child, to control and choose your income and profession, your right to maintain your professional and driver’s licenses, your right to have or maintain your passport and travel as you see fit. These rights are guaranteed by the constitution.

*What about the ‘best interest of the child’ – isn’t that ‘a greater good’?

Greater goods are part of dictatorships and tyrannies. The greatest goods of republics are peoples’ constitutional rights which includes the protection of ‘due process’. Supreme Court case laws states that the ‘best interest of the child’ resides in a ‘fit’ parent – not the state.

*How are fundamental rights at stake?

Because if the family court judge assigns you to be the noncustodial parent, you lose your parenting rights to your children (i.e. to support them directly, live with them, and direct their lives) and then you’re forced by the court to pay the mother whatever the judge says – amounts that will impoverish most fathers. If you don’t pay regularly and pay it all, you’ll go to jail without a trial.

*What do you have to do wrong to be assigned the noncustodial status?

Nothing! Fit parents – overwhelmingly fathers – have their constitutional rights denied by judges assigning them as noncustodial parents.

The judge – as representative of the state – invokes his ‘illegal’ right to take away constitutional rights of fit fathers for the ‘best interests’ of the children. Best interest determinations are only to be invoked when there are no fit parents.

*The family court setup prevents protection of father’s constitutional rights:

The family court doesn’t allow a trial with a jury. It only permits ‘bench’ trial which means that the judge is both judge and jury for you. So you’re denied the protection of the people from the legal elites and special interest groups that feed off the injustice that the family courts produce.

*Why doesn’t the family court protect a father’s constitutional rights?

Because when you eliminate the natural protections – like a jury – you leave judicial elites in power. More power means a more corruptible system. That’s human nature.

The family court and its affiliates have seized on a ‘greater good’ excuse such as ‘best interest of the children’ and ‘safety of women’ to forego constitutional law and protections for fathers.

*Special interest groups influence on the family court setup and actions:

A host of legal and court-assisting persons and organizations have a strong financial interest in keeping the family court set-up as it is. They together can be called the Divorce and Domestic Violence Industry (the DDVI).

The DDVI is made up of the judges, lawyers, GALs, mothers/women, probation/family service officers, psychiatrists, sociologists, visitation centers, battered women’s shelters, the abuse industry, women’s advocates, the state’s department of revenue (DOR), the federal government’s child support enforcement division…and more! Let’s consider where some of these entities find their financial interest in the family court setup.

The DDVI have interest in:

* Setting larger child support orders.

Both the court and DOR/CSE(child support enforcement (agency)) receive federal incentive payments. Court-DOR (Department of Revenue) agreements send some DOR money to the Court systems. County jails make money by more inmates – who are court-created deadbeat dads.

* Making abuse allegations more easily allowed.

Visitation centers and lawyers benefit by this as well as do Battered Women shelters and Batterers Groups. Incidentally, battering is relatively rare; accusations are very common.

* Aggravating parental exchanges and unequal allotment of rights – as the court imposes.

This makes lots of money and job security for lawyers, family services officers, psychologists, GALS, parenting class coordinators, women’s groups, and affiliated VAWA organizations who receive some $5 Billion over 5 years.

The DDVI, taken together, is a powerful lobby and participant in the rule-making process. They’re not about to favor any change – however fair – that will undermine their positions, benefits, or money and power they’ve accumulated.

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Almost everyone I talk to about ebooks mentions the dangers of stolen work and un-credited content. The cut-and-paste feature in Windows makes pirating a genuine concern.

The good news is that securities have been built into ebook creation programs. Now, the author can limit whether the file can be copied or even printed. You can stop anyone from making changes to the document. Some programs even have a time dated feature where the file will only be available for a set span, such as for a free 30-day trial. You can also create user-unique passwords and track document openings.

One thing about protection, it can only go so far. If someone is determined to steal your work, he or she will find a way. But isn’t that true of print books and manuscripts as well? Be careful that you don’t get so worried about protecting your work that you don’t move ahead.

Here is my take on the protection issue (from a man who makes 8 figures a year doing this). Yes, put protective devices on the file, but then plan for some cheating and make the most of it. By that I mean, plant links within the document for readers to buy the print book, insert links to your web site, links to other products, affiliate links to related products, links to anything and everything pertaining to your work.

Create the document in such a way that you win even if it gets passed around because you’ve got a living advertisement within the document itself. The more people that read your work, the more coverage you get. Don’t forget, anyone who takes the time to read your material is a hot prospect. Yes, you may miss out on a few dollars at that point, but if he’s truly interested, you’ll win in the long run because he’ll want the print copy or other training materials you offer.

Here’s another unusual idea that sounds like jumping off a cliff, but I’m going to give it to you anyway. Give the ebook away. I did this with my Christy Award winner Reaping the Whirlwind. I created an ebook from the book manuscript (It was self-published so I could do that) and loaded it to my web server. I created a web page with a link to download the ebook.

Then I went to a topic-related newsletter that offers free things every Friday and offered it to their giveaway program. I had so many downloads that my site crashed within a few minutes. I gave away more than 1500 ebooks within the next 2 days. But at the same time my Amazon ranking shot up higher than ever before. The reason? People don’t like reading on the computer screen for hours. And once they began reading the book, they found they liked it, so the risk of paying for the print book was gone.

Yes, take precautions to protect your work but be careful that you don’t protect yourself into obscurity.

In victories against piracy, Nintendo Co Ltd (Nintendo) successfully protected its copyright. These cases illustrate that infringers can be tracked down and with serious consequences

The facts

James Burt, 24, of Sinnamon Park, Brisbane copied New Super Mario Bros — one of Nintendo’s new Wii games — and uploaded it to the internet a week before its official Australian release on 12 November 2009.

Under the Copyright Act 1968 (Cwlth), Burt should have sought Nintendo’s permission, as the copyright owner, before copying and distributing its games.

As a result of Mr Burt’s conduct, thousands of people around the world downloaded illegal copies of the game causing substantial loss to Nintendo.

What action did Nintendo take?

Once notified of the breach, Nintendo engaged a private investigator to apply sophisticated technology to determine the identity of the infringer, Burt.

On 23 November 2009, Nintendo obtained a Federal Court order to search Burt’s residence. During the search, Nintendo seized property to use as evidence to substantiate its claims against Burt. The Court ordered Burt to allow access, including passwords, to his social networking sites, email accounts and websites.

What was the outcome?

Nintendo then sued Burt in the Federal Court of Australia. Under an out-of-court settlement in January 2010, Burt is required to pay Nintendo $1.5 million in damages to compensate Nintendo for the loss of sales revenue and a further $100,000 to pay Nintendo’s legal costs.

Copyright infringement is taken seriously by the courts. This case illustrates the broad range of orders and remedies that can be obtained from the courts to successfully protect your copyright.

The lesson

This case highlights the severe penalties that are imposed on individuals or companies that infringe copyright laws. Be cautious when dealing with copyright material. Even if your breach is unintentional, action can be brought against you. Companies such as Nintendo are becoming more pro-active and innovative in pursuing offenders. In a statement, Nintendo commented that it guards its intellectual property rights to protect the interests of its consumers, its own interests and the interests of game development companies.

Another win for Nintendo

Since this decision, Nintendo has won another Australian Federal Court case. This case was against online console and accessory seller IT Solutions Pty Ltd trading as GadgetGear — involving the gadgets known as R4 cards, which pirate games for its handheld DS system.

GadgetGear and its directors have acknowledged that:

the game copying devices infringe both Nintendo’s copyright and Nintendo’s trademarks; and
they are illegal circumvention devices.

As a result of this case, GadgetGear and the directors have agreed to permanently refrain from importing, offering for sale and/or selling game copier devices.

GadgetGear and directors Patrick and James Li were ordered to pay Nintendo $620,000 in damages and hand over all their stock of copiers to Nintendo for destruction.

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If you have an autistic child, your rights are the prime things that you should learn and study. The constitution protects every American citizen, and special laws have been passed in order to protect autistic people and people suffering from other disabilities. If you know your rights and the laws that can protect your autistic dear ones, you will find yourself in a world with better opportunities, irrespective of disability, gender, ethnicity and race. Knowing ones laws helps create a world in which there is more tolerance.

The I.D.E.A is the first law that you should familiarize yourself with. This is the Individuals with Disabilities Education Act. This act covers the age group 3-21 and provides special educational programs that autistic children require. This act gives the parents an active role to play when it comes to education that the school gives. First, you child will need to qualify under this act and a private professional makes this assessment. If your child qualifies, he or she gains the right to receive free public education according to her or his skill level. If the public school you choose does not have any provisions for such a program, it is mandatory that they create a program free of any charge.

Another act you need to know is the American Disabilities Act. This act prohibits discrimination based on disability in the workforce and with local and state government, the US congress, public accommodations, telecommunications and public transport. For instance, if a person suffers from autism, but has all the skills required for a particular job, he or she cannot be denied the job due to their condition.

There are many other laws that provide for autistic people to be constitutionally equal to everyone else. One of these laws states that autistic people have voting rights and all accommodations should be made to facilitate this. Another law states that no kind of housing can be denied to a person because he or she suffers from autism. There are many other laws providing for equality in many other aspects of life, and if someone you love is in a health care institution, you should study these laws well. You will help uphold justice if you know your laws and how it applies to your loved ones and to you. If you have any queries, local law officials will be willing and ready to answer them for you or provide you with sufficient material to clear your doubts. Ignorance is not a valid excuse. Therefore educate yourself regarding your laws so that you can protect yourself and autistic people around you.

Most people are attentive of the numerous benefits of owning a trademark registration. Trademark registration in India becoming familiar with complete customer satisfaction. Trademark registration is the protection agreed by the government to the business entities as to reduce the possibility of getting the advantage of the business by others by the way of misuse and to raise the opportunities keeping the mark exclusive under the eye of law.
Generally, brand registration refers to the trade mark used to discriminate the goods or services among the consumers. The business group sells their services or goods under the precise name or brand that is called trade mark. Therefore, the brand is registered in order to evade the repetition or use the same mark by others. In vision of this, the brand registration referred to as trademark registration. Trademark brand was initially developed as a name, term, design, and symbol. Powerful brand can bring success in bloodthirsty and financial markets and thus become the markets worthless assets.

Trademark brand equity dealings the value of brand to the trademark owner. The brand name is used interchangeably with brand to designate written or spoken linguistic rudiments of the brand. Brand name is a form of trademark which identifies the brand owner as the money-making source of products or services. The brand owner may ask for to protect the proprietary rights in relation to a brand name during trademark registration. Trademark brand is a appliance to create monopoly so that the brand owner can obtain some of the reimbursement to those related to decline price competition. There is legal magnitude as it is essential that the brand names and trademarks are protected by all means. An existing brand name can be used as a vehicle for new and modified products. Individual brand names allow greater suppleness by permitting different products to be sold without puzzling the consumer.

The trademark is registered for the business name, brand name and logo as to discriminate, popularize, create the goodwill and put aside the mark from competitors and fraudulent. The trademark office is an organization to provide protection to the inventors and dealing for their inventions and trademark registration in India provide protection and intellectual property recognition.

In addition, if some business entity desires to extend its dealing in more than one or several countries, it can ensue with International Trade mark registration. The titled name International Brand Registration is the usual form of the International Trade mark registration. It is meant, when the registration is done through any International pact, that gives the protection in all the countries allied with the treaty.

The trademark office is an agency, which provides protection to the inventors and business for their inventions and trademark registration for the product and intellectual property identification. The office is provided with funds by the fees, which are charged for processing the patents and trademark. The applications to trademark registration are examined by the trademark office.

You know you have seen many Hollywood glorifications of spies when you start thinking that all spies, both reel and real, have only noble intentions in committing industrial espionage. Add in impressive mini spy cameras and other gadgets, and everybody looks like James Bond. This is far from the truth.

As a businessman, you will realize that industrial espionage does not only affect your business, not by a long shot. Depending on the extent of spying performed, the methods employed, and the uses to which the stolen information is applied, industrial espionage causes loss of revenue and taxes, loss of direct and indirect jobs, negative impact on the trade balance, and an undermined confidence in personal and corporate security. In short, you will lose money and people.

Spread of Industrial Espionage

Espionage has been around for a long time. Almost all societies have a history of deception and subterfuge, the enduring practice of which attest to the invaluable role espionage has played in building and destroying organizations.

With the advent of modern technology, the methods employed have also improved. The invention of the mini spy cameras has pushed industrial espionage to new heights (or lows, depending on how you look at it), such that it is virtually impossible to prevent intellectual property theft. Indeed, the detection of Internet spies is easier compared to spies who use mini spy cameras to record confidential information.

Methods Employed

To protect yourself against the debilitating effects of industrial espionage, you need to know the methods employed. This is to enable you to adopt countermeasures to lessen its effects.

Eavesdropping is the interception and interpretation of text messages and audio conversations. This is usually done through telephone bugs, e-mail, and instant messaging interception, among others. Of course, there is always the old-fashioned way of literally putting your ears to the walls. However, with highly advanced mini spy cameras with audio capabilities, this old method is somewhat redundant.

Surveillance uses electronic and technological means, just like eavesdropping. In business, you will encounter the use of cleverly-hidden mini spy cameras that record your documents, processes, and people. The first two are of special concern since these are used to gain economic advantage over you.

Suspicious Behaviors

When your employees access computer files and report to the office after normal or authorized working hours, especially in restricted areas, you might have spies in your organization. If it is possible, install hidden mini spy cameras in strategic areas not only to minimize employee theft of properties but more importantly, intellectual property theft. When your employees also report suspicious and unverifiable laptop theft, watch for signs of spying.

As to business associates, be very wary of them when they change personnel at the last minute for sub-contracting projects. Also, be cautious about inviting them to manufacturing and administrative areas unless absolutely necessary; this might be a ploy to acquire a lay-out of the premises and record trade manufacturing secrets.

For visitors, watch out for guests who break away from the tour group. Again, this might be a plan to acquire information.

Armed with information about how you can prevent, or at least minimize, industrial espionage can help you in organizational development. Use the methods and gadgets of industrial spies to your benefit, too.

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Developed from experience gained over the centuries and adapted to the local culture and environment, Traditional Knowledge/Traditional medicinal practices were transmitted orally from generation to generation. It tends to be collectively owned and takes the form of stories, songs, folklore, proverbs etc. attached to cultural values, beliefs, rituals, community laws and local language.

Research in Traditional Medicines shall be encouraged for the better understanding of the mechanism of action of drugs being used, chemical reactions happening during its processing by the body, active principles responsible for the particular action of the drug and the identification of the molecules responsible for toxicity reduction etc. The potential portfolios of research include standardization of various drugs, modifications in the ‘form’ and ‘route’ of drug administration, enhancement of shelf-life of the drug, quality standards of drug production, and innovations in processing, packaging, storage, transport, delivery etc. There is no bar on the researchers to take out a patent on the substantially improved version of Traditional Knowledge or on development of new drugs based on Traditional Medicine principles.

However misappropriation of Traditional Knowledge by private business outfits has become quite rampant nowadays, owing to the vulnerability of it being “passed off” as inventions. Though “Intellectual Property” does not include “knowledge” in the strict sense, plenty of patents have already been taken on Traditional Knowledge (Especially Traditional Medicines). Of course, there are a few sagas of successful revocation of some of those patents, but at the cost of exchequer. 

The patent Examiners are not left with any choice other than granting a patent on an “invention” reaching his table “in the form of a document”, if it “fits to his logic” that it is an industrial innovation and not in the public domain. Many Corporate establishments pass off “Traditional Knowledge” as if it is an invention made by them and many a times it is easy for them to get through the formalities since such knowledge is not sufficiently codified and made available to the Examiner in a searchable database. In the recent past, CSIR India has been engaged with creating a traditional knowledge digital library (TKDL), a database that will serve as “prior art” against any move to register patents based on Traditional Knowledge. ‘Prior art’ is meant to encompass everything that has been published, presented or otherwise disclosed to the public on the date of patent (the prior art includes documents in foreign languages disclosed in any format in any country of the world).

India’s Traditional Knowledge Digital Library (TKDL) contains approximately 2.08 lakh formulations based on Ayurveda, Unani, Siddha and Yoga. The formulations have been transcribed in five international languages viz. English, French, German, Spanish and Japanese with the objective of preventing misappropriation of Traditional Medical Knowledge at the International Patent Offices. India has already shared the TKDL with European Patent Office (EPO) and USPTO on an agreement that EPO and USPTO shall utilize the database for search and examination only and shall not make any third party disclosure except for the purpose of giving a copy of the printout to the inventor/applicant as citation. The Access Agreement signed with these patent offices unequivocally mentions that TKDL is a “prior art”. I wonder how ‘confidentiality’ can be maintained if TKDL is treated as a ‘prior art’.

While the codification of Traditional Knowledge in to Digital Libraries and sharing it with patent offices is a viable solution to direct misappropriation, it is feared that such digital libraries may serve as a platter for capitalists looking for private appropriation of improvements on such traditional knowledge that is not accessible otherwise. Of Course, TKDL is the right strategy to prevent the direct misappropriation of Traditional Knowledge already in public domain and known to a large cross-section of people (wound healing property of turmeric for example). However, it is learnt that the concept of TKDL is being extended (in combination with “Prior Informed Consent” and “Access and Benefit Sharing” tools) to enable codification of community-owned Traditional Knowledge also. In the latter case, it is a clear injustice to those communities, if TK of this nature is shared with patent offices. 

It is hard for the Patent offices to keep the contents of TKDL secret from third parties, since no patent could be denied without disclosing the coded TK associated with the invention to the claimant. Patent Examiner can limit the scope of a patent claim on TK (or reject it altogether), only if he/she gives the relevant extract from TKDL to the inventor to show that it is a “prior art”. Fraudsters may file patent applications purely on conceptual grounds (which would look like as if they had performed the invention), only to see that they could fetch the authentic information on a TK practice/product.

It is debatable whether TKDL stops Bio-piracy or facilitates it.Instead of TKDL, a “Traditional Knowledge Docketing System” (TKDS) [something like Management Information System (MIS)] may be created and maintained by authorities. TKDS shall contain the location at which the Traditional Knowledge is available, the community that possesses the TK,a short description of nature of TK and the PROTOCOLset by the communities/TK holders for providing access to such Traditional Knowledge. TK communities shall be educated about their entitlements on the TK and they shall be empowered to negotiate their due share of monetary benefits in commercializing the TK owned by them. However documentation of the TK in public domain may be done in national interest (In the form of TKDL). This shall be laid open to public.

As the Concepts like “Prior Informed Consent”, “Access and Benefit Sharing” etc. have proven to be the wrong tools to make the Knowledge in the custody of Traditional Practitioners available for further research while upholding their interests. A sui generis legislation for the protection of Traditional Knowledge is the need of the hour.

Suigeneris legislation for “rights” on Traditional Knowledge : Kerala’s IPR Policy Imperative

IPR Policy of Kerala underscores that the Government is very much concerned about protecting its rich traditional wealth comprising of Traditional knowledge practices, Tribal medicines, Ayurveda practices and biodiversity. The Policy released on 27th June 2008, finds that the possible solution could be to acknowledge the deemed rights for the Traditional Knowledge holders and make them aware of their rights. The policy document proposes to commit all traditional knowledge, including traditional medicines, the practice of which sustains livelihoods of many, to the realm of “Knowledge Commons” and not to the “Public Domain”. “Knowledge Commons” refer to the knowledge, which is the collectively produced sphere of ideas and which is left unencumbered for the greater benefit of all.

The ownership is attributable to the State/Crown, given the fact that TK is an accumulated traditional wealth and the long kept preserve of its practitioners, tribal communities and families, wherein all of them act as deemed “trustees” of the State/Crown. Hence, the intention of the proposed legislation is ‘not exactly the creation of rights on TK’, but assigning some of the rights (not all the rights) owned by the State to those “deemed trustees”, in return of their willingness to put the TK to the realm of “Knowledge Commons”

Knowledge in digital form offers unprecedented access to information through the Internet but at the same time is subject to ever-greater restrictions through intellectual property legislation, over-patenting, licensing, overpricing, and lack of preservation. As per the latest reports, many of the Digital Libraries are now on their way to becoming ‘Knowledge Commons’. The “Knowledge Commons” will be a vibrant, user-centred learning facility integral to the academic lives of students. The Commons will integrate scholarly resources, information technology, software, expertise, instruction and study space.

While the Policy envisages proprietary rights on traditional knowledge, all the right holders will be deemed to be holding their rights under a “Commons License”, wherein the right holders shall permit others the use of the knowledge in their possession for non-commercial purposes. It is further stipulated that any development made using this knowledge licensed under the above obligation should be put back to the realm of “Knowledge Commons”, say “Traditional Knowledge Commons”, and hence denying the scope of patenting thereof.

The fundamental concept of “Creative Commons” [some rights reserved and not all rights reserved] has been adopted in Kerala IPR Policy to shape the concept of “Commons License”, as it moots utilization of the Knowledge for non-commercial purposes. To quote Lawrence Lessig, founder of Creative Commons, it is “a culture in which creators get to create only with the permission of the powerful, or of creators from the past”. “Creative Commons” provide free tools that let authors, scientists, artists, and educators to easily mark their creative work with the freedoms they want it to carry. It permits to copy, distribute and transmit the work or to adapt the work only for non-commercial purposes. If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one. Licensees may distribute derivative works only under a license identical to the license that governs the original work.

Though the concept of “Commons License” envisaged by the Policy is based on the fundamental concept of “Creative Commons” employed by open source advocates, its scope varies significantly from that of “Creative Commons License”. This “Commons License” shall not be confused with the seasoned free software concepts (or open source) and “Creative Commons” licenses like GNU GPL, LATEX etc. which mostly applies to “Expressions” protectable under “Copyright”. Specific provisions for such “Traditional Knowledge Commons License” will have to be worked out to ensure free, non-commercial reproduction and codification of the Traditional Knowledge. It has to be a kind of “deemed licence” which immediately applies on the user of TK, the moment he decides to employ it for any purpose. The provisions of the deemed license are to be laid down in the legislation to ensure free, non-commercial reproduction and codification of the Traditional Knowledge.

According to the policy document, the custodians/preservers of the TK (viz. tribal community, family etc) will be acknowledged as the right holders, but they are obliged to subject the TK possessed by them for the non-commercial purposes of all. Hence the knowledge is revealed for documentation, and enabling further research thereof. However these right holders can license the TK under their possession to others for commercial purposes on negotiated terms and conditions in accordance with the provisions of “Commons Licence”. In respect of such TK, where it is the livelihood of numerous practitioners strewn across Kerala, the State will be deemed to have rights over such Traditional Knowledge. Even though State holds the ownership on such TK, all the actual practitioners of this TK will have an autonomous license for right of commercial use from the State. But these Licensees are not empowered to sub-license this right of commercial use to anybody else, and right for transferring licenses will solely be enjoyed by the State.

Creation of rights and obligations necessitates a Governing Mechanism for acknowledging the right holders, enforcing the rights and recommending legal action against the violators of the rights and “Common License”. Therefore the Policy advises to constitute a body called Kerala Traditional Knowledge Authority (KTKA), with which the right holders will have to be registered. KTKA will give general notice to the public, regarding all applications being made to it by practitioners in order to invite Public for bringing to the attention of KTKA, any disputations of applicant’s claims or challenges to claims of uniqueness, prevalence of similar practice in more than one location or community etc. After scrutinizing all such cases of disputes and after resolving the issue of ownership/possession, that KTKA would finally register a community/group/individual as “Knowledge Custodian” of such unique set of TK practices.

It is also important that the stake holders be made aware of protecting the rights conferred to them from potential usurpation. Therefore all such stake holders would be advised to join together and form “Knowledge Societies”. ‘Traditional Knowledge Users’ Co-operatives” also will be encouraged in the legislation

Though the Policy envisages putting the developments made on TK back to the realm of “Knowledge Commons”, path breaking inventions like development of a new drug molecule or the process thereof which involves substantial developmental cost need not form part of the “Knowledge Commons” in the strict sense even if TK may form the basis of its origin. The ultimate aim of the legislation is not to protect the financial interests of the TK holders, but the benefit of the Society at large, as in the case of the fundamental concept of PATENTS. Patents bestow monetary reward for revealing technological innovation along with accolades for the inventor. Grant of patent for inventions attracts investment because the commercial exploitation of the invention is possible to its fullest extent during the term of patent. The policy does not support extending “trade secret” protection to TK and the State is totally against creation of monopoly over knowledge. Hence Kerala IPR Policy envisages the ways and means for revealing TK for the greater benefit of Society.

Constitutional sanctity of the proposed legislation

While there is no bar on Kerala State in having a policy on Intellectual Property Rights (IPR) to proclaim its stand with respect to its culture, geography, people, Biodiversity etc., constitutional sanctity of a legislation based on the Policy is debatable as IPR is a union subject. However it is imperative that we have to find ways and means to get around this constitutional law bottle neck and to push this legislation through. I have the following arguments regarding the constitutional sanctity of the proposed legislation

1) The words like “Traditional Knowledge”, “Intellectual Property”, “Biodiversity” etc. did not find specific mention anywhere under Union list, and the Entry 49 is limited to: “Patents, inventions and designs; copyright; trade-marks and merchandise marks” [The application of ‘pith and marrow’ rule may limit this scope]. 

2) The ownership of TK may be attributed to the State/Crown, given the fact that TK is an accumulated traditional wealth and the long kept preserve of its practitioners, tribal communities and families, wherein all of them act as deemed “trustees” of the State/Crown. So Traditional Knowledge is very well a “treasure trove” (Item No. 44 of State list), where the State has power to legislate.

3) Item No. 26 of State List can be used to regulate Trading of “Knowledge”. Item No. 64 provides for enforcement of punitive mechanisms.

4) Item No. 7 (Contracts) of Concurrent list and Item No. 6 (Transfer of Property) also is relevant. 

5) Article 300A covers intellectual property also. Article 304(b) and Article 19(6) gives added advantage to treat TK as a Property and hence regulate its Trading

6) The proposed legislation does not intend to touch the patent Act at all, it being a Union Subject. But a few provisions in Biodiversity Act (made using the residual powers of Central Government) needs to be supplemented with additional provisions, but employing the provisions of Articles 258A and 258 (2).

7) There is support of State directives under Article 38, 39 (b) and 39(c)

Above all, the proposed legislation is ‘not exactly for creating rights on TK’, but for assigning those rights to those “deemed trustees”, in return of their willingness to put the TK to the realm of “Knowledge Commons”

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