The Hindu Business Line : Whose intellect, what property?

Woman in a field with the Amaranthus crop in Jardhargaon, Uttaranchal... The issue of ownership of wisdom in agriculture has never really occurred to the farmer, or the farming community.

EVERYTHING seems up for sale today and the stakes are high! The global trade regime is ready to commodify it all as long as there is a market value, be it seeds, labour, technology and even knowledge. There is competition and the push to rise above the ordinary to ensure that there is an assured return of profits. But this onus of high performance brings with it a whole new set of insecurities.

There is, more and more, a `need' for ownership, securing individualism and so on. For those who are in it, it is a war, and all is fair if you want to play the game. Survival, for countries like ours, though, comes at a huge cost.

The concept of intellectual property rights (IPRs) stems from this very reality. If one tries to understand what is being perpetrated in a common-sense manner, it would be that anything innovative or new anyone would do, is from that person's intellect and thereby his or her `property'! But, this logic fails to recognise some basic values with which people have been living till now.

For instance, the traditional wisdom in agriculture. If one asks a farmer in India, who would be the owner of the knowledge of how a particular crop needs to be cultivated, there would be no clear answer. In most cases, the issue of the ownership of this wisdom perhaps has never really occurred to that farmer, or the farming community.

`Rights' is the other aspect of this IPR regime, which argues that to ensure that there is no theft of knowledge or product, propriety would need to be established over it. But when no one really owns an intellect, like in the case of the farming community, above whose rights would one want to `secure'! How does one interpret the same global concept of intellectual property within such a community set-up?

Or, for instance, a tribal community might be using a particular plant with medicinal values to cure a certain disease. The knowledge of the use of the plant has grown out of traditions that have been passed on over generations. There might be other communities using the same or a modified version of the knowledge system. Obviously, no one can stake an exclusive property right on this?

Of course, one needs to view the context within which even community values are struggling to survive today. There are surely cases where they would be convinced of the profits that might accrue of staking claim on what is otherwise traditional knowledge, common to all.

This might be independent of, in collaboration with or in compliance with a certain commercial interest wanting to use and stake propriety on the use of a part or whole of that knowledge.

The big question here is, how informed is the choice and how fair is it? Further, from where have these concepts of ownership and profit come to be felt within the community?

It is within these realities that one needs to view any kind of understanding or agreement on the question of intellectual property rights.

The World Trade Organisation's Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) makes it mandatory for all countries to establish standards for intellectual property `protection'.

This Agreement came into effect on 1995, and all `developing' countries, including India, needed to fulfill the above requirement by 2000. While the `developed' countries were to implement this requirement by 1996, the schedule for the `least developed' ones gave them time till 2005.

The most-talked about system of ensuring IPRs internationally is that of the patents. Quite simply, anyone wanting a patent is basically looking for an exclusive right over a product and/or the process of creating that product for a certain period of time.

Since a patent is granted by a government (national government/regional patent office servicing a group of countries) it gives a legal right to a person or an institution.

The TRIPs Agreement through its Article 23.7 (b) mandates that a patent must be made available by member-countries on any invention, whether products or processes, in all fields of technology. However, this is provided when it is `new', involves an invention, and is capable of industrial application.

There are certain exceptions to these requirements, though, and that is where some of the complications creep in! Plants and essential biological processes for the production of plants cannot be patented. However, ironically, the same Article goes on to say "members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof".

So, are plants actually excluded from the purview of IPRs or not? The Indian law, The Protection of Plant Varieties (PVP) and Farmer's Rights Act 2001, institutionalises IPRs. Among other things, this Act allows for the privatisation of plant genetic resources and enables plant `breeders' to establish rights (commercial) over plant varieties.

A strange set of dichotomies and ironies.

This is especially so for those who are directly dependent on natural resources but would not even know of these national and international dimensions challenging their traditional and, often orally, transmitted knowledge.

There are various perspectives on the use of patents as a system of ensuring and/or establishing exclusive ownership. Many of them stem from the system one is already a part of. But without getting into the nitty gritties of the whole debate, certain things seem obvious.

These are aspects, which define who are the winners and who are the losers when one decides to follow such IPRs. One needs to understand within the context of power, and that too in relative terms.

In whose interest would be a patent claim by an American multinational company on a rice variety grown in India for generations, only because there is a slight genetic modification in it? Obviously, the farmers of the developing country would lose control over their seeds.

Traditionally, after harvesting a crop, farmers put aside seeds, which they can use to cultivate the same crop the next year. Often the seeds are even shared within the community. Once there is a patent on that particular seed, it would become illegal for the farmer to use it, without the permission of, or purchase from the company that has got the exclusive ownership on the seed. Each year, the farmer would be dependent on the company for the seed, even if the last crop has failed and there are no resources to purchase seeds!

The same would apply even for a commercial interest within India. Where is the justice if a methodology of bee-keeping by the tribals of a region is recognised to be commercially viable, so the process might just land up as rightful claim by a `interested' individual, making it illegal for the community to use the technology henceforth, lest they pay royalty?

In most cases, it is impossible to define which person or even community and, moreover, in which geographical location is `the' owner of a particular kind of knowledge.

Take for example, if one would want an exclusive right to market mahua, the liquor brewed from the flower of the same name by tribal communities, essentially in the central India. How would one pinpoint where the actual source of that knowledge is?

So, even if we are sensitive enough to admit that over and above the patent the benefits of the use of that particular knowledge would go to a community, where would the spread of that particular community begin, and where would it end? It is very possible that large commercial interests are able to utilise this ambiguity to get their set of `rights', by selling a modified version of the brew.

But the world is in a hurry. There is increasing pressure to put national-level IPR standards in place, without finding solutions or answers to any of the above issues, though enough activist groups are shouting themselves hoarse about it.

This is despite the fact that there is an `inbuilt' review option within the TRIPs Agreement, reiterated at the (Doha) Fourth Ministerial Conference of the WTO in November 2001.

It clearly directs that the long-pending review of the implementation of the TRIPs agreement should actually be done. It also emphasises the need to examine the relationship between TRIPs agreement and the Convention on Biological Diversity (the primary international treaty on biodiversity conservation), towards protecting traditional knowledge and folklore.

India has, and continues to put into place, TRIPs-compliant national policies and legislations. The pro-IPR approach is reflected in the National Seeds Policy, 2002, Protection of Plant Varieties and Farmers' Rights Act, 2001, National Agriculture Policy, 2000 etc.

Then, there are newer enactments such as the Biological Diversity Act, 2002, which are meant to be conservation laws. However, by recognising IPRs, there is an obvious acceptance of the law. Thereby, none of these bits of legislations are fully adequate or are able to rise above the issues one has been discussing till now.

At another level, there is enough that needs to be done in the international arena. To begin with, the international pressure towards the implementation of the TRIPs Agreement needs to reduce. It is essential that the review option reiterated at Doha be exercised, sooner and not at any later stage.

Also, when it comes to aspects of the biodiversity conservation and protection of traditional knowledge systems, the Convention on Biological Diversity needs to have primacy over WTO.

But, most of all, none of this is of any use without a fundamental change in mindset. A change that requires one to rise above individualism and recognise that certain knowledge, practices, and even products need not have propriety attached to them. Something that makes us believe that not everything needs to be up for trade and not every intellect can be owned!

(The author is a member of Kalpavriksh Environmental Action Group, Delhi.)

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