Letters and comment

P2P in Mexico

Following your article Pursuing the P2P Pirates ­– Balancing Copyright and Privacy Rights (Issue 2/2008), I would like to highlight Mexico’s experience in this area. In Mexico different musical firms have used the same legal tactic mentioned in the article, that is denouncing Internet providers in criminal trials for the purposes of obtaining data from Internet users. It should be stated that in Mexico there is no national regulation protecting personal data and so users are at a disadvantage regarding these questionable practices insofar as these tactics are used for industrial property protection.

Despite the above, lawyers from such firms have encountered major problems in trying to institute civil proceedings against Internet users denounced by their service providers. The first problem is the fact that it is almost impossible to prove that the person that signed the Internet contract is the same person that has used said means to infringe copyright, since on many occasions it may be a family member, dependant or employee that is responsible for such conduct, without there being objective responsibility for the holder of the Internet account. The second is proving that the person distributed or benefited from the transfer of archives, and the third is the notable lack of civil procedure expertise in these lawsuits, including missing deadlines and forgetting to exercise basic rights.

From Sergio A. Bravo Valle, National Deputy Director of Litigation, Alvarez Puga and Associates, S.C., Mexico.

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Photo: WIPO/Maasai Culture Heritage Foundation

Kerala State (India) IPR Policy – rights creation on Traditional Knowledge

Readers of your article Digitizing TraditionalCulture (Issue 3/2008) may be interested to learn of the Kerala IPR Policy 2008 which proposes legislation to prevent misappropriation of Traditional Knowledge (TK) and knowledge associated with biodiversity. The Policy outlines the Government’s concern about protecting its rich traditional wealth, comprising TK practices, tribal medicines, Ayurveda practices and biodiversity, which attribute to and forms the basis of livelihoods of many TK practitioners and which, in the absence of legal property rights, may be appropriated by private businesses.

Codification of TK into Digital Libraries is not a complete solution to misappropriation. Hence the Policy document finds that the possible solution could be to create rights on Traditional Knowledge and make its potential right holders aware of their rights. The Policy proposes to commit all traditional knowledge to the realm of "Knowledge Commons" and not to the "Public Domain". While the Policy envisages creating property 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 word "Commons License" used here is based on the fundamental concept of "Creative Commons" employed by open source advocates, but its scope varies significally from that of "Creative Commons License". Specific provisions for such "Traditional Knowledge Commons License" will be worked outto ensure free, non-commercial reproduction and codification of the Traditional Knowledge . It is a kind of "deemed licence" which immediately applies on the user of TK, the moment he decides to employ it for any purpose. 

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. 

Kerala Traditional Knowledge Authority (KTKA) will be set up for registering right holders and for recommending legal action against the violators of the rights and "Common License".  

Though the Policy envisages to put 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. 

R. S. Praveen Raj, Scientist – IP Management & Technology Transfer, National Institute for Interdisciplinary Science & Technology (NIIST), India

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Intellectual Property Rights and the curriculum of Law Schools

I read with interest your Book review: Teaching of Intellectual Property – Principles and Methods (Issue 2/2008).IP is an extensive and complex subject. It relates simultaneously and compulsorily to protection of the social and economic order, at both the national and international level as a human right needed for sustainable development. For Brazil, as a developing country, this systematic inter-relation is all the more important.

The State is responsible for bringing into harmony two difficult, but necessary functions of IP, namely the defense of private property interests (contractual), which seeks profit and produces economic development; and the defense of social interests, which is about access to knowledge, education, culture, health and life with dignity. Since these rights correspond to a financial onus on the State, it is necessary that it acts in partnership with the private initiative [sector?] for the execution of all its constitutional obligations.

In these circumstances, it is necessary that law schools join in the endeavor, recognize IP as an important subject in its own right, and educate future professionals in the very diverse fields of IP. Some educational institutions in Brazil are already in the forefront. But it needs to go further. IP should be included in the mandatory curriculum of all graduate schools. This way, everybody wins: business, society, the State and the judicial community.

The compulsory inclusion of IP would also correct some problems, such as the fact that the subject currently tends only to be approached from the aspect of commercial law, keeping out the human and holistic approach; or from the aspect of constitutional law, keeping out the economic and holistic approach. Both approaches ignore the necessary international foundation , which establishes a minimum harmony so that all those interested in developing, trading and consuming the results of intellectual production may work across national borders.

This is a daring project for all those law school directors and coordinators willing to aim beyond a standard preparation of graduates, towards a more proactive attitude regarding the national economic and social system, in order to further sustainable development.

From Professor Maristela Basso, University of São Paulo, and Professor Patrícia Luciane de Carvalho,University of Curitiba,
Brazil .