A Treaty Towards Transparency and Fairness

Abstract:
The recently adopted Treaty on IP, Genetic Resources, and Associated Traditional Knowledge by the World Intellectual Property Organisation marks a milestone in global IP governance, reflecting India's longstanding efforts to safeguard its traditional knowledge. However, concerns linger regarding enforcement mechanisms, potential impacts on India's patent system, and the treatment of confidential information, posing challenges to implementation and effectiveness.

The World Intellectual Property Organisation (WIPO) recently adopted a Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge on 24th May 2024 after years of negotiations. This recognises the strong connection between indigenous communities, their genetic resources, and traditional wisdom. The treaty aims to protect biodiversity, improve transparency in the patent system, and encourage inclusive innovation. After over two decades of negotiations, the treaty was adopted with the consensus of more than 150 countries, requiring patent applicants to disclose the origin of genetic resources or traditional knowledge used in their inventions. This provision will safeguard Indian genetic resources and traditional knowledge from misappropriation in countries without existing disclosure requirements, setting a new global standard for protection. This marks the beginning of a collective journey towards sustainable growth, championed by India for centuries. The country has worked hard to make sure its traditional knowledge is included in the international intellectual property system.

There is a long-standing and pressing issue surrounding biopiracy, which refers to the unethical exploitation of genetic resources and traditional knowledge from Indigenous communities without providing fair compensation or obtaining proper permission. This exploitative practice is particularly prevalent in developing countries and often involves the patenting of products derived from these resources without recognising or compensating the original knowledge holders.

Several prominent instances of alleged biopiracy include the patenting of the medicinal properties of turmeric and neem tree extracts from India, as well as patents on extracts of the African "Hoodia" cactus and the Amazonian "ayahuasca" vine, which have been traditionally used by indigenous communities. Genetic resources, including those present in medicinal plants, agricultural crops, and animal breeds, are increasingly utilised by companies across various sectors such as cosmetics, pharmaceuticals, biotechnology, and food supplements.

While efforts have been made to enhance the transparency of intellectual property related to the traditional knowledge of Indigenous peoples, there remains a significant gap in addressing the issue of fair compensation for these communities within the existing legal framework.

According to Article 3 of the treaty, when filing a patent application that involves genetic resources, applicants must disclose either the country of origin of these resources or, if that information is not known or applicable, the source of the genetic resources. Similarly, for patent applications based on traditional knowledge linked to genetic resources, applicants must identify the Indigenous Peoples or local community from whom the knowledge was obtained, or if that information is not known or applicable, the source of the traditional knowledge. If applicants do not know any of this information, they must declare this, affirming its accuracy to the best of their knowledge. Contracting Parties are expected to provide guidance on fulfilling these disclosure requirements and allow applicants to correct any mistakes or omissions. However, Contracting Parties are not required to verify the authenticity of the disclosed information. The disclosed information should be made available following patent procedures while ensuring the protection of confidential information.

Article 5 of the treaty underscores the importance of allowing applicants to rectify any disclosure failures before imposing sanctions, except in cases of fraud. It also specifies that patent rights should not be revoked solely for failing to disclose information unless explicitly stated in the treaty. Furthermore, it permits Contracting Parties to establish post-grant sanctions or remedies for fraudulent disclosures, in line with their national laws.

Article 6 discusses the creation of information systems for genetic resources and traditional knowledge associated with genetic resources. It highlights the necessity of consulting Indigenous Peoples, local communities, and other stakeholders. These systems should be accessible to patent offices for examining patent applications, with proper safeguards and authorisation by the Contracting Parties. Additionally, the Assembly of the Contracting Parties may form technical working groups to address issues related to these information systems, including accessibility with appropriate safeguards.

The treaty's disclosure requirement for patent applications appears largely formalistic, particularly in light of the sanctions for non-disclosure. The treaty states that a patent cannot be revoked for non-disclosure unless fraudulent intent is proven, potentially necessitating significant changes to laws in countries like India that currently impose penalties for such non-disclosure. Although Contracting States can impose post-grant sanctions for fraudulent disclosures, they are not required to verify the authenticity of the disclosure, raising questions about how fraudulent intent would be identified and potentially weakening the enforcement of sanctions. If India were to sign the treaty, it might need to relax its stringent disclosure requirements for the origin of inventions, making it harder to reject patents on these grounds and possibly leading to an influx of low-quality applications. With no option for reservations to the treaty, this change could undermine India's efforts to prevent poor-quality patents. Additionally, the treaty's vague terms regarding "confidential information" and the removal of provisions for "exceptions and limitations" could create uncertainty and restrict public interest deviations. The treaty's impact on India's Traditional Knowledge Digital Library is also a significant concern.

IP Round-Up

1. Recent rulings in the Delhi High Court regarding Jackie Shroff's "bhidu" and Anil Kapoor's "jhakaas" have ignited discussions about the legal protection of celebrities' catchphrases, images, and personality traits, raising concerns about its potential impact on creative freedom and expression. Upheld by the Supreme Court under Article 21 of the Constitution, this trend seeks to prevent unauthorised commercial exploitation of celebrities' names, voices, and likenesses, though experts worry about stifling creativity. As digital platforms become key channels for content dissemination, there's a growing need for heightened monitoring to prevent unauthorised use of celebrity content, prompting content creators to navigate carefully and consider royalties, disclaimers, and creativity to avoid infringement risks. Additionally, the evolving landscape of personality rights in India, despite the absence of specific legislation, underscores principles of dignity, privacy, and protection against personality misuse, with recent legal precedents like the Sushant Singh Rajput case and the Amitabh Bachchan verdict expanding rights into virtual reality. Balancing celebrity rights with fostering creative innovation is crucial, particularly in the digital realm, as courts navigate the complexities of personality rights' scope and limitations.

2. Veteran music director Ilayaraja has served a legal notice to the producers of the Malayalam movie "Manjummel Boys" for allegedly utilising his song "Kanmani Anbodu" from the 1991 Tamil film "Guna" without proper authorisation. This development has occurred amidst the film's successful streaming on Disney+ Hotstar since May 5, yet the producers find themselves embroiled in legal troubles, including a Kerala High Court stay on criminal proceedings stemming from a cheating case filed by an investor. In response, one of the producers, Shawn Antony, has contended that they obtained necessary copyrights from Pyramid and Sreedevi Sounds, the two music labels holding rights for the song in various languages. However, Ilayaraja persists in asserting his moral rights over his compositions, a stance he has previously upheld in legal battles, including a recent dispute involving Rajinikanth's film "Coolie."

3.BharatPe and PhonePe, leading fintech players, announced a landmark resolution on Sunday, settling their prolonged trademark dispute over the use of the suffix "Pe" in their brand names. After five years of legal battles across various courts, both parties have agreed to withdraw all complaints against each other with the Trade Marks Registry, facilitating the registration of their respective trademarks. The settlement encompasses obligations under the agreement concerning cases in the Delhi High Court and Bombay High Court. This resolution marks the end of a complex legal saga, allowing both companies to refocus their efforts on advancing India's fintech landscape. The amicable conclusion underscores the maturity and professionalism exhibited by both managements in prioritising collaboration over contention.

4. The dispute over the origins of butter chicken and dal makhani took a fresh twist as Moti Mahal filed a petition in the Delhi High Court seeking the cancellation of the Daryaganj restaurant chain’s trademark. Justice Anish Dayal issued notice on Moti Mahal's plea, scheduling a hearing for July 2024. Moti Mahal contests the registration of the trademark “Daryaganj: By the inventors of butter chicken & dal makhani,” granted to Daryaganj restaurant in 2018. They argue that their long-standing tagline, “Inventors of original dal makhani, tandoori chicken & butter chicken” since 2005, predates Daryaganj's claim. Additionally, Moti Mahal has initiated a civil suit against Daryaganj, alleging misleading use of the tagline “Inventors of butter chicken and dal makhani” and asserting that Daryaganj is falsely implying a connection between the two establishments. The court is set to hear this case on May 29.