In the run up to the festive period I cannot seem to get the song the ‘Twelve days of Christmas’ out of my head. If you are willing to brave the catchy lyrics here’s a classy version and a lighter version. Given that the twelve days following Christmas lead up to the celebration of Epiphany, it seems particularly appropriate for my discursive list that follows.
There is no doubt that the Indian Department of Industrial Policy and Promotion got itself into a pickle with respect to the membership and mandate of its newly constituted National Intellectual Property (IP) Policy Think Tank (see here and here). A national policy that is worth the bits it is written on must engage with controversy and disagreement – which is why I was glad to see Basheer and Pai’s rich paper termed a ‘Baseline Draft Policy’ – flagging up points of interest for further discussion. It made me think about what a truly discursive policy making process would look like, and how we may inch our way towards what Benkler calls ‘co-operative human systems design’ – that would take into account greater diversity of human types and attitudes to law and policy.
In 2002 the UK’s DFID financed an International Commission on Intellectual Property Rights led by the late Professor John Barton of Stanford University. The six members, including academics and legal practitioners, commissioned ‘study reports’ on topics as diverse as access to medicines, plant variety rights and the human genome project. These were published and followed up with discussion meetings with the authors where the Commissioners palpably engaged in deep learning. I wrote Study Paper 10 – on the human genome project – and learnt a lot about discursive process in the two meetings that followed the completion of my report. Then the Committee took a few months to come up with a measured and comprehensive report about the relationship between intellectual property rights and development across all the areas they studied.
It was a remarkable body of work with enduring value. A consequence of this report in the aftermath of the Doha Declaration was that it was no longer possible to assume that greater intellectual property standards would lead inevitably to ‘development’, without also acknowledging the ways in which the assumption did not add up. What Prof Barton’s Commission did so well was to assume the mantle of thoughtful and receptive learners. Policy-making particularly on something as open-textured as a national IP policy requires a root and branch analysis, controversial positions will need unpacking, and compromises will have to be struck in credible ways. The GOI notice dated 13th November 2014, asking for ‘interested parties’ to provide comments to the new think tank by Nov 30th in contrast provides little opportunity for good outcomes.
Inspired loosely by Benkler’s ideas and institutional approaches, I have a list of yes, twelve ‘gifts’ I hope any national action plan on IP will give India. And because I could not get my comments to the think tank on time, I include here a few select resources that provide background to my ideas.
1. If intellectual property rights are the solution, what is the problem? If all you have is a hammer, then everything you see begins to look like a nail. There is a tendency to beat every problem around innovation with the IP hammer. Intellectual property rights are one way of adding to the value of products and services, but by no means the only way or the most productive way in every context. A little perspective on this would be welcome, particularly on the following two points.
First, we must recognise that monopoly rights can and do get in the way of productive competition (see Boldrin and Levine’s work). Policies that protect competition are necessary for the fecundity of a young, socially mobile and technically qualified population. IP rights must be combined with policies that appropriately preserve and grow our educational and innovation commons. The second is to take seriously recent work on behavior that demonstrates the limited value of commercial incentives. Dan Pink, Eric Johnson and Jessica Silbey amongst others, are working towards a fuller picture of human motivation. Some of this work suggests that monetary incentives work well for routine creative tasks – for truly innovative work, commercial incentives like those that are expected to follow from the granting of intellectual property rights are not as productive as some of our most fundamental legal concepts assume.
2. Where shall we place public interest? Public interest as a notion is adrift – understandably so as India is involved in a large scale implementation of laws that were fashioned for more prosperous economies. The considerable social cost of granting intellectual property rights becomes invisible when we view legal disputes as a mere private affair between litigants. Public interest is not the same in the short, mid and long term; and sometimes incommensurables will have to be weighted. I would like to think that the think tank will be circumspect about claiming to have a full understanding of where to draw that line – but our courts need a steer on the legitimacy of public interest explorations in IP disputes.
3. Do not promote intellectual property rights. The role of the government should be to facilitate, and not to actively promote intellectual property rights. These rights do not themselves translate to increased innovation, economic growth or well being, they are mere proxies for unclear productive gains. Actively encouraging a ‘service’ or ‘performance’ based corporate approach to increasing the ‘use’ or ‘take-up’ of intellectual property rights, risks privatising the public goods nature of these rights (see here for an unusual view on how meaningless patent numbers can be)
4. Are we allowed protectionism? Protectionism has become a dirty term in the context of multilateral economic governance. India needs to take a longer-term view of how best to nurture and support domestic and local industries. This may mean taking a political stand on cutting back intellectual property monopolies where appropriate so that some domestic industries can come out of the shadows of being branded merely generic or copycat and have the wherewithal to become even more innovative. We should explore the full spectrum of options available – a mix of IP and regulatory incentives, reclaiming regulatory sovereignty, as well as selective ‘civil disobedience’ within our international legal obligations. (I view the position of the SC in Novartis v UOI as bordering on international civil disobedience of a kind. See here for a case comment).
5. Release intellectual property from the specialist bubble. Often legal standards in IP are subject to hyper-contextualisation where meanings of legal terms are compacted to an extent that it becomes a barrier for critical theorists, legal philosophers and civil society who are unable to engage with the law. A law that is difficult to scrutinise for substantive or methodological content cannot claim to be legitimate. This is a particularly serious problem in patent law. To temper the specialist bubble we need to cultivate generalist oversight through appropriate expertise in ministries, civil society and within our High Courts.
6. If you want to change the law, change the institutions. Our regulatory measures and legal policies are only as good as the people and institutions that make them – transparency, the pursuit of competence without fear or favour, the willingness to learn and refine – these are qualities worth cultivating. What would this mean with respect to the Indian court system? Professor Dreyfuss has written an engaging paper about the significance of ‘percolation’ in IP adjudication – a process where the decisions of mid-level appellate courts form conversations that, over time, craft legal doctrine. We stand to lose this discursive approach when we create specialised tribunals in our search for the certainty that such tribunals promise. Detaching IP laws from constitutional or generalist reasoning and replacing it with a highly instrumental reasoning typical of specialist courts will rob us of an opportunity to grow mature legal doctrine. At the very least specialist tribunals must be approached with caution.
7. How are we judging? Indian High Court judges are an essential part of maintaining oversight, and we need their expertise in constitutional reasoning, evidence weighting and statutory interpretation. What they do not have by way of expertise in intellectual property law we must provide them with broad based academic and senior practitioner led training.
8. How do we design a patent office that is fit for purpose? In leading countries, patent offices have been transformed from obscure bureaucratic bodies to self-funded global agencies with the power to direct legal standards and complex policy. Today more than ever the nub of patent law lies in the institutional processes of the patent office – the drafting of Examination Guidelines, patent prosecution, and robust examination processes. Yet, only a small handful of developing country patent offices have publicly available patent Examination Guidelines. Often collaborating with other patent offices, such as the US or European Patent Office, involves sharing ‘expertise’ – an important conduit by which law is de facto harmonised. I am not recommending that India shun all efforts at ‘technical assistance’, just that we stop viewing these as benign if we want a stab at developing domestic agendas. Professor Drahos’ exceptional study on patent offices and their role in the global governance of knowledge, is a beacon in these troubled institutional times.
9. What are the appropriate sources of comparative law? A striking feature of the Indian Supreme Court decision in Novartis v UOI is the haphazard way in which both parties and consequently the Court, used decisions from other jurisdictions. Because countries like the US and UK have had a head start of over 100 years of litigation on IP, there will always be a decision sometime, somewhere that matches what the counsel wants to argue. Unless our judges know how to disregard decisions from incomparable jurisdictions and times, we will end up with a patchwork of incoherent reasoning.
10. Cast the expertise net wide. In recent years a number of independent thinkers such as Shamnad Basheer, Lawrence Liang and Prof N S Gopalakrishnan have led significant efforts at developing alternate perspectives on intellectual property; as have a number of senior academics in leading Universities outside India who have produced scholarship of direct relevance. Academics along with industry interests should be actively encouraged to articulate their positions in the course of policy and judicial decision-making. I would go so far as to say that appellate judges should actively exercise their suo moto authority to obtain background and context to the particular legal disagreement they are adjudicating.
11. Copyright enforcement can mask a number of ills. Copyright law is increasingly being used as leverage to bring in online surveillance and architectures of control. Any position on IP must explore online freedoms and contribute to a balanced approach to copyright enforcement.
12. Amend the Directive Principles of State Policy to embed balance and public interest in national conceptions of IP. Finally, I believe we should actively seek a constitutional amendment for at least two reasons. One, so that notions of ‘balance’ and ‘public interest’ are less subject to political compromises struck as part of short-term gains in international negotiations. And secondly to signal that intellectual property rights deserve sustained attention from constitutional theorists distinct from the discourse on tangible property rights.
This post originally appeared 19th December on SpicyIP. It is reposted with permission.
Cover image: Adapted from Wikipeadia/Xavier Romero-Frias.
About the Author
View her previous India at LSE post on Novartis vs. Union of India here.