Current intellectual property (IP) regimes are excessively formalistic in their orientation. Not too surprising, given that their creation and sustenance has largely been the preserve of lawyers trained in formal legal thought, with little input from other disciplines such as science, sociology or economics.
One watches with deep anguish as such regimes take on a life of their own, forgetting the simple yet hard truth that they are not ends unto themselves, but are mere means to help serve a greater end, i.e., fostering more innovation and creativity. In other words, patents are valuable to us only to the extent that they help engender more innovations for society.
Not only are IP rules excessively formalistic in their orientation, they also cater largely to what one might term as the “formal” economy. In other words, there is an assumption that innovation is the sole prerogative of a lone inventor who does her research within the closed walls of a formalistic entity that we call the “corporation”. Similarly, copyright norms are premised on the assumption that content creation is the preserve of artists and writers who tie up with big media giants and publishing houses.
A close look at the nature of our economy today, characterized by Web 2.0 and the vast social/ collaborative networks built on it leads one to seriously question the above assumptions.
Illustratively, the open-source movement has opened our eyes to the fact that an informal network of programmers can bring us highly innovative and free software products of a kind never thought possible under a proprietary model where coding was controlled by a single corporation and products placed on the market at monopoly prices. Such collaborative/democratic/user innovation models are now being attempted in other technology areas such as biotechnology and pharmaceuticals. And they are bound to succeed, given that innovation is not a formal or linear process directed by a lone inventor, but a social process involving a multitude of different actors.
Indeed, India’s very own Council of Scientific and Industrial Research (CSIR) is now attempting to leverage an online collaborative model to come up with a new drug for tuberculosis (TB). That the gold standard for TB is a drug from the 1960s and that we haven’t had any major breakthroughs since then leads one to seriously question the current IP model around drug innovation; a model that brings us fewer innovative drugs each year and more me-too versions.
In the context of copyright law, the rise of user-generated content has thrown archaic copyright norms into serious question. Content is being created and posted on social forums such as Facebook and YouTube at a pace that might soon rival the speed of light. Similarly, content is shared between millions of users through several online platforms such as BitTorrent and LimeWire.
In the specific context of India, where almost 90% of the economy comprises the “informal sector”, the above truths hold even greater sway. The National Innovation Foundation, run out of IIM Ahmedabad, has compiled more than 50,000 innovations belonging to the rural “informal” poor and virtually demolished the assumption that innovation is the preserve of the rich and the “formal”. But merely identifying such innovative potential in India’s villages, often referred to by Mahatma Gandhi as the “real India”, is not good enough. One has to do more in terms of coming up with norms that help these poor communities leverage their creativity.
Newer IP regimes in India, such as the protection of geographical indications and plant varieties, throw the relevance of “informal communities” into sharper focus, dealing as they do with communities of farmers and artisans. Similarly, as India moves to devise norms for protecting and leveraging its ancient “traditional” and indigenous knowledge, it will again have to cater predominantly to informal communities that live on the fringes of the existing IP regime.
This regime, largely a Western heritage gifted to us by our colonial masters, and further entrenched with the help of an inequitable international instrument called TRIPS, is very “individualistic” in tone and focuses specifically on identifiable inventors and authors. This sits in sharp contrast with the “community” focus in India, where things like traditional medicinal knowledge and folklore have no clearly identifiable authors or inventors, but have been preserved by indigenous communities over hundreds of years.
Let me end this note by highlighting a paradox that characterizes IP regimes. Since their inception, most such regimes have been fairly static in their orientation, and have failed to reflect any “innovation” and “creativity”, the very same values sought to be encouraged by such regimes.
India has demonstrated its potential for innovative IP norms by articulating section 3(d) in its patent regime, a section that helps balance pharmaceutical patent protection with the need to preserve access. Given the importance of our informal economy, can we take this opportunity to innovate within this space as well by conceptualizing a set of “informal” IP norms?
Thanks for this very interesting out-of-the-box article. This comment is limited to your thoughts about traditional knowledge. You say that India’s traditional systems are premised on “community” paradigms rather on the “individual”. The danger in making this wholesale assumption is that it regards traditional knowledge as static and unchanging. Many outstanding pieces of traditional arts have interwoven a layer and continuity and a layer of change and individuality. I don’t think any of us want a knowledge or art system which is frozen in time and is impervious to the creativity, quirkiness and instinctive market senses that our folk artists have always possessed.
IP is not a Western or colonial system, it is a modern system. And as India becomes more and more a modern society (I say modern in the sociological Durkheimian sense) premised on individual agency and entrepreneurship, the IP system with all its faults increasingly fits in.
The primary issue seems to be that it is time to help traditional knowledge holders harness their knowledge and skills for the market and help them share and diffuse this valuable knowledge to their betterment – and IP can be a great tool to help them do that. So, even within the present IP system, tools like certification marks and geographical indications can be used (and is already being used) along with copyright to come up with creative ways to market these pieces. The formal IP regime is just a tool to facilitate sharing of knowledge and creative works, it is not an end in itself. Even without the formal regime, we sometimes forget that communities have always had informal ways of protecting their knowledge and skills which have sometimes scuttled sharing and disbursement of this knowledge/skills for their advantage. Thus, IP not within the formal IP regime is not necessarily in the public domain. The formal IP regime has always been a dynamic, interest-driven process (like all lawmaking) and it is up to us how we use it and structure it for our benefit rather than rail about it.