Lokesh Vyas and Swaraj Paul Barooah, Spicy IP, Link
Intellectual Property Rights – a fascinating ‘subject’ that inadvertently touches upon so many aspects of our day to day life, whether we’re conscious of it or not. A few decades ago, even most lawyers wouldn’t have been able to clearly explain what a patent is. Fast forward to today, and while there’s still plenty of misunderstanding – patents, copyrights, trademarks, inventions, innovations, 4th industrial revolution, etc have all become buzzwords! Simultaneously, the ever growing division between “pro-IP” and “anti-IP” people have polarised views to such a large extent that it has become increasingly difficult to question another’s position, without being forced into a camp – a theme Shamnad touched upon frequently. Is there space for a genuine discussion around the whats, whys, whens and hows underlying the IP system? For asking questions such as – why does “pro-IP” often get translated to ‘easy grant of patents’ instead of ‘a better IP system’? Is IP a rule or an exception, in a free-market society? What implications do the colonial origins of the IP regime have in a post-colonial world, if any? What type of incentives do people look for, and what trade-offs can we make to give those incentives? What role does IP play in the larger ‘knowledge economy’? And for that matter – where does one even ask these questions? Legal academia desires formal strait-jacketed, peer-reviewed answers, not open-questions, with variable perspective-based answers (especially if they in turn give rise to further questions!). And classrooms often do not have time or mind-space to allow for wandering discussions, when they have a time-bound syllabus to teach.
After several long discussions over several of these types of questions – two of us (Lokesh and myself) decided to take a shot at a different format. An imaginary classroom, in a (hopefully weekly) series called “IP Reveries”, where the aim is to question, rather than to answer. To give space to ask questions via both a professor attempting to guide the class, as well as through students trying to understand the subject. If we were talented enough, we could’ve perhaps tried to create it as a play-script, but as you’ll see, it is more just an imagined conversation, where we also take ‘creative liberties’ in inserting connected readings, and jumping between topics. While we’ve been working on this for quite a while, it’s a convenient coincidence that we’re ready to go just in time for World IP day on April 26th!
Our primary aim has been to have fun while ‘scripting’ out all sorts of questions around IP, for ourselves and to ensure that the reading doesn’t become a set of boring queries for the reader! There’s a general attempt to focus on questions that may often be taken for granted, as well as to give voice to many of the ‘too small to ask’ questions that many may have had while thinking about the subject, be it in class, academia, court, policy discussions, or late night discussions/arguments with friends, etc. Due to their nature, these may sometimes be a little longer than our usual posts. We hope that the narrative style makes it easy enough to read though.
As is currently planned – our first few sets of posts will focus on an extremely basic set of questions – that of whether there should be any significance attached to the words ‘intellectual’, ‘property’, and ‘rights’, in this particular set of government policies that we bring under the umbrella of “IPR”. After all, these words certainly do carry a rhetorical weight, which in turn often lays out an initial framework for how “IPR” is contextualised in our minds, when we start to learn about the subject. Once we’ve put out the first set of ‘classes’, we intend to diversify what we cover in future posts, currently planned at approximately once a week. While the initial set of classes will look at some basics, theory and history of IP, the plan is that if we are able to, we will eventually start using this space to also discuss especially interesting case-laws, or policy changes as well, including with guest authors.
Disclaimers: All the characters are fictitious, and it should be said up-front – we don’t necessarily endorse any of the arguments or positions that may be outlined in this series, by any of the characters. They are primarily meant to facilitate discussions and meant more as a way of putting arguments out to think, rebut, critique, or mould into their own. Some dialogues are added merely for the snark value, to add some amusement into the class. Wherever possible, we have tried to link useful pieces to give ‘further readings’ on a point, but we may also use hyperlinks for other purposes, such as linking to a tangential point that we think may be interesting as side-reading. In case you find something worth highlighting or discussing with respect to a particular idea/topic/argument, please comment and let us know.
Acknowledgements:
Two notable works that primarily inspired our interest to explore this dialogic series as a method of communication, are the works of two brilliant law professors cum legal artists – Prof. Shamnad Basheer’s “Artificial Invention: Mind the Machine!” and Prof. Keith Aoki’s “Pictures within Pictures”. Of course, these are just two conscious recollections that we believe have shaped our views on this. Special mention also goes to the present and former SpicyIP team members, and comments on the blog, who with the regular back and forths over email, have been channeling this dialogue-esque approach for the past several years now. A big thanks also to all those who read earlier versions of this and provided their feedback. And of course, thanks to the innumerable ideas/papers/people(s)/interactions that have consciously or subconsciously led to the ideas we’ve reproduced in the series.
To read Prof. Basheer’s work, see here and watch his talk on storytelling in law. For Prof. Aoki see here and here. Interested readers of “IP-fun” can also look at “Commons Right” (a poem by Prof. Basheer and John Daniel), “Open Access-Style” (a poem by Prof. Basheer), “Theft! A History of Music” (a graphic novel by James Boyle and Jennifer Jenkins), and “Bound By Law” (a graphic novel by James Boyle, Jennifer Jenkins, and Keith Aoki). (If readers are aware of more stuff like that, do let us know through comments.)
Class I – “IPR” – A Tantalising Term or Troubling Terminology?
Swaraj Barooah & Lokesh Vyas
…
(The first class after a very, very long pandemic break, set somewhere in the near future.)
Edge Jaitley (Dean): (with an optimistic smile): Congratulations on this convergence after the catastrophic corona! Why looking so pale! Please meet your Professor Antilegend, a promising polyglot who will take your Intellectual Property Reveries class this year. So, your initial initiation! Interrogating the integrity of the ‘intellectual’, the propriety of the ‘property’, and the righteousness of the ‘rights’ in this confounding confusion that is IPR! (Hands over the class to the Professor).
Prof. Antilegend: (smiling) Good morning all, and let’s dive straight in! To start with, let’s think a little about what IP and IPR mean. We can first have a glance at the term ‘IPR’ in general and then move into more subject-specific substance and nuance, okay?
Students: —silence —
Prof. Antilegend: Okay, (breaking the silence) let me simplify. As we can see, there are ‘three’ distinct concepts thrown into this word “I-P-R” i.e. “Intellectual”, “property” and “rights”. But (excitedly), do you know what role these three words play in this subject? Is this a case of the whole being greater than the sum of its parts? Perhaps! Or perhaps the whole is altogether different from its parts?
Mindy: I think it is just copyright, patent, trademark, and stuff like that, right?
Akira: Yes. This is what I have heard and known so far. You can get a copyright for the original expression of an idea, a patent for the creation of a new and non-obvious product or process, a trademark over your company’s logo to distinguish yourself from your competitors, a geographical indication for a product with unique qualities that arise due to very specific geography, a trade secret for economically valuable information. Though I never really understood why they’re all pushed within one umbrella term “IPR” though.
Slato: I think … Essentially, IPR is more than copyright, patents, etc, I see it as a way we produce knowledge and regulate information, as a society. Though, as Akira said, the combination of the three words in ‘IPR’ does not seem to convey that.
Nya: Wait, irrespective of whether IPR is only about copyright, patent, or it is some way of governing knowledge (as Slato Says), what we (as a society) are ultimately trying to get through them is the question that should decide what IPR should be. The best (yet banal!) answer that I’ve heard (which is also true for all laws I guess?) is ‘welfare’. But then I wonder in this context – what is welfare, and whose welfare are we referring to – creators, public, society, industry, nations, world, unborn kids, law firms (sarcastically)?
Prof. Antilegend: Haha, nice responses! You all have touched on different aspects of the question from what/what-not IP to why IP and what after IP. Today, IP means and may include anything ranging from a comic book to a mobile chip, to a movie name, to software, to a famous chicken, or even one’s fame. One might even say that it includes more than what was envisaged back when it was first systematised in the mid-1800s.
Coming to responses: first, on Akira’s comment, yes, it’s difficult to completely cognize IP as an umbrella term. Sometimes, IP is seen to refer to significant intellectual creations, sometimes, IP is more of a seductive mirage that makes one assume all the concepts encapsulated within it are similar. However, if we look closely, we’d see that it confuses more than it clarifies. At the same time, Slato has touched upon an important question – is IP (merely) about individual rights, is it about innovation, or is it about a systemic pattern of knowledge production. This is a good question to ponder over. How and why we generate, validate, and regulate information, also affects our pattern of knowledge production.
Finally, to Nya – ‘Welfare’ is a multivalent term with myriad implications and is amply contextual. As are terms like ‘happiness’, ‘fairness’, and ‘justice’, all of which also get used in a similar context. What meaning do these terms have in the context of IP? Can they go hand in hand, or are they inherently pitted against each other when inspected closely? These are deeper questions and ones that we will eventually get into later in the course. For now, keep these questions in the back of your mind as we proceed. And let’s see what answers you come up with on the way.
Feus: Okay, now, wait for a second here. No difficult questions about knowledge systems, welfare, etc., here from me, but I simply don’t understand: if the range that IP covers are so broad- from an author’s book to the author’s fame, from a publisher’s logo to the printing machine parts and software, can everything be IP? And if everything is IP, can anything be IP? (raised eyebrows). Please help me understand what confusing-clarifying thing you just clarified, once again!
Prof. Antilegend: Indeed, focusing on the term “IP” instead of the individual components can confuse concepts! (thinking) To be clear about this confusion, let us spend the beginning of this course thinking through this term and all the implications that it inadvertently leads us to before we actually move on to the doctrinal concepts within this subject.
Instead of looking at IP as a whole, take the individual ‘IPs’, and see how they differ in both their function and purpose and thus how they are limited in what they can cover. For instance, copyright is given on the specific expression of an idea, for e.g., a poem on jungle animals, wherein jungle animals are the idea, and the poem is the expression; a patent is given on new, non-obvious & useful inventions, for e.g. the flying phone; trademark protects marks of traders to cease confusion among the consumers, let’s say, Lufu for lighters. Do you see any (dis)similarities? Looking at the individual concepts, can you see that not all IPs (as called) are “intellectual” or “property” in the literal sense, at least not in the way they are commonly understood? Even the “R” (rights) can come under some scrutiny there. Indeed, that will be the focus of our next few classes.
Feus: I get the clarity about confusion now and (slowly speaking while smiling) more than similarities, I see varieties and masala(s) around IP (- an Intellectual Pickle – murmured).
Nya: (in a serious tone) Though often ‘spicy’, IP does seem to have a common factor across the board i.e. creativity and innovation. However, I know that one can always argue for their uncreativity. But if nothing else, at least all of them look like they come from (y)our mind (or intelligence, to be precise). Hence, the umbrella term seems to make sense.
Pocrati: True, and one more common thing is that all IPs, in essence, are information, are they not? For e.g., copyright does not actually protect a particular physical copy of the book or its pdf file, rather, it protects what lies inside it.
Prof. Antilegend: Yes, you all are correct. But it must be construed carefully – not everything that (seems to?) involves creativity/innovation and has an informational nature, can be regarded as falling within IP’s scope. Indeed, most of it is quite outside of IP’s scope. Nonetheless, my current concern is not what ‘IP’ should (or should not) include. Rather, the current question (and concern!) is whether IP being used as an umbrella term can lead to misunderstandings owing to the conceptual difference in the subjects. It’s a question for you to ponder over, as we inspect and dissect these ideas.
Feus: So, “intellectual property” is not “intellectual” or “property”, and this umbrella term IP can usher in some subversive implications. You make it sound like the Illuminati is behind the IP system!
Prof Antilegend: Haha, maybe not quite the Illuminati, but did you know that the small group of 12 powerful company representatives were responsible for putting together the framework of what has become the global IP system? But ‘conspiracy theories’ are reserved for class 8, so see if you can stay interested till then (wink). (and if you feel like reading up in the meantime, maybe take a look at pages 114-118 here and generally around it)
But perhaps this is getting too up-in-the-air right now. Let’s try to ground this discussion a bit. What do you see when I say “I..P..R ?”
Slato: (enthusiastically) I simply relate it with someone’s mental creation, which they have recognized rights over. For e.g., creations like … (ruminating) Tagore’s Where the Mind is Without Fear, or The Numbers, by Radiohead.
Akira: Well, to be honest, (taking a pause to think) IPR mostly reminds me of how hard it is to upload TikTok videos to YouTube, because of either over-eager lawyers or how their magic code detects it and sends copyright notices! Very annoying! (anguished voice). But yes – IPR usually refers to that – the IP holder’s ability to stop others from making use of their works.
Sugastine: Now, this is getting intellectually uncomfortable for me. I mean – why stop others? What’s the use of a creation which cannot be enjoyed? I can’t imagine a poem that can’t be read and recited by others; a song that can’t be listened to by others? Why write such a poem in the first place? (in a sad and anguished voice). Ultimately, do you create to brag about its hidden existence, or to usher in its enjoyment or usefulness?
Feus: (hurriedly) It’s simple. People write because they want to. The bigger question is, who cares? Most poems are about some stupid flowers, hacky rivers, or boring failed love tales. (pauses). But if I did waste my time writing this stuff, I’d certainly expect someone to pay me for it!
Jentham: What exactly do you want a reward for? For wasting your time or for doing some unpleasurable activity? No one really asked you to waste your time creating anything. (pauses, thinking). Though I suppose if you were ‘wasting your time’ only because you thought you could get something for it, you wouldn’t consider it a waste of time anymore.
Slato: In either way, if ‘someone’ creates ‘something’ and the ‘something’ adds value to people’s lives, then shouldn’t that ‘someone’ deserve some reward, irrespective of whether that ‘someone’ hated doing it?
Nya: Wait … Thinking back to the point of ‘repeated stories’, even Mark Twain’s piece which first brought him international fame, “The Notorious Jumping Frog of Calaveras County”, was based on an ancient Greek tale. That’s just one example of course, but it seems clear that these ‘boring failed love tales’ or ‘banal stories’ are inspired by things and people happening in that author’s life, or material that they have consumed earlier… Therefore, for me, the question is – if they are relying on inspiration from others, ought they really be able to prevent others from enjoying that creation? They didn’t need permission to borrow from the public corpus or public domain. Why should others have to require their permission for their small addition to that corpus?
Prof. Antilegend: Of course. But also consider this: even if every ‘boring tale’ has been around for a long time, the very reason you know it is because somebody lived it, connected with it, somebody wrote a version of it, somebody modified that version, someone wanted to express their feelings and got inspired by that version, and so on. There are many reasons and purposes behind the creation, writing, or reciting of a poem.
Mindy: I don’t understand why this should even be a question. (irritated) Being a creator, I know how it feels when someone rips your work off without an iota of concern about your efforts. Recently, I launched my song where I composed the music and wrote the lyrics. It took me years of training, hard work, and efforts to reach this stage to be able to compose a song. Definitely, I will not like somebody copying it without my permission. Regardless of whether somebody thinks that my creation involves extant things (or things around me!, sarcastically), the years of practice, time, and other efforts to compose my own song, deserve something and I call this my ‘Right’, my ‘Intellectual Property Right’, to be precise.
Feus: Why? No faith in the free markets? Think no one will pay you unless you hide behind the strong arm of the law? (grinning sarcastically). I’m the best football player in school. Everyone tries to copy my style on the field, but it’s not them that the audience comes to cheer. (smug smile). If you are good enough to keep becoming better, then what’s your concern?
Slato: Well, your example may be an outlier, because copying complex human interactions and movements is a lot harder than copying objects or other inanimate expressions. That’s where IPR usually comes in, from what I can tell. Otherwise, why would anyone show the world their creation, if anyone can just copy it? Especially if it is expensive to create in the first place but easy to copy. But you’re right that there is some tension between free markets and IPR.. (thinking…).
Nya: Wait, it needs some more highlighting here. Saying that “I create, therefore, I own a property right on it” is like saying you will always have a right if you create something. This sounds like your ‘natural’ right to claim a property right on intellectual creation. (pause) But, this shouldn’t and doesn’t work in this way. First of all (the ‘shouldn’t’), I don’t understand how a reward for an intangible idea of creation necessarily translates to a property right? And secondly, (the ‘doesn’t’), if this was so, why are there limitations on which creations get IP protection? Should it be an alienable right? If it was really a natural right, shouldn’t it be given to all creations? I may agree to some extent that you have a ‘natural’ right to your creation, but that should just be limited to you ‘using’ that creation, and not having a property right on it. I guess that’s what ‘natural’ is, stopping others is utterly unnatural! About your question on ‘why would anyone show their creation’, there can be diverse reasons and various ways people can be made to show what they create.
Sugastine: (confused) This all sounds a bit bizarre to me, to be honest. Here’s a real-life example I’d like your thoughts on – my grandmother used to collect herbs and plants and make some mish-mash that she would give to people to treat them when they had malaria. She never did tell us ‘city dweller’ grandkids what exactly the combination was. When we asked her, she said it was taught to her by her mother who was taught by her mother, and so on. We don’t know who exactly came up with this idea of treatment, whether it was an individual, a group, or the community… So, it was both ‘exclusive’ through it being kept secret, and ‘shared/duplicated’ for probably decades or maybe longer. How does IP fit into any of this? Is she copying, or sharing? And surely none of you believe this is an isolated example.
Jentham: Yeah this is a point, I think, we should properly ponder upon. Like Grandma’s traditional technique, there are many medicinal techniques in the world such as Yorùbá medicine and Ayurveda. (suddenly and excitedly) In fact, in most countries in the world, I think more than 75-80 percent* use Traditional And Complementary Medicine. So, the point is …creator, user, copier, innovator… All these terms seem to be ill-fitting for what is so common in our country.
*Read page 45, WHO global report on traditional and complementary medicine 2019 (saying “T&CM is used by at least 80% (i.e. 170 countries) of the Member States across all WHO regions…) However, based on our research on this point, it is worth highlighting that “80 percent…” is an oft-cited claim in many studies involving this issue, though the source of the original study giving these numbers is unclear. This claim can be found in an article from 1983 and the recent WHO’s announcement about the Global Centre for Traditional Medicine in India. If our readers have any further information, it would be appreciated.
Akira: hmm… now… I wonder and ponder. I wonder, that, if a song that somebody learnt to compose in a ‘limited’ time can deserve protection via a property right, then shouldn’t the knowledge and skills of grandma and grandma’s grandma, which seem to have been passed on from generations and cured thousands of people deserve more IP protection than anything else? But at the same time, I also ponder whether the actual creator(s) of such treatment ever intended to have such so-called ‘protection’ or they just wanted to cure the disease.
Prof. Antilegend: Eh, these are very ritzy razored responses. But unfortunately, I don’t have a satisfactory response to your questions, because global norms for this haven’t been developed yet. You may ask “why so?”, it is because the subject that we are sieving through now – IPR, has not quite been constructed to cohere these “not-so-INDUSTRIALLY-innovative” aspects of the knowledge production system, other than to ensure they are excluded if they happen to coincide with the more ‘certified’ and industrially-innovative parts. The sad reality is that global IP norm making as well as most IP academic literature has mainly focused on the subject matter of creations that “coincidentally” are exported by the so-called industrial countries, and these tend to be covered by patents, copyrights, and trademarks. To the extent of wines and scotches, geographical indications have had quite some presence as well (Hi France!). But other components under this umbrella of IP, “coincidentally” more common in the not-so-rich countries, are ‘still being discussed’ for the last few decades, such as Traditional Knowledge and Traditional Cultural Expressions, Genetic Resources.
Jentham: (curiously) So, what should be done with these types of innovations in the light of the extant IP system? Are they less deserving of the current IP protection? Or should the current framework be revised to better recognise them? Or is it something in between – that they should be recognised, but ‘protection’ is not necessary to improve and encourage them? Or will the idea of innovation and creativity itself be limited and tailored to what the current system can cope with? From what I have understood, IP is just a proxy for innovation that is intended to ignite and appreciate intellects. So, shouldn’t we tailor it as per the innovations and not vice versa?
Prof. Antilegend: Hmm! (with a smile) Yes, we should (perhaps) start by de-romanticizing only certain types of innovations and creations, and figure out precisely what we are trying to achieve with this regulation of information and knowledge. Now, coming to your question, hmm… (pause) you have posed a contextually layered question(s) that cannot be done justice with a simple ‘Yes’ or ‘No’ response. And perhaps there isn’t just one answer to the question in any case! Hopefully, the discussions in the coming classes will help nudge you towards forming your own answers to these penetrating questions of yours. If that does not happen, then don’t worry, you will get new questions to understand your present question(s) better.
(smiling) Anyway, I can see that the class is slowly moving into the more jurisprudentially interesting questions – of whether labour is a reason to compensate a creator, whether compensation should be for a socially useful purpose; whether a creator should only be rewarded for intentionally creating something, or also rewarded for subconsciously simply re-arranging information from her life experiences; and of course, what exactly is IP “protection” protecting and what it cannot ‘protect’ with its current system!
I’ll leave you to soak in today’s questions and discussions, before we come back to the next set of classes where we’ll think more about “IPR” in general, before the rest of the course where we’ll dive into the actual law and doctrines. Your task for the next class – think about what ‘intelligence’, ‘property’, and ‘rights’ mean, and what rhetorical weight they bring to the table when we try to talk about IPR!
(*Sound of the steps of students leaving the class*)
