Swaraj Paul Barooah and Lokesh Vyas
Cross posted from Spicy IP: Part 1, Part 2
The IP Reveries series is an experimental ‘fun’ series set in an imaginary classroom where we are using a dialogue format to raise questions and discussions around IP that traditionally don’t find a place to get voiced either due to long standing assumptions, or due to being seen as ‘too trivial’ to discuss in more formal settings. The series is authored by Lokesh Vyas and myself in equal measure. For a general introduction to this IP Reveries series, please check the introduction post here.
Misunderstanding Rights 101!
In the first three classes, (1.) we analysed the term “IPR’ and perused its app(e)alling aspects; (2.) interrogated ‘intelligence’ of IPR and noticed how indefinite the term intelligence is; (3.) parsed the ‘P’ part of IPR and saw what problems it (re)produces. Continuing our reverie-ish interrogation, in this class, we will ruminate on the “R i.e. Right” in IPR to suss up some (non)sense around it and see if the so-called ‘IP rights’ are really righteous or some other rhetoric ruse. For the previous classes, go here, here (Session 2) and here.
Class 4.1: Ruminating on the “R – Rights” of IPR!
Prof. Antilegend: Hi, IP pals. Today, I have a story to tell you. While coming to this class, I met my old amigo Mx. Metaphor from Meta-verse University (“MU”) and discussed how the overlapping meaning of ‘right’ can confuse our understanding of what it is and what it does. Today, while ruminating on the “R i.e Right’ part of IPR, I wish to run some of those ideas in our discussion. So without further ado, let’s begin and start with a recap of previous classes and tell me what you learnt and then we’ll ride towards ‘R – Right’.
Pocrati: Sure. Class 1 taught me that the term IP is full of divergence, and can make us ignore whether the umbrella term IP ushers in (non)sense. Class 2 (Part one and two) made me see that even though “I” in IPR is a focal point, it has no actual legal load, but can sometimes just be another rhetorical ruse to romanticise ‘some’ to benefit ‘others’. Class 3 further made it explicit by helping me see the power of placing an anomalous term between ‘Intellectual ..&.. Rights’ and normalising it through some strong heuristic narratives.
Mindy: Yes. Overall, we learnt to unlearn our unquestioned learning by questioning their core. … but (curiously) do we really need to do this with ‘Right’? IP is a ‘Right’ and that sounds completely fine to me. What’s wrong with this ‘right’ now? Being born into this ‘social contract’ is the equivalent of clicking ‘I accept’ in terms of conditions on websites. You’re supposed to know the rules and you’re technically bound by them even if you have no idea what they are!
Prof. Antilegend: What’s wrong with this right? Hmm … (thinking) You all noticed a hazy glaze we get about some terms we use daily when we proceed without thinking about what they mean. The same goes with rights, they go as if they are never wrong and make you believe that they are always right in every sense therefore, cannot/should not be wronged. In case they are wronged, the rights holder goes running to the state to make right, this wronged right! In a way, rights consciously or subconsciously dominate our current understanding of permissibility and justness; give structure to the form of government-citizen relationships; shape the content of laws, and for some, justify the morality or ethics of actions. When we accept them, or as the case may be – when we accept claims that use the term rights in their name – we simultaneously, knowingly or not, validate a form of distribution of freedom, authority and resources.
Feus: (Confused) right-wrong … wronged right … what is this new binary bafflement, Prof.?
Nya: Okay … See… every right comes with some legal relationships e.g. your right to life is others’ duty not to kill you and this apparently seems fine as people are to live freely without fear of being harmed by others. But to me, the same seems a bit anomalous in the case of IP which does not come out of a natural setting as explained in previous classes – but rather it is more of a (socio?) economic policy centric law? So when we define IP as a ‘right’ without understanding or questioning what a right means, we are uncritically agreeing to a certain form of distribution of freedom, authority and/or resources!
Jentham: (continuing Nya’s idea) For e.g. take the ‘Free Speech – Copyright – Fair use’ relationship: when the focus is on ‘right’, we may just overlook that (as some would argue) free speech is to copyright, as copyright is to fair use. Here, both free speech and copyright are understood in terms of a ‘right’ but the relationship is of “Norm/Rule – Exception”. You have the right to free speech, but not to copy someone else’s texts because of copyright laws. A similar relationship underlies copyright and fair use – You can have a copyright over something but (for example) that doesn’t mean you can prevent a non-commercial, educational use of it. But since fair use is often narrated as an exception and not as a right, we may not give it the equal importance. Thus, an unquestioned acceptance of ‘Right’ creates a sense of naturalness of the relationship between IP holders and users. Also, if we peruse the language of ‘right’, it gives a sense of correctness/truth as if something is due to someone owing to her/his role or status also. Thus, using the term “right”, may not only rave a sense of righteousness but may also nurture (perhaps, indirectly) their natural law justification.
Prof. Antilegend: Nice points Nya, let’s use that as a jumping board and look more specifically into what a right is in the context of IP – let’s first outline questions that may arise if one were to dig a bit deeper on this rights business:
What constitutes a right, whether it has any underlying classifications if so, what are their implications, what exactly an ‘IP right’ is (is it even a right), who holds it (i.e. creator, funder, community, public?), what action, object etc. it relates to (i.e. invention, mark, movie etc.), why is it given (i.e. morality, law, custom etc.), how it can be affected by the right holder’s actions (i.e. inalienable, waivable).
But why do I pose them first?… because every right has an internal structure i.e. their form, which performs a certain function for the right holder. Therefore, when we keep these questions in mind and understand them, we’ll be able to better answer what an IP is and what it should be called. So, tell me what is IP right?
Slato: Better! But that’s simple – it’s a right of exclusion – an ability to control/influence the actions of others with respect to intellectual creation.
Akira: (sceptical face) To be honest, the term ‘IP right’ seems meaningless because IP is not a monolithic subject but a mélange of various subjects, and thus potentially a mélange of different rights. If we look at Slato’s answer, saying IPR is an exclusive right…
Slato: Sorry to interrupt, but.. “Exclusion”. Exclusion right, is what I said, not exclusive right. The right to exclude, being the focus. Not the right to be exclusive.
Akira: True.. Ok, saying IPR is an “exclusion” right is an oversimplification, is it not? In that sense, every right has an aspect of exclusion. For instance, the right to life allows the right holder to exclude anybody from interfering with their life and the right to free speech enables the holder to exclude an interferer with the right. So, I don’t see any seriousness with this ‘exclusion’ answer. I’d rather scrutinize it further and ask – exclude what? against whom? for how long? and for what purposes? in what situations?, and to what extent? All of these questions define what an IP Right i.e. copyright, patent, trademark Geographical Indication (GI), Traditional Knowledge (TK), etc. is
Nya: Correct! All these varieties of IP rights may vary in their purpose, substance, extent, and application While the patent right …. (interrupted)
Prof. Antilegend: Sorry to interrupt, Nya! Just one caution – Resist using the word ‘right’ to define what a patent right is, that will just bring circularity. But I think you’re on the ‘right’ track. Clearly understanding what area you’re attaching this word ‘rights’ to can bring more clarity on what it refers to.
Nya: Uh yes, yes, thanks. (Pause to think) A patent is a (1) time-specific (2) legal claim on a (3) qualified (novel, non-obvious) invention, given to the patent owner, to permit the (4) exclusion of certain types of acts with those inventions (5) by third parties. The reason the free-market is allowed to be distorted this way, is that this is given for the purpose of incentivising people to innovate. Here, it is worth noting that it is granted to whoever registers the invention in the patent office, and does not need to be the inventor, scientist, funder, etc. Whereas, a trademark is a set of claims, potentially perpetual, given to the registered proprietor of the mark to exclude others from utilising that mark in a commercial manner or manner that can confuse consumers. This is given for removing the consumer confusion from the market and minimising their transaction costs. Here, the registered person has to be the user of the mark.
Jentham: Yeah … I get it now. The ‘rights’ are different in these cases. Similarly, a copyright is a bundle of automatic time-limited claims given over the expression of an idea, to the author of that work. It authorises copyright holders to exclude third parties from doing certain acts such as copying, communicating, adapting, etc. Also, I guess it’s important to mention that each of these “IP rights”, in their own way comes with a set of limitations and exceptions where its applicability is understood to have hit a limit or boundary . These boundaries are given to ensure that these state granted ‘claims’ do not unduly restrict society’s scientific, cultural and artistic flourishing.
Sugastine: And what about GI and TK? Aren’t they more about preservation/maintenance of cultural/tradition and less about exclusion?
Prof. Antilegend: GIs, TKs, Biodiversity, unfortunately, these are all things that a lot of people like to talk about and few people like to ‘do’ about. Let’s keep the how, what, and why-do-so-few–care about these as topics to discuss in another class.
Akira: From this conversation,, I realise that an IP right is just another unquestioned trope as it is not a one right but includes varied and myriad other rights. So we see the problem in saying “IP” right as though there is a monolithic substance behind the term. (thinking) … now what about the term ‘right’ in itself…
Feus: Haha … a right – something which is not wrong and should not be wronged. Simple!
Prof. Antilegend: Yes yes. It’s simple yet complicated. But regardless, Feus’ fun-fanned comment is really fruitful in this context. (smiling). A right is not ‘wrong’ in a moral science class and is also not ‘left’ in a political class, but in law classes – it can be wrong, left, or … (abruptly stopped)
Oh, wait … let me give you a short break to understand how the ‘right’ as Akira asked is to be discussed differently from social or political science classes. Think over it a bit and then we’ll get to some more juicy discussions on this rights business. Ready for the break then?
Slato: Haha, yes yes. Thanks. I will be ‘right’ back (smirking).
(*students leaving the classroom*)
Class 4.2 Ruminating on the “R – Rights” of IPR!
Mindy: Hi Prof., To continue from where we left off – I think the ‘right’ that we are ruminating on is inescapably shaped (and sapped) by the socio-politico forces. Thus, its overlap with ‘wrongs’ and ‘lefts’ is obvious. But still, I don’t know what is and how to understand what a ‘right’ is?
Prof. Antilegend: Mmm … When you face such questions where you don’t have any definite answers or have no clue where to start with, simply say “it depends” and then ask “on what?”… (smiling) Let’s do it here – the answer to ‘what is a right’ … (pause to create interest) … depends upon whom you ask – a law person or a lay person? If you ask a law person, the answer would very likely be along the lines of – a legal entitlement over something which can be enforced through/against the state.
Now leave the law person alone, and ask a lay person what a right is – the answer would very likely be grounded in morality and seen as “something that is not Wrong” or “something we deserve”. Thus, as per a lay person, a legal right would be something that is “not wrong” and “deserving”.
Here lies the rub (empathetically) – if you ask further about ‘what is/isn’t wrong’ or ‘why we deserve something (especially as against others)’, a bundle of self-sanctified reasonings come in. At this point, you are likely to find a deadlock which needs an ideological aid (e.g. religion, rationality, culture, nationality, etc.) to unlock. Do you get what I mean?
(*utter silence of a few seconds*)
Nya: Not completely, Prof. Let me summarise once and correct me if I am ‘wrong’- a right (in the current context) is just a legal entitlement given to you against others, including the state and the reason the state gives it is – it was right to do so in some larger social/public interest. So this is essentially a ‘means’ to an end – a ‘proxy’, if you will. But in this discussion, this right (in law) and right (in morality/truth/fairness) may get mingled in a way that their separate meanings get clouded. This (mental) mixing of meanings may give rise to situations where even though a legal entitlement is supposed to be instrumental in reaching an end, it gets legitimacy regardless of its intended role, even when it is not leading towards that end, or worse, even when it is leading away from that end.
Mindy: I get it … perhaps (murmured) … so you are simply suggesting that ‘IP Right’ was created to advance some purpose and now it has become more important than the purpose. Okay … all good … all true… all agreed … (not at all understanding) when and how does that happen … care to contextualise?
Nya: Hm… If you read the International Copyright history and compare it with today, you can see that then ‘right’ both in a legal and moral sense has got new legality and morality. An old article, in the context of the ‘right’ of foreign authors in the American context, may clarify this:
“So long had free-booting in English literature been the general custom, that “selling honesty for interest,” had then ceased to be regarded as a moral wrong, and this literary pillage was even looked upon as the common inheritance of all who chose to avail themselves of it.”
Feus: Thanks for sending us to search for an 80+ years old article that’s still behind a paywall! I’m sure my paying for access to it is incentivising more bright authors out there! (sarcastically)
Akira: Perhaps that’s a good example of the proxy getting mixed up with the end goal! Also, seeing it from a different perspective, many religions, cultures, and communities have treated knowledge as sacred (sometimes using sacredness as a barrier!), creating many internal conflicts with the commodification of knowledge. Along those lines, ‘right’, ‘knowledge’, and ‘right over knowledge’ have been seen differently, and sometimes even conflictingly.
For instance, didn’t some proponents of Hinduism disassociate with the idea of an individual’s right on knowledge or knowledge as a property, while at the same time also maintaining that not everybody was free to enjoy knowledge in society? Similarly, in Islam, for many, the core method of transmitting knowledge was recitation, and ‘commodified knowledge’ has been the core of many contestations. Thus, regardless of specifics, to me, it seems clear that in such approaches to knowledge there was more about ‘knowledge governance’ and less about a ‘right’ as an individualistic legal claim.
Pocrati: Yeah, exactly. I’ve read this very interesting paper on Buddhism and IP too, where my takeaway was that while the Vinaya (rules) required respecting intellectual credits and appreciation, knowledge was not seen to be something which one could “own” or “possess” – this also indicated to me that ‘commodification’ of knowledge was not part of their knowledge governance systems. And the Confucian belief of “I transmit rather than create…” may indicate the social nature of knowledge production. Am I stretching it? I’m no scholar of these belief systems – just thinking aloud.
Slato: Actually, (thinking) could the same also be argued for the Judeo-Christian tradition where the knowledge that Moses received from Yahweh was freely transmitted to the people? Or is that more akin to ‘discoveries’ that even our current IP systems deem too crucial to allow commodification of? Likewise what about the New Testament which regarded knowledge as a gift from God (1 Corinthians 12:8)? or when Jesus urges his disciples, “Freely ye have received, freely give” (Matthew 10:8)? I’ve never thought of these lines in this context, there seem to be so many lines of thought to explore now. Now I want to go and see what I can find that contradicts everything I just thought of, and the examples you all have given too. I’m sure it’s there. (excitedly).
Nya: Hm … now I wonder how the concept of Dharma would engage with this right talk. (curiously) Because, one of the meanings of ‘Dharma’ is a duty, not following which is adharma which is wrong. Given this, shouldn’t creating and contributing to knowledge be one’s duty regardless of the consequences i.e. giving an individualistic claim on the contribution? If that premise is established, it (what we call an IPR today) would actually be an intellectual duty, not doing which can be an intellectual wrong. Oh, wait. … are we not indirectly and subconsciously wronging a right and righting a wrong and thus …(confused and fizzling out).
Prof. Antilegend: Haha, from an “intellectual right” to an “intellectual duty” to now an “intellectual wrong” … interesting! But (facing Nya), I don’t wish to walk into the “IP Dharma” terrain, though I do want you to notice how difficult a ‘Right’ talk is and how it can lead to an intellectual imbroglio owing to its convergence with so many other moral and ethical topics of our daily life. Anyways, good points by the class overall! It’s exciting to see you think beyond the box!
Coming back to IP, when I see the foundation of it – I see an exchange which ultimately shapes the right-duty ideas. Let’s take the patent which is founded on the ‘exchange’ between state and inventor, no sorry (coughs) … the registrant. The state will grant the ability to exclude others from using an invention, but the inventors will have to publicise their invention and how to make it, so society can build upon it. Thus, ‘disclosure’ is the underlying idea and a necessary criterion behind granting exclusion rights in the first place, regardless of how (not) seriously it is taken today by the patentees.
Keeping this in mind, rethink our discussion and understand that … (emphasising) if the purpose behind granting a patent is the mandatory disclosure by the patentee, should a patent even be considered a ‘right’. (emphasising) Because if it is conditional on you “actively fulfilling” a criterion, (and not just passively being eligible / not eligible), then it is arguable that a ‘duty’ to disclose is a pre-condition to the grant of any patent right’. So stars … (loudly and slowly) … why is the focus only on the latter (i.e. right) and not the former (i.e. duty)? And you can also analogise it with Nya’s Duty idea. While thinking over this after class today, you could also go through this article for a slightly different take on all of this.
Mindy: I don’t know why or whether it’s a duty, but regardless, if not a right, what is IP then?
Prof. Antilegend: A privilege … perhaps? An intellectual privilege granted to ‘some’ with the object of causing larger social benefit. Thus, as stated earlier, it has an instrumental role to play, and the moment it stops playing that role, it can and should be modified or adapted or even abolished as the case may be.
And just to be clear, I don’t say Intellectual Privilege because of some internal antagonism, both the history and the theory underlying this subject suggest so. In fact, the term ‘privilege’ was supposed to be used but said to have been deliberately avoided to conceal the negative connotations attached to the term.
Fritz Machlup and Edith Penrose wrote (page 16) in the context of French Debate: “... those who started to use the word property in connection with inventions had a very definite purpose in mind they wanted to substitute a word with a respectable connotation, ‘property’, for a word that had an unpleasant ring, ‘privilege’.”
While you think over that – let me also throw another set of ideas at you!
There are other theorists like Hohfeld who, instead of focusing on what a right is, provided a semiotic structure to understand what a right does for its holder. That is to say, he understood it through the terms of the legal relationships created rather than what a ‘right’ creates. Besides rights and privileges, he spoke of six other jural relatives namely duty, power, liability, immunity, disability, and “no-right” to define all the legal relationships.
Mindy: Then what?
Prof. Antilegend: Then simple … we are all connected … at least legally. Now (emphatically) understand these examples carefully – E.g. 1.) My right comes with a duty on you; 2.) My privilege to do something means I have no duty not to do it and you have no-right to it. So here – I lack a duty, and you lack a right-claim; 3.) my power means my ability to change the legal relationships (i.e.privileges or rights) of others. Here – I have power and no disability but you have liability; finally 4.) my immunity signifies the lack of your power over my legal relationship (i.e. you can’t my legal relations), here – I have no liability and you have a disability. Do you understand?
*silence and then groaning from the class.*
Haha, don’t worry, don’t worry. This is confusing for everybody, please read them again in your mind and picturise them with some examples and you will get it ‘right’ (smirking). Always remember, they all are interconnected and keep shifting here and there. So, don’t try to locate or bracket them in a singular space. As said (and set), IP is a bundle of rights, it can have a component of all types. But what it fundamentally is, is the question I want you to ask, answer and understand.
Jentham: But Prof, wait …regardless of what we call ‘IP’, it will not change the reality of it.
Prof. Antilegend: Eh, regardless of what we regard less (or more), the language does affect the way we praise or prod a concept. It not only particularises our understanding and clouds our judgments about it but also it carries the effects of those particular words/languages in the ages to come.
Akira: Okay … so this way, IPR has all the Hohfeldian elements a – 1.) ‘privilege’ to use IP, 2.) ‘right’ to stop others from using the IP, 2.) ‘immunity’ against others to alter your legal relations (e.g. somebody cannot just make you a licensor without your permission), and 4.) ‘power’ to license your property or give it on lease thus, changing your and others’ legal relationships.
Poracti: Interesting! Then …. what about the limitations and exceptions on IP like fair use, compulsory licensing, honest concurrent use etc.? Should they be treated as the ‘privilege’ of the public for which IP holders possess ‘no right’ e.g. education?
Prof. Antilegend: Maybe, why not! (thinking) … Intellectual Privilege and User Privilege … hm sounds like a better bracketing! This way, we may create clearer boundaries (b/w ‘Norm/Rule’ v. Exception) and bring a better balance. But that is for you to ponder over. I think you can see now that R of IPR goes either (or neither) way.
So stars, with all this yeasty yo-yoing of “I”, “P”, and “R”, it is upon you to decide what an IPR is – an Intellectually Produced Ruse (IPR), an Intellectual Property Privilege (IPP), or an Intellectual Property Right (IPR) or something else. Now you have a lot of ideas to discuss in your philosophy class, let’s RIP here. Haha … I just mean rest intellectual property here and discuss something else in the next class.
And now it’s homework time. This week, I want you to carefully cogitate on:
a) Intellectual property, 700 B.C. – A.D. 2000 by Carla A. Hesse for some historical perspectives;
b) Ayyangar Committee Report for some policy perspectives, and as an example of one state looking into how various other states have considered IP and knowledge governance; and
c)The Patent Controversy in the Nineteenth Century by Fritz Machlup and Edith Penrose, for the patent controversy in the 19th century (winks).
Then ask – How the governance of knowledge has changed over time, whether this is useful change, or we have just accepted it as an unchangeable change!
(*students leaving the class*)
