LET me begin by introducing a puzzling paradox. The avowed aim of intellectual property (IP) regimes is to incentivize innovation and creativity; yet these regimes are shielded from innovative experimentation. If we trace back the history, we see a frame that has largely remained the same, with some minor modifications here and there. In other words, while we are otherwise happy to tout the virtues of innovative disruption, we are wholly resistant when it comes to intellectual property rights (IPR), the predominant legal frame for incentivizing innovation.

To me, this presents a great opportunity for India, a country that continues to resist the global IP script in some ways. A country that is perhaps neither developed nor developing, but characterized by a fair degree of technological proficiency in select sectors, requiring it to craft a distinct set of IP rules for itself.¹

But are we up to the task? Unfortunately, while our courts have made it clear on more than one occasion that the predominant IP paradigm where private IP rights trump all else will have to yield,² the government appears more conformist, seeking to placate the US and other super powers in the name of trade.³

If we are serious about this mission of recalibrating and perhaps even reconceptualizing IP, then we need to be a bit more revolutionary. More than embracing a ‘Make in India’ motto,⁴ we actually need to ‘Break in India’! First, we need to break the predominant property paradigm that continues to influence the intellectual property narrative. Second, we need to break the patent proxy prose and put IP in its contextual place.

Intellectual Property has, for the large part, been influenced by a rather strong property paradigm. This owes itself to extensive lobbying by powerful IP advocacy groups and a series of early court decisions that found it fit to reason by analogy and readily equated IP to real property.⁵ Yet, a close examination reveals that IP is very distinct from real property in several ways.

 

For a start, it is non-excludable and non-rivalrous, which means that my enjoyment of intellectual property does not in any way detract from your use of it. If I have a cake in my hand, then only I can have it; another person cannot sample it without subtracting in some way from my enjoyment of it. But with intellectual property, we are able to share as much as possible, without depleting each others’ use/possession. Much like a candle which can be used to light many other candles without in any way burning up its own fire!

Second, IP is beset with unclear boundaries. Those of us who have had the great fortune to read a patent document will know what a struggle it is to determine the precise perimeter of a patent claim. How does one provide advance notice to the public that ‘this is my terrain’, when the terrain itself is amorphous to begin with?⁶

To make matters worse, patent lawyers have become extremely proficient at hiding more than disclosing. As a Canadian court, in the context of Pfizer’s Viagra patent, tellingly remarked some years ago: ‘Why did the disclosure not simply state that [the] compound in Claim 7 was sildenafil? The patent plays "hide and seek" with the reader. The reader is expected to look for the "needle in the haystack", or "the tree in the forest". Remember, Claim 1 is for a range of compounds which includes 260 quintillion compounds.’⁷

 

Third, intellectual property, especially patents, are extremely uncertain. Some US scholars call it a probabilistic right,⁸ because of this uncertainty surrounding its validity: here today, gone tomorrow. More so in the Indian context, where our patent regime provides ample scope to invalidate the patent, not just on one but multiple occasions! At the pre-grant stage, at the post-grant stage (within one year of the patent grant), and if this too fails, one can mount an attack anytime during the life of a patent through revocation or invalidity proceedings in court (or before the IPAB, a specialized tribunal).⁹ So, patents are effectively highly probabilistic rights, much like a game of dice.¹⁰ And this brings me to another paradox: that while Indian law (for the most part) prohibits gambling and games of chance, it permits a proliferation of patents.¹¹

Then we have this curious term: ‘intellectual’ that prefaces the term property. But what is so intellectual about this? For those harbouring lofty notions in this regard, one look at the smug smile on the face of the macaque monkey will suffice – a click that spurred a raging dispute over who owns copyright in the simian selfie.¹² Interestingly, few, if any, disputed that the photo (clicked after an elaborate set-up devised by a human) was copy-rightable at all in the first place. For the threshold for copyright protection is fairly low and one has to simply ask: is this an ‘original’ expression, i.e. one that has not been copied from elsewere?¹³ On this low threshold, even a monkey selfie makes the cut! And therein lies the rub: what is so intellectual about all of this?

 

We need to rethink this troubling terminology. And accept that intellectual property is nothing more than a regulatory frame: where the state seeks to regulate a series of distinctive information, balancing a set of private rights against the larger public interest. In a forthcoming piece, I develop this argument further and advocate that we relabel ‘Intellectual Property Rights’ (IPR) as the ‘Regulation of Distinctive Information’ (RDI).

The next paradigm we need to probe is the ‘patent proxy’ one. What do I mean by this? As humans, we often reach for the lowest hanging fruit. Since it’s incredibly difficult to measure the rate and range of innovation in a country, we resort to an easy proxy, namely patents. All good, except that the nexus between patents and innovation is severely contested by the best of economists.¹⁴ One is yet to see convincing empirical evidence that patents definitively enhance the rate and range of innovation. Some say it’s intuitive or based on common sense, but as the wonderful Justice Binnie of the Canadian Supreme Court once quipped: ‘With respect, there seems to be as many versions of common sense as there are commentators.’¹⁵

 

The proxy business does not stop with patent counts, but extends to absurd extremes, amply demonstrated by an innovation index designed by the US Chamber of Commerce, which rated Togo above India, only because Togo signed up to more international intellectual property instruments than India.¹⁶

All of this leads one to ask: are we not vesting patents with a more absolutist appeal than it deserves? When it comes to innovation imperatives, we chant the mantra, ‘More patents mean more innovation.’ And when it comes to the ‘access’ issue, we profoundly protest, ‘Well, there are patents, so there must be an access issue.’ But, these are multifactorial issues; the sooner we contextualize IP as just one of the many variants in this complex ecosystem of innovation and access, the closer we come to an optimal innovation/IP policy.

In other words, IP must be put in its place – rather than assuming that a legal fix on this count will rid us of our innovation woes. A tendency that came to the fore in the formulation of a recent IP policy document by the government, which mandated that all of the knowledge in today’s knowledge economy be appropriated through formal IP.¹⁷ It went on to exhort Indians to ‘respect’ IP and strongly suggested that those that dared disrespect IP be penalized through criminal sanctions and the like. It also hinted at superimposing a formalistic IP frame on an unsuspecting ‘informal’ economy, which, as Barbara Harriss-White argues, constitutes more than 90% of our country. A shadow economy of sorts that is surprisingly rich in innovative merit, as demonstrated by the wonderful work done by the National Innovation Foundation.¹⁸ Unfortunately, rather than investigating the key drivers of creativity in this marginalized economy, we need to unleash a formalistic IP regime that has not worked too well for the formal sector.

 

Indeed, this insipid IP policy reflects our tireless tendency to put all eggs into the IP basket, without appreciating that a number of non-IP factors account more for innovation (or the lack of it). Look at our schools and colleges: engineered to kill the best of creativity in our kids. By demanding that they carry heaps of books on their backs and proudly parrot what the teacher teaches them. I run a programme for access to legal education called IDIA (Increasing Diversity by Increasing Access to Legal Education) and we have a student in class 11. While tutoring him in history, I chanced upon a section in his book titled the Dark Ages, one that neatly summarized the discussion into five points (presumably to earn five marks, one mark for each point).

 

The first point stated (and I kid you not): the ‘dark’ ages were dark. It then went on to state that there was no real science or advancement of knowledge or the arts during this time when compared with the earlier Greco-Roman era. I was horrified. I exposed him to the fact that the ‘dark ages’ were a misleading myth (much like the assumed virtues of intellectual property perhaps). During this alleged period of darkness, a great ‘innovative’ light shone in areas such as China, India and the Arab-Islamic world,¹⁹ parts of the world that were unfortunately ignored by Greco-Roman historians.

He was enthused and intellectually excited. A couple of months later, he sat for his exams and then got his results. Not surprisingly, his answer on the dark ages earned him one of the lowest marks in class. For he had critiqued the standard theory and written an answer well beyond the competence of his teacher. A fate that had befallen me two decades earlier when I studied the law of contracts in law school: a subject that I absolutely loved and dwelt upon in detail after myriad readings from our library. When I queried the teacher on why he had marked me low despite what I thought to be critically reflective answers, he answered with a perfunctory: but why did you take all this trouble? You should have simply written what I’d said in class.

As long as we have an educational ecosystem that reifies rote learning in this manner, there is not much that the law can do. For the best of legal norms to incentivize innovation will come to naught.

But worse than the Indian teacher is the Indian parent. Forever exhorting their children to cram CVs with more marks to help them land a secure job and perhaps, a secure wife. Entrepreneurship and risk taking are swear words in their lexicon.

 

How do we change these cultural constructs? Maximize our innate advantages as a country? Such as our wonderful diversity: both at the biological level (the most diverse gene pool in the world) and the environmental as well (what with the flourishing of so many religions, castes, communities, cultures, languages etc.).²⁰ A powerful potpourri of sorts that the best of innovation gurus say is sure to trigger crazy creativity. And yet we engage in group think, with the best of our institutions producing risk averse toppers and their comfortably numb followers.

Thanks to our constitutional jurisprudence, we have learnt to tolerate diversity.²¹ But mere tolerance for this virtue is not good enough: for the creative spirit to flourish, we have to embrace it in its entirety.

Or take our ability to handle chaos and uncertainty, more than amply evidenced on Indian roads, where we navigate tortuous traffic with ease. Yet another powerful ingredient for creativity. But, even as we deftly deal with the risk of the roads, we long for certainty in other aspects of our lives.

Or consider our sublime spiritual tradition. Mihaly Csikszentmihalyi, a psychologist of some repute, came up with the ‘Flow’ theory. Through a series of close studies and interviews, he found that a number of artists and scientists created best in a state of flow: often forgetting themselves and the world around them and becoming one with the object of their creation. A Zen like state, one might say, except that Zen drew from and was predated by dhyan, an Indian concept connoting a deeply meditative mindset.²² Something we had forgotten about till the West began peddling these Yoga packages back to us, Mcburger style. If only we had dipped into this rich ancient reservoir with vigour and married the old with the new, it would have made for a furious unleashing of creativity.

 

In the end, we need to ask: can India rescript the IP narrative? Or will it throw away this wonderful opportunity? If the rather dull and dreary IP policy is anything to go by, the future appears bleak. But the critique against this insipid policy has been so great, that one hopes that the next round will see more vibrancy.²³ Till then one can only hope that we ‘break’ more than we ‘make’. For hope is all we have left.

 

* The author wishes to thank Pankhuri Agarwal for her excellent assistance on this piece. This piece draws on the talks delivered at Jindal Global Law School and ILS Pune on this theme, though with significant modifications. While retaining a conversational format, it also provides for appropriate references through footnotes.

Footnotes:

1. Shamnad Basheer and Annalisa Primi, ‘The WIPO Development Agenda: Factoring in the "Technologically Proficient" Developing Countries’, in Jeremy de Beer (ed.), Implementing WIPO’s Development Agenda. 2009, pp. 100-17.

2. Novartis AG v. Union of India, (2013) 6 SCC 1; The Chancellors, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Anr., CS (OS) 2439/2012 (Delhi HC) (decided on 16 September 2016).

3. Shamnad Basheer, ‘Patents Over Patients’, The Indian Express, 14 March 2016, http://indianexpress.com/article/opinion/columns/patents-over-patients/ (last visited on 26 September 2016).

4. See, PM Launches ‘Make in India’ Global Initiative, PMINDIA, 24 September 2014, http://www.pmindia.gov.in/en/news_updates/pm-launches-make-in-india-global-initiative/ (last visited on 26 September 2016). See also, ‘About Us, Make in India’, http://www.makeinindia.com/about (last visited on 27 September 2016).

5. Frank H. Easterbook, ‘Intellectual Property is Still Property’, Harvard Journal of Law and Public Policy 13, 1990, pp. 108-118; Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405 (1908) (‘Patents are property, and entitled to the same rights and sanctions as other property.’).

6. James Bessen and Michael J. Meurer, ‘How Important is the Failure of Patent Notice?’, in Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk. 2008, pp. 147-64.

7. Pfizer Canada Inc. v. Novopharm Limited, [2012] 2 F.C.R. 69.

8 See Mark A. Lemley and Carl Shapiro, ‘Probabilistic Patents’, Journal of Economic Perspectives 19(2), 2005, pp. 75-98.

9. See, Shamnad Basheer et. al., Primer on Public Health and Intellectual Property Rights (IPR), prepared for the WHO Country Office, India (2014), http://spicyip.com/ wp-content/uploads/2014/08/Final-Report. pdf (last visited on 26 September 2016).

10. See, Lemley and Shapiro, supra note 8 (‘When a patent holder asserts its patent against an alleged infringer, the patent holder is rolling the dice. If the patent is found invalid, the property right will have evaporated… The risk that a patent will be declared invalid is substantial. Roughly half of all litigated patents are found to be invalid, including some of great commercial significance’).

11. See, Sumes Dewan and Ramandeep Kaur, ‘India’, in Julian Harris (ed.), Gaming Law: Jurisdictional Comparisons. 2012, pp. 141-154.

12. M. Masnick, PETA, Pretending it Can Represent a Photogenic, Selfie-Snapping Monkey in Indonesia, Has Appealed its Copyright Loss, Techdirt, 21 March 2016, https://www.techdirt.com/articles/20160320/23333233964/peta-pretending-it-can-represent-photogenic-selfie-snapping-monkey-indonesia-has-appealed-copyright-loss.shtml (last visited on 26 September 2016).

13. University of London Press v. University Tutorial, [1916] 2 Ch 601; Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

14. See M. Boldrin and D. Levine, ‘The Case Against Patents’, Working Paper 2012-035A, Research Division, Federal Reserve Bank of St. Louis Working Paper Series (2012), https://research.stlouisfed.org/wp/2012/2012-035.pdf (last visited on 26 September 2016).

15. Harvard College v. Canada (Commissioner of Patents), 2002 SCC 76.

16. Shamnad Basheer, ‘These Rancid Rankings’, The Indian Express, 10 February 2015, http://indianexpress.com/article/opinion/columns/these-rancid-rankings/ (last visited on 26 September 2016).

17. Shamnad Basheer, ‘India’s New Intellectual Property Policy: A Bare Act?’, Deccan Herald, 5 June 2016, http://www.deccan herald.com/content/550550/indias-intellectual-property-policy-bare.html (last visited on 26 September 2016); Shamnad Basheer, ‘An IP Policy With No Innovation’, The Hindu, 17 May 2016, http://www.thehindu. com/opinion/op-ed/intellectual-property-an-ip-policy-with-no-innovation/article 8607910.ece (last visited on 26 September 2016).

18. National Innovation Foundation-India, India Innovates (2013), http://nif.org.in/dwn_files/india-innovates-2013.pdf (last visited on 26 September 2016).

19. Arun Bala and Prasenjit Duara, ‘Introduction’, in The Bright Dark Ages: Comparative and Connective Perspectives, 2016, p. 1.

20. Rakesh Tamang and Kumaraswamy Thangaraj, ‘Genomic View on the Peopling of India’, Investigative Genetics 20(3), 2012, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3514343/ (last visited on 28 September 2016).

21. A number of cases from our courts make clear that overt discrimination based on caste, creed, culture etc. is frowned upon.

22. Shamnad Basheer, ‘The Wow of the Now: Of Flow, Creativity and IP’, SpicyIP, 26 September 2016, http://spicyip.com/2016/01/the-wow-of-the-now-of-flow-creativity-and-ip.html (last visited on 26 September 2016).

23. See supra note 17. See also K.M. Gopakumar, ‘Why New IPR Policy is Inadequate’, Economic and Political Weekly 51(21), 2016; Achal Prabhala and Sudhir Krishnaswamy, ‘Patently a Missed Opportunity’, The Hindu, 25 May 2016, http://www.thehindu.com/opinion/op-ed/national-intellectual-property-rights-policy-patently-a-missed-opportunity/article8641600.ece (last visited on 26 September 2016).