Copyright

STRETCHING IP: YOGA, SUKETU MEHTA’s OP-ED AND PROF SAMPAT’S RESPONSE


The controversy surrounding the Yoga guru, Bikram Choudhary and his copyrighting of “hot” yoga poses (perhaps a better term ought to be “sauna yoga”) has reared its ugly head yet again. Talk about ‘stretching” IP!!.

Oh well—if a patent can issue on a method of exercising a cat by making it chase a laser beam, what’s wrong with copyrighting a more holistic exercise regimen that does not involve anything as fancy as lasers—and more importantly, one that pertains to human beings.

What’s funny (or rather “troubling”) is that, in all this media frenzy, the Indian press continues to conflate the terms “patents” and “copyrights”. Most news reports are shocked at the “patenting” of yoga asanas—when Bikram’s claim to fame (or rather, “in-fame”) is really in trying to “copyright” it. Anyway, what began this new found interest in the monopolization of yoga may be Suketu Mehta’s op-ed in the NY times, titled “A Big Stretch”—something that was commented on by Aysha in her excellent (and provocative) post on religion and IP.

Prof Bhaven Sampat, whom I’d blogged about earlier, in connection with the creation of a very useful database of Indian patent applications, responded to Suketu’s piece and sent a copy to the NY Times—unfortunately, for reasons best known to them, they didn’t publish.

Bhaven is spot on in his critique—but I also think he is way too kind. After reading Suketu’s highly “stretchable” notion of trading Gleevec for yogic nirvana (maybe a future India—Swiss FTA should have this!!), and his rather implicit preference for the monopolization of knowledge along caste lines, my advise to Suketu would be along the lines of what was tendered by a towering Indian intellectual, Ramchandra Guha to Booker winner, Arundhati Roy in response to her piece on the Narmada dam: Please stick to fiction!!


In fact, Suketu’s very first paragraph reveals a deep ignorance for how copyrights operate. He states:

“I grew up watching my father stand on his head every morning. He was doing sirsasana, a yoga pose that accounts for his youthful looks well into his 60s. Now he might have to pay a royalty to an American patent holder if he teaches the secrets of his good health to others.”

Suketu—notwithstanding Bikram’s abominable attempt at monopolizing an ancient Indian knowledge form, his dubious copyright over yoga poses does not in any way prevent your dad from standing on his head or of teaching this to others. Of course, if he does this in a “sauna” environment (105 F or 45 C) and follows the exact same sequence of 26 odd steps that Bikram claims to have distilled out of the ancient scriptures, he may be in a little bit of copyright trouble in the US.

I say “may be”—because even under the most liberal IP standards that the US has now come to represent, you could still run a claim that yoga sequences are not copyrightable, since they are predominantly “functional”. And if the US is serious about “precedents” and respecting the classic “idea expression” dichotomy laid down in Baker vs Selden, you’re likely to succeed. The Patry Copyright Blog, by William Patry, Senior Copyright Counsel, Google Inc, elucidates this point quite well and also cites to 2 law review articles on this theme.

Suketu is right to be concerned about this rampant commercialization/monopolization of a holistic health regimen that has been in the public domain for several centuries—but deploying his poetic (or literary) license to “stretch” logic is nothing short of disrespect to an intelligent public that will soon tire of excessive emotional rhetoric. Anyway, this is Prof Sampat’s critique:

Re: “A Big Stretch” (Opinion, May 7)

The posturing in Suketu Mehta’s op-ed column on patenting yoga may have interfered with his quest for enlightenment. The author is correct that there has been a worldwide growth of patenting of knowledge and techniques that are not novel but rather have long been in the public domain. These include not only the yoga related patents identified by Mehta, but also, in the United States, patents on how to swing on a swing (U.S. Patent 6368227) and a crustless peanut butter and jelly sandwich (U.S. Patent 6004596).

However, none of these patents have had deleterious effects: the vast majority of patents are never enforced or litigated, and most are easy to invent around. Just as we can swing and make our lunches without fear of paying royalties, Mehta can continue practicing downward dog in peace. Mehta’s article does point to a more important and more general point: worldwide, patent offices lack the expertise, incentives, and resources to make determinations of whether an invention is really “new enough” to merit patent protection.

This can not only lead to the issuance of silly patents that don’t matter, like those discussed above, but also questionable patents on inventions that can have life-or-death consequences, like the cancer drug Mehta cites. But the implication of the article—that the problem in both cases is patenting per se—is misguided. Well—designed patent systems can simultaneously promote innovation and prevent encroachment on the public domain. (And patent-based regulation of knowledge is probably better for facilitating diffusion than the caste-based regulation of knowledge Mehta appears to favor.)

The salient concern is granting of low-quality patents: those that should not have been issued in light of what was already known. The solution is two-fold. First, policymakers worldwide need to think carefully about how high (or low) to set the bar for patentability. Second, they need to provide patent offices with better information about pre-existing knowledge and inventions, and the resources needed to evaluate this information.

Bhaven N. Sampat

New York, NY May 7, 2007.

The author is an assistant professor at the Mailman School of Public Health at Columbia University, and co-creator of a free searchable database of Indian patents and applications, india.bigpatents.org .

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

2 comments.

  1. Avatardavuloori

    It is very easy to say that some of the yoga techniques along with tools and accessories have been patented in USA. But the yoga does not require any tools and accessories other than a matress and ones own body. Most of the asanas are for the streching / compressing the different parts of the body, which makes the blood circulation better and remove the excess materials from there which mat hinder the regular / normal metabolism. Most of the yoga postures are only for the body only. Some postures along with meditation are for the mind. It all depends on how one can breath during the yogasanas. here are fast and slow methods of breathing or combination of the both. Mostly the meditation. In India we use these techniques more. All these postures of excersize depends on the day and the requrment of the person on that day. Hence we need not bother about somebody patenting them. It is left to that particular country to take a policy decision in this affires. When some of the countries have wested interest in gaining materialistic aspects these sort of anomolies do come. We Indians particulary Asians are not after materialistic aspects, Yogas and other meditation techniques are in general for the public good, if those countries realize it it well and good. Do not worry about such matatters. Do some scientific studies and show to the world that these techniques are good for the human body and mind for gainin good health.

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  2. AvatarJainie

    it’s no surprise Bhaven Sampat’s unrequested editorial piece was turned down by the NYTimes. He comes off as a jealous ****** who is just seeking a byline next to Suketu Mehta. Not someone I’d want at my cocktail party.

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