SpicyIP Review: “Perceptions of IP” by Roya Ghafele

SpicyIP wishes its readers a Safe, Happy and Prosperous Diwali!

Introduction
The joy, of seeing someone express a particular opinion in the right forum on an issue which one strongly feels about, in a manner better than one could have done, and in exactly the way one would have liked it, is something best experienced than expressed. This was precisely what I felt after reading Roya Ghafele’s “Perceptions of IP” (a report prepared under the aegis of the Intellectual Property Institute of the UK); and hence this disclaimer- I was in a bit of a problem because it was difficult to separate her views from mine, so I have tried my best to clearly demarcate the two so that I don’t end up committing the worst of sins possible on an IP forum- appropriating another’s ideas as one’s own.

The instinctive question that came to my mind after reading the report was “why wasn’t such an exercise undertaken earlier?”, because its very relevance makes one sit up and read every word of it. In a way this could be the first step, and a major one, towards evolving IP’s own, if I may borrow from classical quantum mechanics, Grand Unified Theory (GUT) rather Grand Unified IP Theory (GUIPT). May be the topic was awaiting the right author. Roya’s understanding of IP in all its avatars legal, social, economic, psychological, gender-specific and every other form indicates the sheer profundity of her grasp of the subject (SpicyIP congratulates Intellectual Property Institute, UK for having undertaken such a venture which is of utmost global relevance).

To capture so many actors in the “IP drama”, as she calls it, on so huge a canvass and yet flesh each of them out with such precision indicates the clarity of her concepts. The reason why I discuss her first rather than the report is because some of the best works in literature are more about the author than the authored. They give us a sneak peek into the most private of domains- the thought process of the author (unless of course one employs Derridian deconstruction methodology, which is almost ideal and hence near-impossible).

The Gist
If I am to capture the essence of her work in a nutshell, I hope it wouldn’t be far from the truth to say that identifying, acknowledging and putting stereotypes surrounding IP, particularly attributable to TRIPS, in proper perspective and the impact of these stereotypes on academic debates and policy-making form the heart and soul of the report. She also makes a disclaimer to the following effect- that the current initiative is neither “Pro IP” nor “Contra IP”, but “pro fact-based research” and against “unsubstantiated statements”. This, I think, off late has become necessary to distance oneself from accusations of intellectual baalism (sycophancy…..) or worse- working for a vested interest group or furthering the agenda of a particular lobby. Nothing could discredit and hurt honest efforts, such as this, more than slander.

Roya impliedly divides, and rightly so, the modern history of IP into two major periods- the one before TRIPS and the one Post-TRIPS (If one were to give it a Gregorian touch, it would be Anno Domini Nostri TRIPS). According to her, no other piece of international legislation in recent times has generated views/passions/emotions in such diametrically opposite spectra; on one hand TRIPS has been hailed for setting a la’Common Minimum Programme for nations on IP and on the other it has been loathed with unmatched passion & unbounded energy for being the most vicious, unabashed and ruthless symbol of globalisation & capitalism. She goes a step further to state that the reason why passions run high in pharma-centric and Traditional Knowledge-centric discussions (which SpicyIP is only too familiar with) is because of the way TRIPS and hence IP are perceived to be the latest additions in the “arsenal” of developed nations to subjugate developing nations.

She observes that WTO, and not WIPO, has become the hate figure since IP was pushed through the trade channel and not the innovation route. This was seen by renowned left-wing academics like Carlos Correa (of South Centre) and Nobel laureate Joseph Stiglitz as a move propelled by the fact that WTO’s Dispute Resolution mechanism has more teeth than WIPO, to force developing nations to get their acts together (This is in line with Stiglitz’s frequent columns against globalisation in The Hindu. For quite some time now, Paul Krugman too has been writing in the same column in a similar vein. Interestingly, the Nobel Prize committee too has recognised his efforts in understanding the impact of globalisation and his new trade theory).

As more and more things change, the more they remain the same. IP is the latest front where age old conflicts between the haves and have-nots, rich and poor, North and South, left-wing v. right wing, are being replicated with greater vigour. The imposition of an IP framework on all WTO members was interpreted as a kind of bargain in international trade and politics- Laws for IP protection in return for transfer or flow of technology and know-how from the developed world to the Third World. Accordingly, developing nations were mere passive receivers or “supplicant states” (this term was also frequently used in the Indo-US nuke deal debate). The fallout of this was the rise of the cliché in which developing nations are portrayed as hapless victims of ignorance caught in a web of rules and in a maze of laws.

To explain the far reaching consequences of such a trite idea, Roya looks for both outward and silent expressions.

Linguistics and IP Discourse
As is the case with every ideological debate, there are 3 parties- one on either sides of IP- the believers & non-believers and the third one being the fence-sitters, the agnostics. Naturally, the only way the sentiments of these parties are expressed explicitly is language and so Roya brings to fore a point which unfortunately has been an oft-used barb unfairly hurled at lawyers and the legal profession since time immemorial- language, semantics and their inseparability/indispensability to human transactions.

In fact, a major portion of the article is dedicated to making sense of the linguistics involved and understanding the course of IP discourse, reconciling rights jurisprudence with public interest, in other words, individualism and social engineering (speaking of linguistics, “social engineering” is used here in the sense of law being a tool of social control and does not refer to manipulative techniques used to extract otherwise inaccessible information). This emphasis on giving linguistics its due forms both the introduction and the conclusion of her article.

Using popular sentiments expressed about IP, Roya goes on to show how the pharmaceutical industry has borne the brunt of the truism of IP v. Public Health. IP and Public health are seen as two incongruous entities with the former being an imminent threat to the latter. This is partly also because each country views IP through the prism of its own worldview, experiences and interests; naturally IP doesn’t conjure images of exploitation in the West; however, in countries like India with its colonial past and historical baggage, IP is synonymous with imperialism so much so that even in popular culture, the same line is parroted.

Very accurately she says that this points to another important aspect of the debate- equating intellectual property with patents and patents with pharmaceutical industry i.e. equating the part with the whole (This is similar to arguments furthered by proponents in the early days of plea bargaining that law is all about dispute resolution forgetting that dispute resolution is but one of the mechanisms and objectives of law). The most legally relevant impact of such perception, in my opinion, is when national IP legislations are interpreted with pharmaceutical industry and public health as the sole or atleast the most important points of reference- the parallel imports debate is a case in point.

This is not to deny that there are instances where the microcosm mirrors the macrocosm, but it certainly doesn’t hold good in this case. Further, according to Roya, discussions on IP and Public health have been dominated rather “hijacked”, by NGOs and this may have led to a perversion of sorts thanks to the kind of language employed. NGOs and the media have borrowed liberally from terms used in the context of war (“global war for public health”) indicating comparisons which an average person would draw and images which such statements conjure in his mind’s eye (even I am guilty of this, for one of my posts was titled “Choking the Patients?”). According to her, the caricature of multinational drug corporations as “evil multinational drug syndicates” with cabalesque characteristics has contributed in distorting the nature and tone of such discussions where NGOs have used the fear of the “other” to best effect. This reminds one of the last US presidential elections.

The use of compulsory licenses as a sure-fire tool for browbeating corporations into reducing their prices is another ramification to which Roya draws attention (the Novartis case and Thai instance of compulsory licensing were touted as “victory of patients over patents”). This, according to her, is a socialistic reaction to a predominantly capitalist idea- IP. In this entire din, according to her, facts and sanity are lost for want of a louder voice. She points out that less than 5% of medicines of WHO’s essential drugs list are protected by patents; patent protection for HIV/AIDS exists in just over 20% of 53 African nations with no patents whatsoever in 13 countries.

By the same taken, Roya says that TK and its commoditization by TRIPS is another reason for its unpopularity and misconceptions. TK is such an emotive issue because it strikes at the heart of a society’s personality- its culture, its way of life, the value systems which it holds dear; consequently, one sees repeated demands for sui generic systems which treat TK in a manner unlike the way the West (or the “other side”) sees it. The premise in most such arguments is that TK is thoroughly incompatible with western proprietary jurisprudence and hence IP, since culture as a commodity is a concept which is supposedly alien to indigenous groups.

The next area where she diverts her attention and energies to is copyright chaos and counterfeiting. For a change, Roya notes, this debate presupposes IP more as a legal right than a business asset. In a reversal of roles, here it is the industry which calls for a “war against piracy”. Software patents and piracy, according to her, top the list when it comes to exaggerated and passionate arguments; candle light vigils, rallies and protest marches by open source movement are proof to this. That counterfeiting could have both negative and positive effects is something which quite a few commentators tend to forget. Roya also addresses, albeit briefly, the link between counterfeiting and terrorism.

The last two areas of research deal more with human rights, such as the First Amendment rights in the US, international human rights law and gender justice. Questions such as the effect of copyrights and related rights on freedom of expression, access to information and trade, are issues which too have contributed their mite to the ever growing myths surrounding IP. This is an interesting observation since morality in this case is the focal point in the context of a commercial right; in my opinion, this stands in stark contrast to politico-economic reasons slowly finding their way into public law such as criminal law where morality ought to come first.

The most obscure and definitely interesting part of this article was the attempted ligature between gender justice and IP jurisprudence, which was unorthodox by any standards. Roya points to the prevalence of a particular view that IP is a male bastion with a “hypermasculinized” system of values. The notion of the inventor according to certain groups smacks of male chauvinism since perceptions of technology and innovation between men and women fundamentally differ, which IP is grossly oblivious to. Both these areas, international human rights and gender justice in context of IP, are in my opinion extremely fertile grounds for research.

Conclusion
From all these examples, Roya draws a very pertinent conclusion. Beyond a certain point, it is polemic that dominates the debate rather than reason and both sides hold strongly to their opinions without keeping an open mind. In other words, for each side its view is the sole view- the ultimate truth and the entire truth. Ironically, the discussion turns into a fight for “monopoly” over truth, i.e. who is right rather than what is right.

The need of the hour in Roya’s opinion and mine is a calm atmosphere in which discussions are held and the possibility of a third way is explored. She recognizes the positive efforts undertaken again by NGOs such as MIHR, the Centre for Management of Intellectual Property in health Research and Development etc. In fact this is where one’s knowledge of IP asset management in the larger context is required, to put at rest looming misconceptions, to increase levels of IP awareness. As a kid, I remember having seen public awareness ads on GATT were run on good ol’ Doordarshan by the then government led by the late Shri P.V.Narasimha Rao. It is time that we had more of such programmes.

As is the case with any other branch of law, it must be understood that IP too is a cow which can be tied to any tree- constitution, taxation, international law, criminal law and the rest. A syncretic jurisprudence of IP must be the outcome of such efforts and in doing so it has to be borne that language is of the essence and though emotions cannot be done away with in entirety, reason should prevail. One cannot get too jingoistic about IP as an individual right given the ramifications on those around the individual. So a truncated view of IP should be abandoned and a middle path chosen.

In an earlier post, Mr.Basheer rightly discussed and quoted Buddha on the Golden Mean approach. I am reminded of Kalidasa who wrote on how a king ought to tax his subjects. He compared tax laws, in general any law, to a lioness holding her cubs between her teeth. She should hold the cubs tightly enough so that they don’t slip and also should be careful not to inflict pain. This is precisely what we need now. I realise that it is easy to wax eloquent on the need for such efforts; however, a beginning must be made and it has already been made by IPI and Roya Ghafele.