Creating ‘Informal’ IP Norms

In an earlier post, I touched on something called “Informal IP Norms”. I have attempted to flesh this out a bit more in this Mint editorial. Much more needs to be done in this regard– and this is just a tentative thought. As always, I greatly welcome your comments/insights/critiques on this theme.

(Image from here)

Creating ‘Informal’ IP Norms

Current intellectual property (IP) regimes are excessively formalistic in their orientation. Not too surprising, given that their creation and sustenance has largely been the preserve of lawyers trained in formal legal thought, with little input from other disciplines such as science, sociology or economics.

One watches with deep anguish as such regimes take on a life of their own, forgetting the simple yet hard truth that they are not ends unto themselves, but are mere means to help serve a greater end, i.e., fostering more innovation and creativity. In other words, patents are valuable to us only to the extent that they help engender more innovations for society.

Not only are IP rules excessively formalistic in their orientation, they also cater largely to what one might term as the “formal” economy. In other words, there is an assumption that innovation is the sole prerogative of a lone inventor who does her research within the closed walls of a formalistic entity that we call the “corporation”. Similarly, copyright norms are premised on the assumption that content creation is the preserve of artists and writers who tie up with big media giants and publishing houses.

A close look at the nature of our economy today, characterized by Web 2.0 and the vast social/ collaborative networks built on it leads one to seriously question the above assumptions.

Illustratively, the open-source movement has opened our eyes to the fact that an informal network of programmers can bring us highly innovative and free software products of a kind never thought possible under a proprietary model where coding was controlled by a single corporation and products placed on the market at monopoly prices.
Such collaborative/democratic/user innovation models are now being attempted in other technology areas such as biotechnology and pharmaceuticals. And they are bound to succeed, given that innovation is not a formal or linear process directed by a lone inventor, but a social process involving a multitude of different actors.

Indeed, India’s very own Council of Scientific and Industrial Research (CSIR) is now attempting to leverage an online collaborative model to come up with a new drug for tuberculosis (TB). That the gold standard for TB is a drug from the 1960s and that we haven’t had any major breakthroughs since then leads one to seriously question the current IP model around drug innovation; a model that brings us fewer innovative drugs each year and more me-too versions.

In the context of copyright law, the rise of user-generated content has thrown archaic copyright norms into serious question. Content is being created and posted on social forums such as Facebook and YouTube at a pace that might soon rival the speed of light. Similarly, content is shared between millions of users through several online platforms such as BitTorrent and LimeWire.

In the specific context of India, where almost 90% of the economy comprises the “informal sector”, the above truths hold even greater sway. The National Innovation Foundation, run out of IIM Ahmedabad, has compiled more than 50,000 innovations belonging to the rural “informal” poor and virtually demolished the assumption that innovation is the preserve of the rich and the “formal”. But merely identifying such innovative potential in India’s villages, often referred to by Mahatma Gandhi as the “real India”, is not good enough. One has to do more in terms of coming up with norms that help these poor communities leverage their creativity.

Newer IP regimes in India, such as the protection of geographical indications and plant varieties, throw the relevance of “informal communities” into sharper focus, dealing as they do with communities of farmers and artisans. Similarly, as India moves to devise norms for protecting and leveraging its ancient “traditional” and indigenous knowledge, it will again have to cater predominantly to informal communities that live on the fringes of the existing IP regime.

This regime, largely a Western heritage gifted to us by our colonial masters, and further entrenched with the help of an inequitable international instrument called TRIPS, is very “individualistic” in tone and focuses specifically on identifiable inventors and authors. This sits in sharp contrast with the “community” focus in India, where things like traditional medicinal knowledge and folklore have no clearly identifiable authors or inventors, but have been preserved by indigenous communities over hundreds of years.

Let me end this note by highlighting a paradox that characterizes IP regimes. Since their inception, most such regimes have been fairly static in their orientation, and have failed to reflect any “innovation” and “creativity”, the very same values sought to be encouraged by such regimes.

India has demonstrated its potential for innovative IP norms by articulating section 3(d) in its patent regime, a section that helps balance pharmaceutical patent protection with the need to preserve access. Given the importance of our informal economy, can we take this opportunity to innovate within this space as well by conceptualizing a set of “informal” IP norms?

Tags: ,

About The Author

2 thoughts on “Creating ‘Informal’ IP Norms”

  1. @Shamnad
    I very much welcome your thinking imaginatively about current global IP regimes. I’ve tried to understand the relationship between the informal economy and IP for quite some time myself, and especially the detrimental effects that IP regimes can have on innovation and free speech, especially given the problems of corporatisation and of free market economics (driven by the Invisible Hand of the profit motive) often encountering market failures.

    While I haven’t read the above article carefully (sorry, lack of time), I’d quickly like to ask one question, and make one comment.

    What are your views on trade agreements (bwo the WTO, primarily) and the anti-development agenda that is sometimes seen to be prevalent in WIPO, and the effect that has on creative solutions like s.3(d).

    I don’t think you go far enough in questioning IP and its role in innovation, especially given the lack of good studies on these issues. There’s an article written by Stephen Breyer (now a SCOTUS judge) in 1970 in which he points out that the U.S. copyright regime is based more on fear than fact. Fear of what would happen if copyright were not to exist, rather than any proven link between the currents modes of control over use and distribution of works and encouragement of their production, is what keeps copyright law in the statute books. This requires at least two forms of questioning: 1) A general question about links between IP and innovation and access to knowledge and culture; 2) Questioning of Western theories of cultural and knowledge production, which often do not accord with traditional policies and practices of the South Asian region.

    But still, I’m quite glad that you are also thinking along some of these lines at least.

    Comment #2, which just occurred to me:
    Even within formal economies, like the fashion industry for instance (where the top is highly formalized, and the bottom is semi-formal and informal — like most other industries), IP regimes do not work as expected. So, negative IP spaces (which in formal economies too) deserve greater thought.

    Anon. Cow.

  2. Dear AC,

    As always, thanks for your thoughtful comments. You’re right in raising the issue of WTO and TRIPS compliance issues, even as we go about creatively amending our regime or inserting new norms to suit the informal economy. I personally view TRIPS as an immensely flexible instrument i..e member states can get away with a lot, if they creatively craft their regimes. Illustratively, if I peg my inventive step standard really high (which is what section 3.d seems to do), it is difficult for another country to haul me up before a WTO panel, as TRIPS does not define “inventive step” nor lay down any criterion for determining the import of this term.

    You’re right about negative spaces–and if I’m not mistaken, I did run an earlier post on an article that stressed on this paradox in IP.

Leave a Comment

Scroll to Top