Copyright Innovation Patent

Of shadowboxing and strawmen


StrawmanRecently, an Indian Express Op-Ed that Shamnad and I had written discussed the US Chamber of Commerce’s (USCC) severely problematic GIPC report 2014. Around the same time, I had also written a post here on the same report, detailing more of its flaws. Interestingly enough, M. P. Pugatch, of the Pugatch Consilium (which authored the GIPC report), has put forth what seems to be a response, also as an Op-Ed in the Indian Express. Conveniently enough, this gives me a the perfect opportunity to show a practical example of my earlier post on “Taking IP on a spin” I’d like to make clear that, as always, we will gladly carry any further (coherent) responses to this piece – regardless of how much we may disagree with it. [Warning: Long post ahead]

It may well be true that this is not in fact a response to our own Op-Ed, but as I’ve seen only few others from India (including the IPA’s terrific responses) on this issue, and given that its on the same topic in the same paper that we chose to publish in, I am proceeding with some sort of confidence that he is responding to our Op-Ed and possibly my blog post on the issue. If indeed he is doing so, he’s done an “interesting” job with the response. While its ‘form’ indicates that he is responding to us (i.e., local critics), in substance, not a single ‘substantive’ point that we raised was addressed. In brief, what we had argued was that (a) the report was biased against non-developed countries because it did not take into account the different stages that a country goes through while ‘developing’, (b) that it used norms which were arbitrary at best and biased at worst, (c) that it relied on MNC’s narrative rather than data, and finally (d) that their invented version of “strong IP” was not in line with the purpose of IP.

What Pugatch says in his piece seems to be the following: (a) India needs to craft its IP system better to make the most of its talent and to attract more FDI, (b) Responses to the article have been either contemplative or critical, (c) “angry” local critics, the last bastions of a praise-laden Indian IP system, have rejected the GIPC altogether, arguing that there is nothing wrong with India’s IP environment, (d) that another index also marks India badly, (e) that local angry critics have made paradoxical arguments about breakthrough drugs, and finally (f) that critics should stop attacking the messenger and accept the message instead.

As can be seen, his piece had nothing to offer by way of substantive response to our Op-Ed. Of course, he has no obligation to respond to our points and giving him the (unlikely, but) full benefit of doubt, let’s assume he just so happened to write a piece on the same topic in the same column for his own reasons. It is still full of cleverly crafted rhetoric that misguides the lay-reader. Let’s look at it point by point.

A. The need to better craft India’s IP system: India certainly doesn’t have a perfect IP system and aside from just its IP system, India needs to do a lot to improve its innovative potential. However, there’s no reason to think that the artificial norms propagated by the GIPC report will provide a solution to this. There is in fact reason to think that the distorted story that the GIPC is putting forth will make this worse. For example, the simplest and silliest logical flaw I can point out about their index is that it would not only allow a country with a copyright term of over 100 years to receive  a greater than 100% score on the copyright indicator, their methodology (see p. 21-22) would also mean that if a country were to hypothetically allow permanent monopolies over copyrighted material, that country would not only top the whole index because of this one indicator, it would also get a score of infinity for itself!  This is the absurdity that arises when an index only looks to promote maximalist norms for no rhyme or reason. 

Edit: I forgot to address the point of FDI when I posted this. I would like to attract readers attention to the all time high FDI in the Indian Pharma sector currently. As C.H. Unni writes in the Mint, “The pharma sector attracted Rs.55,986 crore in FDI in the 13 years through December 2013—half of it in the past three years, according to data compiled by the department of industrial policy and promotion (DIPP). This made the sector the fifth biggest recipient of FDI since 2000, behind financial services, construction, telecom and information technology.”

B. Contemplative or critical responses: While most media outlets have reported the report’s results, a few others have done more than take its results at face value and have discovered its problematic methodology. To me, it seems the former group falls into what he’s referring to as ‘contemplative’, and that the latter group falls into what he’s referring to as ‘critical’. I’m not sure why any author would get confused why their writing may not be accepted at face value. But by creating this distinction, he paves the way for his next point where he tries to discredit those that are critical.

C. Angry local critics who have rejected GIPC – trying to maintain a failing rhetoric, to claim that there is nothing wrong with India’s IP system: Probably the clearest example of clever rhetorical writing is used in this point.  “Angry”, creates the false impression that critical responses are knee-jerk (ergo illogical) reactions without having to say it explicitly. This is followed by using a strawman argument that those who have a problem with the GIPC report think there is nothing wrong with the Indian IP system. The SpicyIP blog has been writing about ways of improving the Indian IP system for about 9 years now – so we clearly think it’s not a perfect one. And ‘despite’ this, Shamnad and I still think the GIPC report has little to no valuable input. Despite using dismissive rhetoric of the criticism, he fails to address any of the criticisms on substance.

In between, Pugatch also throws in a mention of an allegedly strong rhetorical narrative of India’s IP regime being unproblematic. I would love to see where this narrative has been hiding… since all I’ve been seeing (till very recently) is the narrative that India’s IP regime is nothing but trouble.

D. Another index also marks India badly: He points to the Global Innovation Index (GII) which marks India at rank 66, presumably as “proof” that GIPC is more accurate than we’d believe. He also says that India has dropped two ranks from 64th in the previous edition of the GII. Let’s uncover what he hasn’t mentioned though. The GII examines 142 countries. That puts India in the upper half of countries covered. As I’ve written earlier, the report also mentioned that: “While India ranked 66th out of the 142 countries, it ranked 3rd amongst Lower Middle Income countries, 1st amongst Central and Southern Asia, and 11th in overall efficiency rating. The two positions dropped in the overall rankings occurred due to Mexico making a leap of 16 spots to rank 63, and the introduction of Barbados which entered in at 47th rank.” It’s also worth noting that the GII is a significantly more holistic and far more nuanced “innovation” index. What does the picture say now?

E: Critics have made paradoxical arguments about breakthrough drugs: His argument seems to be that Glivec, Sutent and Nexavar are breakthrough drugs and therefore they can’t be termed as trivial innovation, and hence it is paradoxical to ask for compulsory licenses on them. This of course conflates three separate issues altogether! Indeed, if one were to believe paragraph 7 of his article, one would think that the ‘angry local critics’ he refers to are valiantly arguing for a compulsory license for a generic drug (which hasn’t received a patent because it is too trivial)! It’s true that these three do not have patent protection in India but I would advise a better reading and understanding of the three causes of action before one were to write about it and mix them up. For those interested, I have a paper on these three issues here.

F: Stop attacking the messenger: Finally, he ends the piece by saying that even if one disagrees with the report and its methodology, rather than focusing on the messenger, one should focus on the message – that “India, with its vast technological, technical and creative potential, should not try to divorce itself from the global IP system.” I find this one particularly amusing. After all, here, the messenger is the author the message – the message that India must abide by the messenger’s imaginary IP norms, otherwise the messenger will go around telling the world that India is a bad place for IP. Indeed, the USCC has gone about submitting this flawed report to the USTR and USITC hearings on India’s policies. Possibly a last ditch attempt at distancing himself from the (lack of) methodology and analysis used in the report, and shift focus back to India’s IP system – but wants us to focus on India’s IP system as per the perception created by his report.

No one is denying that India needs to improve its innovative capacity. What I, and others, are pointing out is that GIPC’s report is no useful indicator or measure of how that improvement could be brought about. Rather, it may retard the improvement, by causing damage to India’s knowledge ecosystem, costing lives of patients (in India and around the world) reliant on affordable medicines and more… all so that big industry lobbies can ensure that extra margin of profit. And that is the message this local critic would like to focus on.

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Swaraj Paul Barooah

Swaraj Paul Barooah

Follow @swarajpb Swaraj has a deep interest in IP, Innovation and Information policy, especially when they involve issues relating to Access to Knowledge, Innovation incentive mechanisms, Digital Freedoms, Open Access, Education, Health and Development. After his BA, LLB (hons) from Nalsar Univ of Law, Hyderabad, he went on to do his LLM from UC Berkeley in 2010. He is now pursuing his J.S.D. degree from UC Berkeley where he is focusing on Drug Innovation Policy and Access to Medicines. Aside from SpicyIP, he is also engaged as a consultant on various IP matters, and is a visiting faculty member at Nalsar Univ of Law. He is also in the process of starting up a New Delhi based "IP, Innovation & Information Policy" focused think-tank.

One comment.

  1. AvatarShashank Mangal

    Firstly, thanks Swaraj for this reply to our ‘foreign well-wishers’.

    My opposition is to the following expression;

    “India needs to craft its IP system better to make the most of its talent and to attract more FDI”

    At the outset, it is against the jurisprudence to be biased. It makes a legislation arbitrary which is also an existential threat posed by our revered constitutional principles. If IP laws are to be pro FDI, then it would mean that we are heading for a capitalist regime in a socialistic garb. I don’t support any such adventure for mere sake of a good ranking on certain index. Also, I am amazed by this courageous hypocrisy; When it is about responsibilities, then India is expected to behave as the most responsible of all and when it is about international clout/rights, India is branded as a 3rd world country still immature to be given responsibility..

    Reply

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