Innovation Overlaps in IP

Yale’s Innovation Law Beyond IP 2: Conference Highlights

Over the last weekend of March, Yale Law School hosted the second edition of its Innovation Law Beyond IP conference. The conference offers a refreshing new perspective on issues across the board arising out of the interplay between innovation and the law. While traditional discourse has focussed itself largely on how IP law regulates and distributes the benefits arising out of innovation, the conference dealt with broader concerns, turning into a platform for extremely interesting ideas. Since technology policy is the most obvious point of overlap (both in terms of positive as well as negative interference) between innovation and the law, many of the ideas presented revolved around disruptive influences in the tech industry. Over the course of this (rather long) post, I’ve chosen and summarised some of the claims made by participants at the conference that I’ve found particularly interesting, and linked these claims to the Indian context wherever possible. While abstracts for each presentation are freely available, I have been unable to access the papers themselves in many cases. This is because several presentations at the conference detail works in progress, or hitherto unpublished work.

Amy Kapczynski’s opening presentation lays down the theme of the event: “bringing the state back in”. She points out that current literature on knowledge production, on both the pro- and anti-IP sides of the debate, presupposes an image of the state that does not reflect ground realities. She further identifies this image of the state as an inflexible, inertial and corruptible “bureaucratic Leviathan” as being prevalent not just in debates over IP, but broader debates on innovation policy. In her attempt to break down this notion, she points us to specific examples of immediate, proactive policy interventions by governments in situations such as the recent FCC Net Neutrality rule, and more general industry trends prompted by governmental action such as the growth of the internet and the biotechnology industries on the back of intensive state funding. While the role of the (American) state as a driver of innovation has been addressed before, most notably in Mariana Mazzucato’s The Entrepreneurial State (see media coverage here and here), Kapczynski buttresses this claim through a case study, involving an intergovernmental network to combat the influenza virus that monitors outbreaks, designs and helps test vaccines each year – all without the IP carrot at the end of the stick. Thus, she argues that in certain situations, knowledge production without recourse to IP could be fostered by governments and the law. Kapczynski’s “open science” provides contextual reading to India’s own

Orly Lobel presents an analysis of the manner in which the rise of the platform economy has acted as a disruptive influence on the regulatory ecosystem. She charts the rise of the platform economy – marked by the rise of players such as Uber and Airbnb, which have turned hitherto unmarketed (and unmarketable) goods and services (such as the passenger seat of your car, for example) into market resources. The regulatory response to this phenomenon has been lukewarm at best, and downright hostile at worst. Around the world, regulators have found problems with the manner in which these players conduct business – be it in the form of taxation, consumer protection or employee welfare laws. Lobel asks if the regulations in the material economy (for lack of better phrasing) must necessarily carry over to the platform economy. Further, she asks whether the continued disruption of the regulatory ecosystem could be viewed as a positive rather than a negative attribute of the platform economy. This argument resonates especially well in this part of the world – Indian regulators have been slow to adapt their policies to the Ubers and the Airbnbs of the market. In fact, even when non-platform players such as Amazon attempted to modify their business practices to connect vendors to purchasers through their warehouse infrastructure, there was no clarity on tax liability for the “facilitator” role that Amazon was playing in the transaction between the buyer and the seller. A more pertinent (and still more chilling) example of the Indian government’s Luddite response to the platform economy is the ban of taxi aggregators following the Uber rape incident, currently under consideration. In this context, it’s extremely important for the government to keep itself open to new ways of thinking about the regulatory challenges brought forth by the rise of the platform economy.

Next, Guy Pessach identifies the paradoxical nature of “free” content in the information market. He points out that although the market for content is now inundated with free (as in gratis) products, this does not necessarily translate into greater freedom to the consumer. He argues that in fact, the reverse is true – the emergence of gratis content has led to greater curbs on consumer freedom through the prevalence of targeted advertising and privacy intrusions on these platforms. Content platforms that purport to transcend the IP narrative, through their alternative monetisation strategies, represent challenges that are essentially similar to more IP-centric means of content distribution, at least inasmuch as their interests are not fully aligned with consumer welfare. Thus, although free content or free culture ecosystems may represent giant leaps forward for the consumer, Pessach notes that they still represent certain detrimental effects such as the invasion of privacy and the creation of a market for eyeballs. To contextualise further, it’s true that IP-based incentive structures also suffer from privacy challenges – most notably in the operationalisation of price discrimination between consumers. For a general comment on the tension between IP and privacy interests, see Part III of Swaraj’s review of Amy Kapczynski’s The Cost of Price. Also see Spadika’s recent post on Gilead sweeping aside patient privacy concerns in its quest to maximise revenue from Sofosbuvir for a more specific example of this phenomenon.

The final presentation that I’ve selected for this roundup is just as interesting as the rest of the pieces – Michal Shur-Ofry’s incisive analysis of the important role errors and failure have to play in the landscape of innovation. She points out that entire sciences have been shaped by notable failures, and laments the bias for positive results that seems to pervade academia today.

Having noted the importance of disseminating negative results to the promotion of innovation, she identifies what she calls the “file-drawer effect” – the systemic self-suppression of errors and failures by scientists and researchers prompted by the incentive structures that dictate academic work in today’s world. She argues that innovation law must take up the duty of facilitating the dissemination of negative results, and posits a number of ways in which this could be achieved. Of these, the most promising method involves couching this discourse within the broader A2K movement, and utilising the means propounded by A2K activists, such as the creation of repositories for negative result publication, and the creation of an academic environment that embraces errors and failures rather than one that is ashamed of them.

All in all, these presentations represent a shift in the manner in which the law interacts with the innovation ecosystem. While IP law has, for a large part, enjoyed a monopoly over the law-innovation interplay, this is neither necessary nor desirable. It’s extremely interesting to watch innovation regulation move beyond IP, as evidenced by the kind of material on display at the conference. It would, however, be really nice if we could see some of this discourse find a place in scholarship and policy debates in India – ‘beyond IP’ solutions could find application to several uniquely Indian challenges, such as grass-root innovation protection and, as previously mentioned, open-source drug discovery.

For a complete list of the presentations made at the conference, see Written Description.

Balaji Subramanian

Balaji Subramanian

Balaji is a third year student at NALSAR, Hyderabad. He is currently an editor of the Indian Journal of Intellectual Property Law. He is fascinated by technology law and IP law, and is an active member of NALSAR's Technology Law Forum. When he isn't doing law school things, he wanders the country looking for quizzes to participate in. He can be emailed at [email protected]

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