Industry Funding and Bias (II): Towards Transparency and a Plurality of Perspectives

In an earlier post, I noted that industry funding will, more often than not, carry the presumption of bias towards results that ultimately favour industry bottom-lines or priorities. Let me offer another example on industry funding and how it tends to slowly dry up when the dividends don’t yield.

During my stint at the National University of Juridical Sciences, Kolkata (NUJS), I was approached by a prominent policy advocate (working in-house with a leading global IP giant), keen on finding ways in which to engage with IP academia better. They had some funding but wanted to know how best to deploy it. What would a good “gap” be that they could invest in? I mentioned that given their stature as a leading MNC with a strong interest in stricter copyright norms/enforcement, they should stay away from norm setting or influencing Indian IP policy in any way through academia.

Rather, what they could do (which was more likely to elicit a buy in from institutions/academics) was to focus on building capacity through training/teaching methodology. In other words, they ought to invest in pedagogical techniques for law teachers in India and help hone their research/writing skills, but not get into the “content” of Indian IP law. Given the dearth of good quality IP faculty in the country (when compared with the West), this was a very pressing need; a great gap that needed filling!

Thus began a pioneering program that brought together a number of IP academics from around the country once a year to a premier law school in the country for an intensive 3 day training workshop. Focusing only on pedagogical techniques and research/writing skills. By most accounts, the workshops were a modest success, well attended by a number of diverse IP teachers and researchers from around the country.

However, I knew and I suspect many others knew that this would not last, given that the industrial giant in question was really not getting much out of this. While the in-house policy advocate that pushed this through might have seen a larger macro level benefit to the Indian IP ecosystem as a whole, more impatient industry insiders may have wondered: Why are we wasting this money, when there are no immediate returns? As expected, the MNC withdrew its funding after 3 years. But the advantage was that by this time, the Indian law school that hosted this had become quite proficient at the programme and had the wherewithal to continue it; not to mention the leadership of a visionary vice chancellor and a stellar IP faculty in charge. Naturally enough, these teacher training workshops continued, hosted and funded now by the premier law school, but sans the earlier industry funding.

Am sure there are countless other examples. But as pointed out in my earlier post, the bottom-line is this: while it is theoretically possible for industry gurus to fund truly “independent” research or pursue an agenda that is not linked to their immediate bottom-lines, this is more often the exception than the rule. And sooner or later, when the dividends don’t show up, the funding will dry up.

Does this mean we do away with industry funding altogether? Of course not! It would be a tad bit too naïve to wish away industry funding altogether. Indeed one needs to ask: even outside of industry, is there any truly objective funding body or institution or individual?

Reverse Bias?

In my limited personal experience, I’ve often seen that even within supposedly kosher funding spaces, donors often pursue their pet agendas through the institutions /researchers that they fund. The Global IP Congress conference that Prashant spoke about is an excellent example of perceived bias in the reverse direction. I was given to understand that one of the IP policy advocates at CIS (which jointly organized the IP Congress) had, at the behest of some of his activist friends, attempted to sabotage my invitation as a keynote speaker; his alleged grievance was that I don’t really speak the language of “access”, whatever that means! Thankfully his pettiness did not come to pass, as the others overruled him and I was able to participate in what I thought to be a very insightful conference.

But underlying his pompous pettiness lies the problem of polarity. That, given the sharply polarized positions on IP, it is well nigh impossible to articulate and advocate alternative perspectives without being attacked by both sides. A point I made in my email response to Daya Shanker. And one that finds more eloquent expression in this thoughtful piece by Prof Litman, who had in the context of the copyright wars, noted: (add link here)

“Like conventional wars, the copyright war has been intensely polarizing. The conflict has been protracted and venomous. The middle ground seems to have disappeared. Anyone who works or writes in the copyright field is either “one of us” or “one of them.” It seems to me that this us-versus-them mentality had some unfortunate effects on the sort of scholarship we all write. “

God knows we desperately need a diversity of views. And a plurality of perspectives. For there is no monopoly on the truth; the best we can do is to have as many versions of it floating around. Particularly in an area such as IP where there are no easy answers. And simplistic solutions cast in rigid black vs white boxes often tend to fail.

Our policy ecosystem must therefore be kept open, without letting it be hijacked by a handful of sharply divided stakeholders with their own agendas for how they wish to see the world and our place in it!

Conclusion: Some Suggestions

To conclude, one cannot wish away sponsored research, whether industry or otherwise. I guess “transparency” (identity of funder, terms of funding etc) and a culture of open critique/interrogation remain our greatest allies in this fight to ensure that research is as independent and objective, as far as possible. And on that note, here are some tentative suggestions for ensuring that academic output remains relatively free of bias:

1. The academic institution in question should solicit multiple donors for the same research project, such that no one donor/funder can dictate the nature of output and hijack the agenda. Even better if the said donors comprise diverse stake-holders such as industry, institutions, government etc. And best of all is when you can simply crowd fund from the public at large. But this is easier said than done.

Prashant mentions the OPPI funded conference at NLS, which is a great example of how a conference did not swing to the tune of any one funder, since it had funding from multiple donors (including the OPPI). Similarly, our Consilience conference earlier this year with NLS had donors from across a diversity of spectra; industry, civil society, NGO’s and academia.

2. The terms of funding and the nature of the funder (s) should be made very clear on a publicly accessible website (preferably on the university website). And any conference brochure or literature should prominently display the names of funder(s). Sadly, I’ve found that at some of these conferences hosted by academic institutions, the names of donors are never made explicit, even as judges and policy makers are invited to speak and participate.

One hopes that in the coming years, we ensure a healthy dose of transparency in all academia: industry interactions. That is the best we can hope for, if we are serious about ensuring that the music of mammon does not dictate the swing of scholarship. Importantly, one also hopes that the coming years with see a greater diversity of views and a plurality of perspectives on IP: where we’re all able to speak our minds without fear or favour: without being cabined, cribbed and confined to powerful IP camps and their pet positions.

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's 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 Prof. Basheer joined Anand 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. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

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