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IP Reveries: Class 2 (Part 2): Interrogating the I – ‘Intelligence’ in IPR


The IP Reveries series is an experimental ‘fun’ series set in an imaginary classroom where we are using a dialogue format to raise questions and discussions around IP that traditionally don’t find a place to get voiced either due to long standing assumptions, or due to being seen as ‘too trivial’ to discuss in more formal settings. The series is authored by Lokesh Vyas and myself in equal measure. For an introduction to this new IP Reveries series, please check the introduction post here.
Class 1 is available here.
Class 2 Part 1 is available here. This post continues after the ‘break’ given in Class 2 Part 1. We’ve taken a bit of liberty to extend the discussions a bit more than the length of our usual posts to fit in the varied strings of thought we wanted to mention. Having said that, we will try to make this longer form the exception rather than the norm, going forward. Now, on to Prof Antilegend and class!

Comic strip from XKCD demonstrating how varied the inner monologues are of people from different fields of study.

Lawyers: I wonder if this comic strip is copyright protected? XKCD comic strip from here. XKCD, as always, providing amazing food for thought!

Class 2 – Interrogating the I – ‘Intelligence’ in IPR (Part II)

Post-Break

(Students coming after the break with a paper in hand) – see (/attend) the pre-break session here.

Jentham: Thanks for the break, and for the interesting one-pager on Invisibilised Inventors and Hidden Geniuses. I didn’t realise how deep-rooted our ignorance could be. It appears that our unfortunate reality is that we just don’t do enough to avoid the void… What about the structure of all of this? Isn’t it that our ‘intelligent’ invention will need to fit into some formal pigeonholes to receive protection from the law? The law must be clear cut, or there will be (even more) chaos. 

Prof. Antilegend: Very true, Jentham! I find it useful to start thinking about these pigeonholes, by first asking – who is usually the ‘pigeon’ in question? That is to say – who is an inventor? The way it is discussed these days- we (still) picture an individual inventor, burning the midnight oil, working towards a well-deserved eureka (myth?) moment! But in reality, it is not always a sole sagacious soul who works in silos and makes great leaps of technology in one fell swoop. Instead, it often happens through large collaborative efforts, and through incremental changes. Especially in today’s world, it is often dozens of scientists or researchers as a team – feeding off and into each other, rather than the sole genius working on their own… Okay, now just hold that idea in your mind, and let’s wade into the terrain of “pigeonholes” or you may call them filters or proxies or policy levers. Do you know why they are needed? Any guesses?

Mindy: Hmm. Maybe … to filter out more intelligent products? 

Prof. Antilegend: Haha, yes, but isn’t that too literal about ‘filters’? There is something more to it. Since anything can be intelligence, we have to know which ‘intelligence’ we deem protection-worthy, and here come these filters to help the state identify that. Otherwise, ‘intelligence’ itself is just a rhetorical tool with no real substitute in law. The basic idea is to put in place filters that recognize innovations that deserve encouragement. 

Pocrati: Encouraging certain innovations by giving them the power to block other inventions on the marketplace….(puzzled face)… Isn’t this rather roundabout? Why doesn’t the government just fund inventors, for inventions it thinks are desirable?

Prof Antilegend: Oh dear Pocrati. We should be thankful that isn’t the case! After all, our country only allocates 0.7% of its GDP towards R&D! Which is less than half of what middle income countries around the world are spending (1.46%). But regardless of situational numbers, there is a good explanation for the presence of these filters. As Demsetz pointed out back in the 1960s (see pages 974-975 here), it is much more efficient to allow decentralised decision-making for determining what society sees as desirable. Not only would there be a risk of a centralised process getting the answers wrong, it would also be an extremely expensive affair to keep trying to find out what inventions the government should fund, and which it shouldn’t. Instead, a decentralised decision making process takes place through the marketplace, where society can express their preferences by their purchasing decisions, and third party innovators can spend their own money on determining the risks associated with pursuing a certain path of innovation, over another. Plus, the process of letting a market place decide, doesn’t exclude the government from also funding innovations it thinks are desirable! (whether it does or not though, is a different question).

Pocrati: But Prof! That tilts the scales towards innovations that rich people want, since they have more ability to ‘express their preferences’ on the marketplace.

Mindy: This is starting to go over my head a bit now…

Prof Antilegend: Pocrati (smiling) – you’ve jumped straight from the basics to the most difficult questions! Mindy’s right. Let’s go step by step, but I assure you, we will spend time in future classes discussing this penetrating observation you’ve made! So – coming back to the filters. They’re used to reward inventors/creators for fulfilling a certain standard of creation, as well as to give them a mechanism to make back their investments. What are they? Every IP has its peculiar version, such as the filter of originality (copyright), the filter of non-obviousness (patents), the filter of distinctiveness (trademark), etc. Once that period of protection expires, the details of that creation are open to the general public to make and remake for themselves as well. Here, do note though, this is a generalised explanation – the theory behind trademark protection, for example, is quite different from the theory behind patent protection – even though they are both called IP! 

Jentham: So, if I go to the patent office and say that I created a cough syrup by mixing honey and hot water, I will get a nice “Nay” (laughing) and not a patent because my creation lacks novelty, and non-obviousness. right?

Akira: Hmm. Maybe! … but frankly, to me, this seems both ‘vague’ and ‘precise; in equal measure! Because we all know that lawyers can be both, as and when required! They are even known for playing ‘hide and seek’ with these pigeonholes. Indeed, some papers I’ve read say that sometimes the lawyer may even be more important than the invention when it comes to the question of whether protection will be granted or not! Thus, almost anything can be adjusted within these filters, you just need to make them look ‘protectable’.

Feus: Intelligence is once again subjective! Praise be to lawyers fighting against the hegemony of the system! (sarcastically)

Akira: (confused, then annoyed, then ignores and moves on) Wait… wait…(articulating) now if I rethink IPs (especially patents?), they appear more as ​​probabilistic rights, much like a game of dice, you float your claim(s) fobbing off the (respective) filters, and then … wait to see how the dice lands. So maybe regardless of what we conceptualise IP as, it’s ultimately up to how well the lawyers can fit our inventions into those filters, which can further pave a way for what creations are celebrated. 

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Prof. Antilegend: So, IPR can also be ‘Intellectual Probabilistic Rights’ …hmm? Maybe! But this discussion is for a future class. So, wield your vigour till then (smiling). For now, I agree that these filters don’t always do the job they’re meant to do unless lawyers make (fake?) them do that. hmm…(thinking) Do you know the Great Pyramids? Yes? Apparently, they aren’t great enough! Look at “Burial structures for the interment of human remains and significant memorabilia” patented in the US in 2004! It appears that 5000 years since the originals were enough time to have forgotten them! Indeed, the world is full of ‘obvious’ and ‘non-novel’ ‘inventions’ that have managed to get IP protection. However, let’s be careful not to throw the baby out with the bathwater. Frivolous or obvious creations are perhaps merely areas where the enforcement of filters can be improved (haha – one can hope, right?). 

Mindy: Actually … I am more curious: does it affect the way IP law generally functions? Regardless of how these filters are handled (or hemmed) by the lawyers, how do we surely know that these filters (the ones decided by the states) are the ones which can definitely help us find the significance/worthiness of these creations? 

Feus: (taunting voice) Oh, wait let’s come back to the real world here. It’s “significantly” simple. If you are rich, have money, go ahead, pay expensive lawyers and claim worthiness, and get protection. Right?

Slato: Well, Feus… the dominance of the ‘rich getting richer’, however deeply entrenched it may be, isn’t a tangent we want to go down right now! I’m intrigued by Mindy’s point of the (in)fidelity of filters though, (emphasising) are they also inherently problematic and impossible to perfectly apply? For instance, how do we know the true and original creator of something with certitude? How can we be sure that a novelty-claiming invention is actually novel? Additionally, creations like the wheel, air coolers, printing press, and gunpowder, have been in existence for centuries, but have their modern counterparts with state-granted monopolies, are filters distinguishing new from old?

Prof. Antilegend: Piquing query, Slato. But remember, regardless of their fallibility/infidelity, these filters are mere measurements of desired changes. Thus, these modern avatars are protected for their modern modifications and not for their original nature. And this is what an IPR is claimed for – a modification or value addition to the existing innovations and creation, thus, benefitting society. We may have had the origins of current inventions premised on inventions from the past, of course. But as expected, we are to get better as we grow and time passes. And we have (presumably?) gotten better off with modifications in the previous inventions. Do you think the hourglass, Henlein’s first 15th-century watch, and the latest fruit company’s smartwatch, all have the same utility and add the same value? Definitely not! 

Nya: Yes I get it. But one observation cum clarification here, even the possibility of having these ‘desired changes’ is due to us being able to stand on the shoulders of giants (or surviving in their shadows? – whispered), instead of having to reinvent the wheel every time. And every time a new one climbs the shoulders, the giant gets larger. Or as Isaac Newton said in his letter to Robert Hooke – “If I have seen further it is by standing on the shoulders of Giants”. So amigos, let’s just accept that newness and novelty are often the more visible result of inappreciable iterative innovations! We are mere tomatoes in Nozick’s ocean! (smirking)

Feus: Nose-sick … ocean… (grinning) I think Nya has finally lost it. 

Pocrati: No, you missed the reference. Perhaps intentionally. (scowling) This is about Robert Nozick’s response to a feint justification given by people who contribute in the form of a minor modification to what is actually a large existing body of knowledge, as formed over many years, and then claim that they should receive the benefit of that “invention”! The problem is not that they think they deserve ‘something’. For sure, they do. (emphasising) It is that they are given ‘enclosure rights’ over much more than the value addition they are contributing! Why should they be granted state-backed privileges just because they were given tools (knowledge) that others were denied, and then able to make something with it? 

For instance, Pharma companies often claim (and often get!) new patents on old inventions by making minor modifications to existing patented drugs (evergreening); academic publishers, paying little if any royalty to researchers/academics, charge heavy subscriptions fees from users, causing lessened participation and knowledge production. Some copyright owners like Disney (dis)like it so much that they (in)famously and successfully lobbied to change the copyright term from 56 years to 75 years to 95 years. 

Prof. Antilegend: Yeah, good points, Pocrati and Nya. For context, for Feus and others who may not know what Nozick actually noted, here it is: “if I own a can of tomato juice and spill it in the sea […] do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?”. The answer is obvious, but the problem lies in the lionisation of (‘I’) labour which is claimed to have been mixed by a coveted creator (sarcastically). Ideally, it should only (emphasising) be limited to the added value (if any?), provided that it doesn’t cause any other value degradation in the overall system, which also extends to indirectly inculcating internal censorship in users or the potential future creators.

Slato: In fact, I also wonder whether post the pouring, the ocean would remain the same for others to enjoy. (imagine oil spills, if tomato juice seems inconsequential). Stretching this analogy back to the real world, what happens when allowing the cordoning off of one person’s ‘contributions’ inadvertently brings within the private enclosure other (and sometimes more fundamental) aspects of society, like health and education?

Prof. Antilegend: Haha, here, Nozik’s nefarious tomatoes have havoced a hypothetical hysteria, but our reality is less ravaging in this regard, (hopefully!). Cutting the story short, it is certainly a relevant question to consider – whether important social aspects such as health and education should be compromised as part of a trade-off to reward someone else for something else. But mind it, in a society, things don’t operate in silos. Everything comes with a cost, therefore, the best strategy is to keep this cost minimum and only whenever needed, as Macaulay muttered

Mindy: Indeed, the cost is to be curtailed, but how? E.g. in the past, enjoyment of music was free in many parts of the world where everybody could participate and create. Our history is replete with such examples – for some copying used to be the primary method of learning as well as attaining mastery, as well as showing respect, such as in Indian classical music. But now, even using a few seconds of music is being impeached as infringement by copyright owners and can attract punishments including jail. 

Jentham: Well, Mindy, While I get what you mean, it is a common misconception/romanticization that knowledge was free earlier. While there was perhaps a more ‘community’ approach to the usage of knowledge, not everybody was free to create or participate or own. As (un?)known, such cultural participation was limited to those who were then privileged by their caste, class, gender, etc. Let’s not forget our ‘invisibilised inventors’ already! Hence, I kind of agree (confused look) with both of you, but still, doubt the sanity of the system in general. Since we don’t really know where our intelligence starts, comes from, and how it operates, it becomes difficult to locate the beginning and the ending point of creation. Take a simple example of the songs that we claim to be of our favourite singers. They might not originally stem from a singular intelligence and could very likely have been taken from somebody else, consciously or unconsciously. But perhaps it, in its current form, would not be in existence at all, if it had not filtered through this particular singer’s consciousness. Thus, the fidelity of the IP filers is bound to get faltered.

Mindy: That also reminds me of this hilarious skit called 4 chord song theory! where … (interrupted

Nya: Sorry Mindy, to interrupt. But Jentham’s response demands some elaboration. Remember! Things that you have absolutely no control over – and are in fact at the mercy of – such as the time and spaces when you’re alive, the social status, caste, sex, gender, class, etc. are also some crucial factors that help you become, or perhaps we should say, ‘recognized’ as original in the world – IP or otherwise. Additionally, there are myriad reasons behind liking the song you like the most – your story, socialisation, the capability to listen to that song, etc. (deliberating) Have you read about Hollywood’s cultural hegemony and cultural imperialism which, whether intentional or inadvertent, has stealthily slipped contents into our minds? Although for the sake of brevity (and my sanity), it may be better to save any discussions around that for sociology or political science class! 

Jentham: Haha, gotcha! Similarly, the movie we consider worthy of an oscar and recommend to all our friends is simply because we get to watch it. What about those umpteen similar movies which you haven’t watched? (emphasising) Or worse, what about those brilliant ideas which were never published or made public because of socio-economic-political reasons? Are none of them worthy of your extollation? (loudly and slowly) There are many creations we are not aware of, simply because we live in one part of the world with limited resources among a limited number of people, while others in other parts may have “less deserving” material (once again, subjective!) but more resources.

Nya: (eagerly) So, now, who is real, and who is the imitator, or (more subtly!) who is the ‘intellectual’ worthy of an intellectual property right? Or are we all borrowing our knowledge from a living body of knowledge that increases with each borrowing? (smiling) This actually reminds me of a quote by Eugene O’Neill that “there’s no present or future — only the past, happening over and over again – now.” So next time when somebody says ‘I’ created it, stop her right away and ask what exactly is this “I” comprised of, and what ‘just deserts’ are being distributed to those components? 

Feus: A nice meander-full monologue! (sarcastically) You guys also remind me of Will Rogers’ words “Never miss a good chance to shut up.” (laughing) I don’t really know if knowledge is a living body in our immortal world or not, but Nya and Jentham are surely living bodies of extending discussions! I still don’t see if there are any conclusions in your talks!

Prof. Antilegend: Feus! Reign in your rudeness! (seriously) And also – no, we don’t always need a conclusion like we don’t always want or know the beginning. Sometimes it is better to travel and find ourselves between the beginning and conclusion. 

So if you talk about intelligence – you can go into neurobiology, neuroscience, astrology, philosophy, brain chemistry, sociology, or you can even go into fate and determinism. But for our current conversation, let’s just agree that intelligence is highly subjective – and for those of you who think it can be objective, let’s just agree that maybe your truth is right … for you. (laughing). But as asked previously when everything can be ‘intelligence’, is anything ‘intelligence’? Maybe Yes or maybe no! Thought for you to ponder over! 

(looking at the clock!) As we are way past the allotted time, so let’s just summarise what we discussed today, and parse the ‘P’ of IPR in the next class. Okay? Now be the valorous volunteer and summarise! (funnily) … Is anybody there? (smiling)

Jentham: Hm, let me try! So, we discussed that intelligence is an indefinite and undefinable term, with a strong rhetorical force and weak/no legal link. In the IP context, it could be considered to be defined and protected through certain ‘filters’ (such as originality, novelty, distinctiveness, etc), whose applicability is also contestable. But, all faults considered, a decentralised decision making process is still more desirable and efficient than a centralised one, thus we persevere! That’s all?

Pocrati: (continuing) And, also the idea of (multifaceted) ‘ignorance’ with some sad story(ies) of ‘ignored’ and ‘systematically ignored’.

Prof. Antilegend: Fair enough! Now, one more thing – take this home (fun) task to bask in the subjectivity of ‘intelligence’, and this may also help you ingest today’s “intelligence” discussion better. In fact – it may raise a new question in your mind – Is intelligence akin to beauty! What do I mean? Watch 1.) Video on Football(ic) Intelligence 2.) Musical Intelligence, and revel in the various forms of intelligence capable by this marvelous brain that we possess. 

So stars, with this (tiny) task for you, I bid a temporary bye … (pause) … just to meet again in the next class with more ideas and hopes (excitedly). Then we’ll see the problems (if any) the “P – Property” in IPR produces. 

(*noise of the students leaving the class*)

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