IP Reveries: Class 3: Parsing the P -‘Property’ of 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.

Classes I and II brief – In the first two classes, we tickled the term ‘IPR’ and assessed what is actually so ‘intellectual’ in “Intellectual Property Rights”. Today, we will look at the ‘P’ (i.e. property) part of IPR and check if it can get us something else. For previous classes, go here, here, and here.

Class 3 – Parsing the P -‘Property’ of IPR

Prof. Antilegend: Let’s start today with this-mantra – “concepts are (often) coaxed, caught in layers, and configured at convenience”. 

Slato: Hain? (bewildered face) what is this mysterious mantra for?

Prof. Antilegend: This is to point out that (often) what you see is what is shown to you, and you accept it as it has always been that. 

Feus: Thanks for curating some more confusion, now please tell us what the see-shown game is? 

Prof. Antilegend: This is what property is – a concept caught in layers and embedded into our consciousness through centuries of debate over which socio-economic system recognizes it the best way! 

Feus: Here we go again… another advent of ambiguity, (mumbles sarcastically)

Prof. Antilegend: Haha. Today’s muse is a concept that everyone has some familiarity with -‘Property’, even though that familiarity rarely equates to clarity on what exactly it is, much less how it came to be the way it is today! For example, do you know why philosophers love talking about property so much? Or to take a more specific application of the concept – in India, do you know whether the right to property (and subsequent restrictions) arose from a ‘rights’ framework, or from a ‘development’ framework – and what implications each might have? So many questions, once we start digging into this idea of ‘property’! Does anyone know why I’m asking these questions?

Feus: (mutters) good question – god knows! 

Prof Antilegend: Haha, much as it may pain you to know – your answer is useful! For one of the most dominant schools of thoughts about property at least arose from this question of what exactly the ‘divine providence’ meant for people. Challenging the then dominant idea of the king’s ‘divine rights’ to everything, John Locke defended the ‘sovereign rights of the people’ based on his theory that ‘divine providence’ gave the world to mankind in common. This was also the basis for his theory of private property (as laid out in his famous work, Two Treatises of Government – PDF), which would go on to hold large significance for the world. The Lockean theory of property starts from the basis that ‘divine providence’ gave us reason to appropriate natural goods through labour and claim a property right on that. 

Feus: God – property – what? (baffled face) Does that mean that ‘intellectual property’ is ‘intellectually divine’? and that makes this class – divine discussion? (laughing) As if any rational intellectual today, would base a nation’s laws on what ‘god wanted’ for us! 

Prof. Antilegend: In the spirit of continuing to make Feus’ comments inadvertently useful – let’s question what this ‘divinity’ is! Does it mean ‘all powerful’? Because, if so, some nations certainly do seem to think they are divine, at this altar of IP, where they not only played a very ‘influential’ (manipulative?) role in laying out the ‘73 commandments’ (aka TRIPS Agreement), but also want to play the role of shepherd guiding the sheep!

Mindy: ….. Do we have to be the sheep in this example? (look of annoyance)

Prof. Antilegend: Haha, maybe! But …. This IP-scious divinity signals toward TRIPS and its 73 provisions which handle IP and hound those who mishandle it. But note, defining what is ‘handling’, ‘mishandling’ and ‘hounding’ is often done by those who seem to think they are divine!

Feus: Prof., this is so confoundingly clear! We (at least I am!) are not so divine to comprehend any indirect connections between these cryptic commandments and “P-Property”

Nya: Converging with Feus’ confusion – I still don’t understand why ‘property’ is used at all. Haven’t we already learnt that copyrights, patents, etc. are all only temporary benefits given for an end-goal (innovation?), based on the fulfilment of certain criteria? Is this not a state-granted privilege, rather than a ‘property’? How then did ‘property’ get a place between “Intellectual ‘–&—’ Right” in this debate?

Prof. Antilegend: Indeed, Nya. This is a tension that has been around for a long time – romantic notions of individual authorship / creatorship who ‘deserve’ protection on one hand, versus a more utilitarian notion to incentivise creation of ideas and expressions of ideas. But history aside – here’s a point to ponder. Remember those divinities I just spoke about? Imagine that their vision of IP is that of IP maximalism. Which statement do you think is more desirable for them to be making? 

A: Your ‘property’ needs to be limited to ensure the rest of society can benefit from this creation.

B: Your ‘privilege’ needs to be limited to ensure the rest of society can benefit from this creation. 

Akira: Ah, subtle but clever! While the interference with property is (often) disliked, interference with privilege is more understandable.. 

Prof Antilegend: The power in a word! Also, don’t forget that property has often been a tool of control and power in many societies. Though, its meaning and implications have changed over the period of time. Although the history of property both in general and in the IP context is too hazy to explicate here, it is interesting to note that all sorts of words have been used earlier to describe this ‘property’ – these include ‘privilege’, ‘charter’, ‘license’, etc. Over the centuries, there were different understandings of these concepts. This is the reason I brought up the conception of TRIPS’ commandments. By harmonising what they referred to as ‘minimum standards’ for different forms of IP, the ‘property’ rhetoric, even if not the narrative, did become cemented. Why does any of this matter though? Is it merely a matter of semantics? 

Akira: Professor, one major difference that I see in all of this, is that a patent protects my idea, a copyright protects my expression of an idea – but property rights are usually associated with physical objects, not products of my intellect. George Bernard Shaw’s quote seems apt to reproduce in this context: if I have an apple and you have an apple, and we exchange, we’ll both have one apple. but if I have an idea and you have an idea, and we exchange – then we’ll both have two ideas. 

Nya: Yes indeed, we are moving into the realm of information economics here, are we not? It sounds like those are ‘public goods’, which in economic terms are non-rivalrous and non-excludable.

Feus: Prof! I started to get interested but now I’m hearing heavy words again! Help! 

Prof. Antilegend: Hmm … (thinking) … Have you heard of a ‘thaumatrope’?

Feus: Ahm … now … what kind of trope is that? (sad face)

Prof. Antilegend: Haha, it’s a dope trope, provided in this paper, (read Pages 26-29) and briefly explained here as a useful explanation of what’s going on here! (laughing) – With enough skill, one can masquerade two incomplete halves as complete whole! Do you remember drawing in the corner of flip-books and watching it magically become an animated series when you flip the pages? Similarly, a thaumatrope refers to the perception caused when two distinct images appear as one conjoined image, see here (drawing attention to the projector). Now, keep this in mind for a moment and think of IP as having two distinct (and incomplete) images of ‘information economics’ and ‘private property’. Remember, these are completely different things which are just smartly conjoined to make us perceive the ‘P’ in IPR.

Mindy: (excitedly) This sounds amazing. But I don’t understand any of it yet, haha. Please explain?

Prof. Antilegend: Take it this way – the first ‘image’ is taken from information economics. Information economics tells us – that when there is no extra cost to using or replicating a public good (information, in this case), then the most efficient use of that information is to allow it to be freely replicated and duplicated! However, this is efficient only at a given point in time (‘static efficiency’). However, this can lead to a different problem. If anyone and everyone can copy an idea or expression of an idea without restriction, then the creator would not be able to recoup their expenses or receive any reward (from the marketplace) for coming up with that creation. Therefore, information economics also tells us that to prevent ‘dynamic inefficiency’ (that is, slowing down the rate of creation), some external intervention is required. The “answer” that is given, has turned out to be exclusion rights (IP Rights, in this case). But why IP rights, instead of other forms of interventions? Or even more simply – how much IP? For that matter, is it truly the case that interventions are even required – or is the market advantage granted by first-mover advantage sufficient? Surely in many fields, first-mover advantage already does a great job. Unfortunately though – for the most part, data or empirical evidence does not get looked at for such questions. In any case, the problem statement identifies ‘free-riding’ as the issue, and the answer has been decided to be IP! And that takes us to the second image. 

The second image is that of private property. As our ‘collective knowledge’ of economics has already informed us – private property is a great tool for dealing with the tragedy of the commons. And this knowledge of economics also tells us that an individual’s selfish actions in making the best use of their private property conveniently coincides with maximising social welfare, because everyone taking care of their own private property makes the best use of all resources, right? After all, physical property is not a ‘public good’ and therefore, is inefficiently used when it is shared and used freely by many. 

Let me repeat the key part there – after all physical property is not a public good. While information is a public good. And while often confused to be the same, the free-rider problem (that happens with public goods), is a distinct problem from the tragedy of the commons problem (that happens with physical property). The free-rider problem occurs when people can benefit regardless of whether they contribute to the creation or maintenance of a good . The ‘problem’ is not about that good, but about whether a ‘rational actor’ will want to continue creating/maintaining when others can benefit off of their work. The tragedy of the commons problem is about the good, because the good (property) gets degraded by too many people using/consuming it. 

So what has happened here? The problem statement has been identified from the information economics image, while the solution has been brought in from the private property image! Time to spin that thaumatrope, and now in the realm of the ‘property’ narrative, solutions are quickly strewn together! Stronger property rights, better outcomes, right?!

While the thaumatrope you saw above is kinda cool and magical, this magical trick can have marring implications if imported into reality and this is what has happened in the case of IP.

Mindy: Phew (sighed) – that was a long monologue. I’m going to go back and ‘re-read’ it in my head, and pretend you said it over 2-3 conversations instead of as one long ted talk! (grinning). But more seriously and just as a first level response to the framing of the problem – isn’t there a standard problem, with standard economics? Homo-economicus has always been a mirage.

Nya: Hm… (thinking) … Indeed, in the first image i.e. information economics, I see a supposition that all those who indulge in intellectual activity are rational self interested beings who always need an external property type (profit/right) motivation to create. Any empirical backing?

Sugastine: Actually … This ‘information economics’ image also runs with a (rebuttable) presumption that creators will automatically create for social welfare, right? Why else should the state be interfering with the free market? But this isn’t true, is it? (excitedly).. Because.. what are we incentivising people to create anyway? I want to push back on this idea first that all ‘innovation’ is (equally) desirable. The marketplace will naturally direct innovation resources more towards what rich people want, rather than what is socially welfare-ious! 

Nya: (glancing quickly and grinning slyly at Sugastine) Welfarious isn’t a word but I do agree with the gist of what you’re saying. Additionally though, in my opinion, the whole underproduction narrative about IP/information seems to be assuming the question (or the answer) about how much intellectual production we want and should want and thus, inadvertently leading to a belief that more IP is always better. (Pause to think) … This is actually a faith-based IP system that undergirds/bolsters an assumption that more IP equals more innovation and more innovation leads to more progress. But this (utopian) equation (IP = Innovation = Progress) ignores what these three different concepts actually stand for and how they are linked with one another. 

Pocrati: Piquing points, Sugastine and Nya! This unfactual equation, you highlighted, also makes us under stress ‘property’ rights are not just about ownership but also about the management/regulation of economic and social resources. Or “means of production”, one might say.

Akira: (emphatically) In fact, if we think about it as a ‘means of production’, how do we account for the vast amount of knowledge that currently exists in the public domain and in the commons. If we ignore them while discussing intellectual property, it means we are developing a very skewed and incongruous understanding of how we produce knowledge. 

Slato: A much-needed clarification here: the public domain here shouldn’t be taken merely as an opposite of IP protection or out of IP protection. Rather, it is to be taken as an essential freedom within the IP system that fosters/facilitates intellectual indulgence.

Prof. Antilegend: Very nice points, my IP stars. Thaumatrope (sans IP context) is doing good by helping you see the two (in)complete pictures, and get (some) sense of ‘why’ ‘P’ has been perceived so peachy in IPR. But remember, this is just a quick view of how P has (been) permeated into IPR; there are surely many more socio-political layers in it. This intriguing discussion however, needs to be halted here. For our introductory look at these crucial terms and the role they play in constructing a general understanding of the subject, I think we’ve done a fair number on ‘property’, and can now mabble this “Property” matter and move on to ‘Rights’. 

But before saying (temporary) adios to my (IP) amigos, let me do (IP) Reveries’ ritual by giving today’s tiny task – some follow up reading for today’s rather heavy class: some shorter pieces: Amlan Mohanty’s Copyright Infringement is Not Theft, and Swaraj Barooah’s Taking IP on a Spin (Round 1 and Round 2); and some longer pieces: Susan Sell’s Intellectual Property and Public Policy in Historical Perspective: Contestation and Settlement, and Mark Lemley’s Property, Intellectual Property, and Free Riding.