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IP Reveries: Class 4.2 Ruminating on the “R – Rights” 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 a general introduction to this IP Reveries series, please check the introduction post here.

the words 'all rights reserved'

Image from here

(In Class 4.1 i.e. pre-break session, we discussed what an IP ‘Right’ is and checked whether it is a meaningless term which presumes the presence of a singular right. In this class, we will continue our reverie-ish raking of ‘R- Right’ in IPR to see how the overlapping meanings of the term ‘Right’ can obscure our understanding. (Previous classes available here: Class 1, Class 2.1, Class 2.2, Class 3, Class 4.1)

Class 4.2 Ruminating on the “R – Rights” of IPR!

Post Break

(Students entering the class after the break)

Mindy: Hi Prof., To continue from where we left off – I think the ‘right’ that we are ruminating on is inescapably shaped (and sapped) by the socio-politico forces. Thus, its overlap with ‘wrongs’ and ‘lefts’ is obvious. But still, I don’t know what is and how to understand what a ‘right’ is?

Prof. Antilegend: Mmm … When you face such questions where you don’t have any definite answers or have no clue where to start with, simply say “it depends” and then ask “on what?”… (smiling) Let’s do it here – the answer to ‘what is a right’ … (pause to create interest) … depends upon whom you ask – a law person or a lay person? If you ask a law person, the answer would very likely be along the lines of – a legal entitlement over something which can be enforced through/against the state. 

Now leave the law person alone, and ask a lay person what a right is – the answer would very likely be grounded in morality and seen as “something that is not Wrong” or “something we deserve”. Thus, as per a lay person, a legal right would be something that is “not wrong” and “deserving”. 

Here lies the rub (empathetically) – if you ask further about ‘what is/isn’t wrong’ or ‘why we deserve something (especially as against others)’, a bundle of self-sanctified reasonings come in. At this point, you are likely to find a deadlock which needs an ideological aid (e.g. religion, rationality, culture, nationality, etc.) to unlock. Do you get what I mean? 

(*utter silence of a few seconds*)

Nya: Not completely, Prof. Let me summarise once and correct me if I am ‘wrong’- a right (in the current context) is just a legal entitlement given to you against others, including the state and the reason the state gives it is – it was right to do so in some larger social/public interest. So this is essentially a ‘means’ to an end – a ‘proxy’, if you will. But in this discussion, this right (in law) and right (in morality/truth/fairness) may get mingled in a way that their separate meanings get clouded. This (mental) mixing of meanings may give rise to situations where even though a legal entitlement is supposed to be instrumental in reaching an end, it gets legitimacy regardless of its intended role, even when it is not leading towards that end, or worse, even when it is leading away from that end.

Mindy: I get it … perhaps (murmured) … so you are simply suggesting that ‘IP Right’ was created to advance some purpose and now it has become more important than the purpose. Okay … all good … all true… all agreed … (not at all understanding) when and how does that happen … care to contextualise?

Nya: Hm… If you read the International Copyright history and compare it with today, you can see that then ‘right’ both in a legal and moral sense has got new legality and morality. An old article, in the context of the ‘right’ of foreign authors in the American context, may clarify this:

“So long had free-booting in English literature been the general custom, that “selling honesty for interest,” had then ceased to be regarded as a moral wrong, and this literary pillage was even looked upon as the common inheritance of all who chose to avail themselves of it.” 

Feus: Thanks for sending us to search for an 80+ years old article that’s still behind a paywall! I’m sure my paying for access to it is incentivising more bright authors out there! (sarcastically)

Akira: Perhaps that’s a good example of the proxy getting mixed up with the end goal! Also, seeing it from a different perspective, many religions, cultures, and communities have treated knowledge as sacred (sometimes using sacredness as a barrier!), creating many internal conflicts with the commodification of knowledge. Along those lines, ‘right’, ‘knowledge’, and ‘right over knowledge’ have been seen differently, and sometimes even conflictingly. 

For instance, didn’t some proponents of Hinduism disassociate with the idea of an individual’s right on knowledge or knowledge as a property, while at the same time also maintaining that not everybody was free to enjoy knowledge in society? Similarly, in Islam, for many, the core method of transmitting knowledge was recitation, and ‘commodified knowledge’ has been the core of many contestations. Thus, regardless of specifics, to me, it seems clear that in such approaches to knowledge there was more about ‘knowledge governance’ and less about a ‘right’ as an individualistic legal claim.

Pocrati: Yeah, exactly. I’ve read this very interesting paper on Buddhism and IP too, where my takeaway was that while the Vinaya (rules) required respecting intellectual credits and appreciation, knowledge was not seen to be something which one could “own” or “possess” – this also indicated to me that ‘commodification’ of knowledge was not part of their knowledge governance systems. And the Confucian belief of “I transmit rather than create…” may indicate the social nature of knowledge production. Am I stretching it? I’m no scholar of these belief systems – just thinking aloud. 

Slato: Actually, (thinking) could the same also be argued for the Judeo-Christian tradition where the knowledge that Moses received from Yahweh was freely transmitted to the people? Or is that more akin to ‘discoveries’ that even our current IP systems deem too crucial to allow commodification of? Likewise what about the New Testament which regarded knowledge as a gift from God (1 Corinthians 12:8)? or when Jesus urges his disciples, “Freely ye have received, freely give” (Matthew 10:8)? I’ve never thought of these lines in this context, there seem to be so many lines of thought to explore now. Now I want to go and see what I can find that contradicts everything I just thought of, and the examples you all have given too. I’m sure it’s there. (excitedly).

Nya: Hm … now I wonder how the concept of Dharma would engage with this right talk. (curiously) Because, one of the meanings of ‘Dharma’ is a duty, not following which is adharma which is wrong. Given this, shouldn’t creating and contributing to knowledge be one’s duty regardless of the consequences i.e. giving an individualistic claim on the contribution? If that premise is established, it (what we call an IPR today) would actually be an intellectual duty, not doing which can be an intellectual wrong. Oh, wait. … are we not indirectly and subconsciously wronging a right and righting a wrong and thus …(confused and fizzling out).

Prof. Antilegend: Haha, from an “intellectual right” to an “intellectual duty” to now an “intellectual wrong” … interesting! But (facing Nya), I don’t wish to walk into the “IP Dharma” terrain, though I do want you to notice how difficult a ‘Right’ talk is and how it can lead to an intellectual imbroglio owing to its convergence with so many other moral and ethical topics of our daily life. Anyways, good points by the class overall! It’s exciting to see you think beyond the box! 

Coming back to IP, when I see the foundation of it – I see an exchange which ultimately shapes the right-duty ideas. Let’s take the patent which is founded on the ‘exchange’ between state and inventor, no sorry (coughs) … the registrant. The state will grant the ability to exclude others from using an invention, but the inventors will have to publicise their invention and how to make it, so society can build upon it. Thus, ‘disclosure’ is the underlying idea and a necessary criterion behind granting exclusion rights in the first place, regardless of how (not) seriously it is taken today by the patentees. 

Keeping this in mind, rethink our discussion and understand that … (emphasising) if the purpose behind granting a patent is the mandatory disclosure by the patentee, should a patent even be considered a ‘right’. (emphasising) Because if it is conditional on you “actively fulfilling” a criterion, (and not just passively being eligible / not eligible), then it is arguable that a ‘duty’ to disclose is a pre-condition to the grant of any patent right’. So stars … (loudly and slowly) … why is the focus only on the latter (i.e. right) and not the former (i.e. duty)? And you can also analogise it with Nya’s Duty idea. While thinking over this after class today, you could also go through this article for a slightly different take on all of this. 

Mindy: I don’t know why or whether it’s a duty, but regardless, if not a right, what is IP then?

Prof. Antilegend: A privilege … perhaps? An intellectual privilege granted to ‘some’ with the object of causing larger social benefit. Thus, as stated earlier, it has an instrumental role to play, and the moment it stops playing that role, it can and should be modified or adapted or even abolished as the case may be. 

And just to be clear, I don’t say Intellectual Privilege because of some internal antagonism, both the history and the theory underlying this subject suggest so. In fact, the term ‘privilege’ was supposed to be used but said to have been deliberately avoided to conceal the negative connotations attached to the term. 

​​Fritz Machlup and Edith Penrose wrote (page 16) in the context of French Debate: “... those who started to use the word property in connection with inventions had a very definite purpose in mind they wanted to substitute a word with a respectable connotation, ‘property’, for a word that had an unpleasant ring, ‘privilege’.”

While you think over that – let me also throw another set of ideas at you! 

There are other theorists like Hohfeld who, instead of focusing on what a right is, provided a semiotic structure to understand what a right does for its holder. That is to say, he understood it through the terms of the legal relationships created rather than what a ‘right’ creates. Besides rights and privileges, he spoke of six other jural relatives namely duty, power, liability, immunity, disability, and “no-right” to define all the legal relationships. 

Mindy: Then what?

Prof. Antilegend: Then simple … we are all connected … at least legally. Now (emphatically) understand these examples carefully – E.g. 1.) My right comes with a duty on you; 2.) My privilege to do something means I have no duty not to do it and you have no-right to it. So here – I lack a duty, and you lack a right-claim; 3.) my power means my ability to change the legal relationships (i.e.privileges or rights) of others. Here – I have power and no disability but you have liability; finally 4.) my immunity signifies the lack of your power over my legal relationship (i.e. you can’t my legal relations), here – I have no liability and you have a disability. Do you understand?

*silence and then groaning from the class.*

Haha, don’t worry, don’t worry. This is confusing for everybody, please read them again in your mind and picturise them with some examples and you will get it ‘right’ (smirking). Always remember, they all are interconnected and keep shifting here and there. So, don’t try to locate or bracket them in a singular space. As said (and set), IP is a bundle of rights, it can have a component of all types. But what it fundamentally is, is the question I want you to ask, answer and understand.

Jentham: But Prof, wait …regardless of what we call ‘IP’, it will not change the reality of it.

Prof. Antilegend: Eh, regardless of what we regard less (or more), the language does affect the way we praise or prod a concept. It not only particularises our understanding and clouds our judgments about it but also it carries the effects of those particular words/languages in the ages to come.

Akira: Okay … so this way, IPR has all the Hohfeldian elements a – 1.) ‘privilege’ to use IP, 2.) ‘right’ to stop others from using the IP, 2.) ‘immunity’ against others to alter your legal relations (e.g. somebody cannot just  make you a licensor without your permission), and 4.) ‘power’ to license your property or give it on lease thus, changing your and others’ legal relationships.

Poracti: Interesting! Then …. what about the limitations and exceptions on IP like fair use, compulsory licensing, honest concurrent use etc.? Should they be treated as the ‘privilege’ of the public for which IP holders possess ‘no right’ e.g. education?

Prof. Antilegend: Maybe, why not! (thinking) … Intellectual Privilege and User Privilege … hm sounds like a better bracketing! This way, we may create clearer boundaries (b/w ‘Norm/Rule’ v. Exception) and bring a better balance. But that is for you to ponder over. I think you can see now that R of IPR goes either (or neither) way. 

So stars, with all this yeasty yo-yoing of “I”, “P”, and “R”, it is upon you to decide what an IPR is – an Intellectually Produced Ruse (IPR), an Intellectual Property Privilege (IPP), or an Intellectual Property Right (IPR) or something else. Now you have a lot of ideas to discuss in your philosophy class, let’s RIP here. Haha … I just mean rest intellectual property here and discuss something else in the next class. 

And now it’s homework time. This week, I want you to carefully cogitate on:
a) Intellectual property, 700 B.C. – A.D. 2000 by Carla A. Hesse for some historical perspectives;
b) Ayyangar Committee Report for some policy perspectives, and as an example of one state looking into how various other states have considered IP and knowledge governance; and
c)The Patent Controversy in the Nineteenth Century by Fritz Machlup and Edith Penrose, for the patent controversy in the 19th century (winks).

Then ask – How the governance of knowledge has changed over time, whether this is useful change, or we have just accepted it as an unchangeable change!

(*students leaving the class*)

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