It’s no news that there is a dearth of empirical research in the Indian IP landscape. As explained by Swaraj here, it’s a particularly perplexing situation as when one is able to find some data on a specific issue, there is no certainty that the data is accurate or that the data has come out of rigorous methodology. Exploring the idea of reforming the current IP legal research methodology, we are pleased to bring to you this guest post by Niharika Salar, arguing in favor of “mixed” socio-legal empirical methods. Niharika is an Assistant Professor at the NALSAR University of Law, Hyderabad. Her previous post can be found here.
Reforming the Existing IP Legal Research Methodology- an Insight into the Intersection of Empirical and Socio-Legal Research
In the 161st Report on ‘Review of the Intellectual Property Rights Regime in India’ the Parliamentary Standing Committee took note of the downtrend in Geographical Indications (GIs) registrations in recent years despite measures being undertaken to expedite the same. The Committee also noted that registration of traditional knowledge as GI would be highly beneficial to consolidate traditional knowledge into IPRs. However, such recommendations were based on talks with stakeholders that did not include local communities and artisans. Similarly, in another co-authored piece, we found that surveying the WIPO database did not answer many queries regarding the background of successful trademark registration applications and why some marks were refused registration, making a thorough analysis of the effectiveness of existing laws difficult. The absence of empirical data can limit the depth and breadth of academic research in the field of IP law, hindering the development of new theories and frameworks. While doctrinal research tends to focus on analysing and interpreting existing legal or theoretical principles, concepts, and frameworks, majorly depending on such research can lead to limited or biased insights. Empirical research, on the other hand, involves collecting and analysing data from real-world observations and experiments. These two approaches can complement each other where validating or challenging doctrinal assumptions through real-world data and providing context to abstract concepts through practical examples. The combination of both approaches can provide a more holistic understanding of a particular issue as doctrinal research can provide a theoretical framework, while empirical research can offer practical insights and data-driven perspectives.
The author argues that a mixed method of socio-legal empirical studies is the way forward, with a combination of qualitative and quantitative methods where a research methodology focuses on both quantitative and qualitative fronts, rather than being more inclined towards one of them. Socio-legal studies will affect how the research is carried out in multiple ways. With upcoming liberal views towards IP rights, in a sense to justify limited IP law regimes and focusing more on the public domain, it would be helpful because the research method would help in deciphering the relationship between society and the law which has led to the latest developments.
But restriction to socio-legal methods solely will not do justice, to which the author proposes to have a combination of methods. There are many different terms used for the combination research approach such as quantitative and qualitative methods. The characteristics of mixed approaches can be where a research methodology focuses on both quantitative and qualitative fronts, rather than being more inclined towards one of them. Multiple approaches include empirical and some theoretical, some both. The use of such mixed methods has the potential to influence the achievement of social justice and avoidance of oppression. It is argued that such a method will be driven by theory, as well as a narrative, due to which it shall have the potential of producing stronger validity claims. If this method can shed more light on how law works in the social world, it could lead to research findings that more readily translate to wider audiences.
The term socio-legal studies can be understood to refer to studies of law that relate to social phenomena and adopt methods from the social sciences to obtain empirical data. Having said that, some scholars like Cownie and Bradney (paywalled) have put forth that Socio-legal scholars, particularly those conducting empirical research, have been accused of producing research that is intellectually simple and descriptive in nature. The researcher conducting some socio-legal research has a wide range of methods and approach options, as well as of theoretical work. As a quick background, Socio-legal research developed during the 1960s when activist courts were the principal and most visible agents of reform. These included the Law Commission of England and Wales, the Scottish Law Commission, Warwick, and Kent Law Schools, and the Institute of Judicial Administration at the University of Birmingham. A growing number of available datasets and sophisticated computational tools for statistical analysis, and an increasing call for empirical research from the Bench compels the need to study the social impact of judicial decisions. In the Indian context, for example, very few Geographical Indications related judicial opinions have been delivered. A case against Pochampally Ikat infringers was filed in the Delhi High Court in 2005 which eventually resulted in an out of court settlement. The aim of collecting empirical data in this context, especially the aftermath of such attempts at litigation on community members, is to provide vital insights from an external perspective into how the law works in society, thus enabling the researcher to examine the law in question in more appropriate and effective ways. It may also bring to light significant views that are not available in the context of an approach that is exclusively qualitative and doctrinal. One of the biggest strengths of this method is that it includes a range of insights and narratives which are beyond books and theory.
Beth Mertz and Stewart Macaulay have appreciated the importance of legal scholars seeking “a more accurate picture of law in action” before they offer proposals for changing the law in terms of using multiple methods. Fortney even goes to the extent of urging a collaborative course of action (in terms of legal ethics scholars) who want their research to be taken seriously by members of the legal fraternity. The use of mixed empirical methods (which combines both qualitative and quantitative research approaches, can offer several advantages over using a single method exclusively) adds to the advantage of showing better correlations and plausible analysis. Such methods combine two sets of strengths while simultaneously making up for each method’s shortcomings to provide the best likelihood of solving research problems, as opposed to using just either. Similarly, it has the potential to result in greater reliability than a single methodological approach to a problem.Bryman also added that this approach gives the freedom to select perspectives “conveniently which might be reasonably used to explore a research problem in pursuit of rigorous and comprehensive findings”, keeping in mind Chambliss’s observation that often a researcher ignores the research boundaries of his/her own methodology and ignorantly picks up a piece of research from other methodology based on shaky assumptions, sometimes even irrelevant, for example, the relevance of traditional community IP rights and lack of empathy towards historical factor behind the law.
A combination of socio-legal and empirical studies has its own shortcomings and obstacles to deal with. The problem fits in an important social science tradition but unlike many studies, this is not a “small group research” and the researcher would have to face the applications for empirical studies in larger and more diverse communities that may or may not want to talk real-time about sensitive questions.
Even though IP is a subject that has attracted an increasing amount of scholarly attention worldwide, relatively little of this academic work focuses on the sociological impact of the law on traditional communities. As many scholars acknowledge, IP law has little capacity to protect communally created cultural products from commercial appropriation or to protect against unauthorized uses of traditional art. Brown argued for a pragmatic and nuanced approach to protection, one that relies more on negotiation and mutual respect than on expansive IP law, which he argues hurts both indigenous peoples and undermines civic values. Gallagher and de Beer have noted that this has led to ignorance of various perspectives in IP law including the socio-legal lens due to which themes and approaches that are at the core of ‘law and society’ scholarship are missing.
But nevertheless, the author believes that “quantitative dominant methods” are the appropriate research method in the given context as a major proportion of the research would be based on understanding and observation of the potential implications of the law. The author believes that understanding the dynamics of society from an empirical lens will take the research and quest for a potential solution to new heights. It is the kind of desired “quantitative dominant mixed methods research” that can be relied on a “post-positivist view of the research process, while concurrently recognizing that the addition of qualitative data and approaches” are likely to benefit this problem. Because the research problem is all about law and implication that is fact and norm, the discrepancy between the fact and norm could be caused by the incompatibility of positive law and the customs that had applied in the Indian society, as per the hypothesis, which would require the help of the ever-evolving socio-legal empirical methods.