“Intellectual Property Debates in South Asia“, edited by Dr. Pratyush Nath Upreti (Reader in Law at the School of Law, Queen’s University Belfast), is a timely and important intervention that brings together scholars from across the region to examine how IP law is shaped by local legal cultures, policy priorities, and socio-economic realities. Covering India, Pakistan, Sri Lanka, Nepal, Bangladesh, and Afghanistan, the book speaks directly to concerns at the heart of our readership and holds particular significance for us, as it is dedicated to the memory of our founder, Professor Shamnad Basheer, and includes a chapter engaging with his work, recognising the profound influence and enduring inspiration he provided in bringing intellectual property thought from the Global South. Taking forward the engagement with the book in the form of a Book Review Symposium, we invited Shama Mahajan, Akshat Agrawal, and Prof. Ishupal Singh Kang to review the book’s three sections. A big thanks to Hart Publishing, Bloomsbury Academic for providing the reviewers with the soft copies of the book.
Reviewing Part I of the Book (Intellectual Property, History and Development), Shama Mahajan asks why “South Asia” matters as an IP frame, and argues that the region’s particularities, problems, and priorities fundamentally shape how IP has evolved and ought to be understood. Shama is an LL.M Candidate at the National University of Singapore, pursuing her masters in Intellectual Property and Technology Law. See here and here for reviews of Parts II and III of the book by Akshat Agrawal and Prof. Ishupal Singh Kang, respectively.
[We also organized an online discussion on the book, where the reviewers exchanged their perspectives and engaged with questions from the audience. Interested readers can check that out here (Part I and Part II).]
(Part I) Book Review: Intellectual Property Debates in South Asia
By Shama Mahajan
I think when one reads the title of the book “Intellectual Property Debates in South Asia: Law, Development, and Practice”, what grabs one’s attention is not ‘IP debates’ as much as South Asia. The introductory seminar of my Human Rights in Asia subject was interestingly (but not so surprisingly) a discussion on what is Asia. Geographically, we may understand Asia as a continent, but when it comes to historic, socio-economic, or even cultural context in specific and political context in a broader spectrum is much more diverse. Asia is a culmination of sub-regions rather than just regions like Europe. So, why is it important to discuss IP in this very specific regional context? I will again borrow from my professor Thio Li Ann and say that the answer lies in the 3Ps structure.
- Particularities
- Problems
- Priorities
In the Asian context, colonization has a huge influence on how this region defines and views its 3Ps. Colonization sought to enforce systems meant to govern a society, indiscriminately on other societies for which they were never designed nor in which they would work – because the values that shape these societies are different.
It’s been 6 months of doing my LLM, and I can say that all the discussions are dominated by European and US lenses. It’s not to say that it’s wrong, but it is not a universal perspective of looking at things either. As the introduction to the book says, the US and the EU are intentionally decentered in the discussions. Interestingly, I was also reading another book by Professor Liu from Singapore Management University titled IP Laws and Regimes in Major Asian Economies, which again highlights firstly the importance of Asians talking about Asian perspectives and how there is not much literature, but also the need for developing ‘cross-jurisdictional legal empathy’. This refers to the ability of being attuned to the cultural and regional sensitivities and valuing those factors and perspectives in legal discourse. For me, this book offers that perspective and shifts the focus from what is already known to what looms in the background but is never discussed much.
Part 1 highlights the 2 out of the 3 stages that IP has progressed in the Asian Region:
- Enforced as a means of serving the colonizer’s interests
- Its internalization and the struggle to assimilate and integrate it within the regional system
- Influencing the IP policy-making at an international level.
This transition between the first and second is not an easy shift, and it is marked by the tussle between values and objectives.
The balancing act that IP law is expected to do hinges on identifying all the interests that need to be balanced, and a contextual appreciation allows a more holistic policy approach towards this balancing. In the book titled ‘Harmonizing IP Law for Trans-Atlantic Knowledge Economy’ (ed. By Péter Mezei, Hannibal Travis, and Anett Pogácsás), it says that EU law offers a best model for examining how harmonisation should be assessed and undertaken for IP, but what I think it ignores when it says EU offers a good model is caveating it by ‘dependent on what interests are being harmonized’. If we examine EU decisions, one sees the focus of harmonisation being rooted in giving effect to the Single Market objective, and it forms the primary lens for EU policy around IP.
This is not to say that regional context must necessarily always enable, but at times it might also hinder or limit the ability to tackle certain issues. In that context, the discussion on Novartis and section 3(d) of the Indian Patent Act in Chapter 3 by Prof. Yogesh Pai and Mr. Virendra Chandel, places IP in this national v/s multilateral conundrum. The post-independence attitude towards denying a patent for pharma can be justified in the historic, socio-economic context of the times, in particular, and possibly the value system and outlook of the Indian society towards access to medicines and healthcare in general. However, post 2005, when the patent regime had to be opened and aligned with TRIPS, India still held on to those notions, creating Section 3(d).
This leads me into the second objective that Part I tries to achieve, which is question the understanding (or misunderstanding, rather) of hypothesis and premise. In discussing the policy rationale for excluding new forms of known substances from patentability, the ‘anti-evergreening’ explanation is questioned in Chapter 3 for lack of empirical data to actually support the assertion of its need to prevent evergreening. This approach of policy making without a greater empirical survey of the problem is again seen today in an AI and Copyright context.
The following is the summary of what the Chapters in Part I explore:
Chapter 3 – Prof. Yogesh Pai and Mr. Virendra Chandel – Explore how the original intent/values that defined Section 3(d) of the Indian Patent Act have, over the period, been eschewed either intentionally or otherwise as courts grappled with the role and applicability of Sec.3(d). It explores the precedential uncertainty over the status of Section 3(d) as a criterion for patentability that determines patent eligibility, and the eventual departure of courts from the ‘evergreening rationale’ without really clearly stating any specific reason.
Chapter 4 – Prof. Shubha Ghosh – Patent Office Reports from pre- and post-independent India not only offer a ground to question the ‘technology transfer’ narrative under which a lot of policies were enforced by the British, but also whether the current state of a particular system has any links to the past by way of either apprehension or appreciation. It questions whether a patent system transplant in India was a means of technology transfer or did it induce technological obsolescence by driving out the traditional industry by creating competition.
Chapter 5 – Devanshi Saxena – Questions the meaning of global outlook. It asks whether, instead of being universal, does the present outlook tries to impose uniformity by ignoring certain regional realities. It examines whether transplants or transfers within legal systems work in absence of due account for regional and historical context. The absence of local cultural or legal roots and its impact on how IP in general is viewed. Devanshi questions not just the history but even the existing system, where what is good is defined by external agencies. Even today, the narrative of what we think is good for you prevails over what we think is good for us.
Chapter 6 – Niharika Salar and Prof. Pratuysh Nath Upreti – Expands on the themes of how inclusivity in IP is still very economically centered and fails to address other factors like cultural, community, social, and environmental dimensions. Incentive theory of IP is always the famous justification, and yet when it comes to GI, it does not seem to be sustaining it. The chapter also examines the structures of governance and questions the top-down approach. It offers a subnational variation of approaching IP policy and its implementation, which allows for developing policies that account for regional requirements, needs, resource allocation, and financial capabilities etc.
What I do see this book doing is opening a portal for IP discussions to be placed more in the regional context rather than always being influenced by a Western lens. It views IP in a broader scheme of things rather than just innovation and economy, as being capable of shaping sustainable development, regional governance structures and socio-economic justice. It paves the way for further discussions from this lens in terms of trade marks and trade secrets. Where does that balance lie between exclusivity and accessibility? Between economic gains and social justice? It highlights the importance of these discussions for policy-makers to attempt to achieve this balance. Chapters from other parts of the book, like Copyright and Education bring to the forefront the inherent inequalities that permeate and impact the IP governance system and attitudes of regions, for example, the discussion on ‘Accessibility’ is not only being influenced by the economic capacity but also factors like language that determine its discourse. Questions like whether social structures and factors like gender or caste play a role in existing IP governance and administration, and whether they influence it in any form or manner? Whether existing systems like for GI, or Copyright Societies, or even the proposed hybrid models for AI licensing, is there a scope to discuss these structures in the socio-political and economic context of the Indian social structures? Should IP become the means to widen the economic inequalities or the mode to bridge those gaps? What role can or do collaborative and awareness-driven approaches play in bridging these gaps? Can IP governance structures perpetuate gender-based discrimination? The chapters bring forth not only perspectives and arguments but also more questions that need to be delved deeper into. Some of these perspectives are more unique to this region specifically and thus demand greater focus and further research.
