infoJustice

On Friday, I joined law professors Srividhya Ragavan of University of Oklahoma and Brook Baker of Northeastern University Brook Baker in comments to the Indian government on its recently released “Draft Intellectual Property Policy.” Our overarching comment is that the proposed policy makes a categorical and critical mistake of promoting intellectual property as an end in itself rather than as a means for achieving social and economic progress through enhanced production of and access to the fruits of creativity and innovation. The heart of the comment states:

Our overarching concern is that the report does not closely adhere to the guiding norms that the paper rightly defines in its first two sections introducing and describing India’s IP system. In those first sections, the paper (on the whole) appropriately describes intellectual property in India as seeking a just balance of rights and obligations (protections and limitations and exceptions) as a means to serve Constitutionally recognized ends of developing scientific and creative capacities of the Indian people. The paper could also cite to the ends described in Article 27 of the Universal Declaration of Human Rights. Properly conceived, the norms governing the policy should reflect:

• First, intellectual property systems are means to the greater ends of society, not ends in themselves.
• Second, the ends that IP is meant to serve include to promote both production of and access to fruits of science and creativity.
• Third, in order to achieve the production and access promoting ends of IP policy there is a need for context-specific tailoring of protections and exceptions and limitations to achieve a proper balance of rights and obligations.

We see these views reflected in, for example, the leading paragraph of the introduction describing the ends of the law in Constitutional terms (p.1), the description of “balance” and “flexibility” as critical objectives of Indian intellectual property law and policy – including as reflected in India’s policy of resisting “TRIPS-plus” agreements in the international sphere (p.2), and the support of India’s current legal system as “effective and balanced” (p.3-4).

Unfortunately from our view, these themes do not permeate the entire report. Much of the report, particularly in the suggestions of policy proposals the draft considers, intellectual property protection is treated as an end in itself, rather than a means to higher social goals and functions. This leads to the report failing to articulate policies to promote awareness of both sides of the intellectual property system, and failing to consider non-IP policies to promote creation and innovation.

This logical conflation of means and ends begins on the first page of the report, which describes “patents” and “copyrights” as “intellectual creations,” which they are not. Patents and copyrights are legal privileges granted to promote the production of and access to intellectual creations, and they are limited by those ends. If intellectual property protection were ends in themselves, there would be no need for balancing features like compulsory licenses for patents, fair dealing rights with respect to copyright and the like.

Later, the report presents a “vision” of “intellectual property led growth in creativity and innovation” (p. 5), as if creativity and innovation promoted by intellectual property is superior to creativity and innovation promoted by other policy tools, or as if there are no such other policy tools.

Section 1.2 states a goal of creating “a systematic campaign for promotion of India’s IP strengths.” Isn’t what needed a campaign to promote India’s creativity and innovation strengths?

Section 1.2.3 calls for case studies of “successful use of IPRs” but not of limitations and exceptions to intellectual property rights, or of open access tools like Creative Commons licensing or of any other knowledge governance policies.

Section 1.3.1 calls for awareness of programs to “protect” intellectual property, but not to promote awareness of limitations and exceptions from protection or of tools to release knowledge creations to the public, e.g. through Creative Commons licenses and other means.

Section 1.3.3 calls for development of joint “IPR programs,” when what is really needed is likely programs to promote research and development or creation and innovation, of which IP policy might be a part but should not be the whole.

These are but a few quick examples from the first pages of the report. The logical flaw of equating intellectual property protection (excluding limitations and exceptions and excluding other aspects of knowledge governance) with the end of India’s public policy instead of a means to achieve ultimate social ends pervades the policy recommendations and degrades the utility of the report as a whole. The document would be vastly improved, and its logical flaws more evident, if it removed nearly every reference to “IP” and substituted it with a more concrete and accurate term.

• “IP” should be replaced with a term like “knowledge governance” whenever the report is discussing means of promoting creativity and innovation. At minimum, every such description of IP “protection” as a means must be linked to limitations and exceptions from such protection as a correlative means to the same end.
• “IP” should be replaced with “creativity and innovation” where the report uses “IP” as an end in itself. One such example is in the heading of Objective 2 on p.8 where it states a goal to “stimulate the creation and growth of intellectual property.” It is creativity and innovation that India should seek to stimulate, not intellectual property for its own sake.
• In many other places the term “IP” should be deleted as a useless qualifier, such as throughout section 1.4 proposing an “Innovation, Creativity and IPR Museum” and a “Hall of Fame” to celebrate “IP innovators and creators” (but not other innovators and creators?).

Perhaps more importantly, at each place where “IP” is used, the recommendations must be critically evaluated to consider the full range of knowledge governance policies and programs that can best promote the ends (increased production of and access to the fruits of creativity and innovation). Development experts are in broad agreement that in a country like India (and indeed any country) intellectual property is often not the only or best tool for this ultimate purpose.

Our full comment can be found here.