World IP Day : DARE You Celebrate!

Today is 26th April. The day, which is termed, every year as the “World IP day”, by the World Intellectual Property Organization. This is to celebrate and romanticise the concept of market exclusivities and the right to exclude. Exclusivities in culture, in knowledge, in information and consequently in pharmaceutical innovation.

This World IP day, I would like to pose a question – what has this romanticism led us to?

The deadly repercussions of internalising IP in terms of excludability/ the right to exclude- as the most viable form of incentives for innovative and creative production- are clearly visible to us today.  COVID-19 has led to many pieces being written all around the world arguing to invoke compulsory licenses, to ensure technology transfer, to prevent trade secrecy, to maintain voluntary social solidarity towards resolving the crisis which we are facing. We are even looking at a TRIPS waiver, for an equitable access to not just drugs and technology- which can help a multitude of organizations develop drugs- but also to access research and R&D, which are the basic fulcrum of knowledge development, and are blocked by exclusivity rights- facilitated by IP ownership.

It is interesting to note, however, that IP was infact, paradoxically, developed to “encourage” learning, “stimulate” creativity, for scientific “progress”, and to help cover costs of innovation. Sadly so, it is now used as a lever to earn windfalls out of publicly funded creations, and derivative knowledge.

What is the point of such “progress”, when inspite of the availability of the end result (vaccine), it is practically left inaccessible, and primarily so due to the idea of exclusivities? What is the point of a “means to an end”, when the “means” itself hampers the realization of the “end”, to the extent of its desirable social utility? Propertizing knowledge and culture is dangerous.

IP was envisioned as a limited entitlement, and sadly one revolving around exclusivities being conferred to one who has the privilege of being the first mover – often dictated by “capability” and structural positions in the society, as also, years of appropriation of capability (ironically so) (see here). IP apparently is something used to “protect” (see here) the “creator”/ “innovator” against appropriation, but to be honest –  IP infact amplifies the norm of historical appropriation, because this is what is the foundation of the capability involved in being the first mover.

We often think of IP as something which invokes the Blackstonian idea of “my creation = my sole and despotic dominion” (see here– pg. 1135-1136), and go on to equate it to tangible property (see here), conferring the right to exclude – that is the right to restrict access, unless the access-seeker budges into the terms which I impose for them to access “my” property/IP. But let’s think socially for once- what was the purpose of conferring this monopoly? Was it to empower the so called “creator” to an extent that they could demand access- seekers/dying patients- to put up sovereign assets, including military bases and federal bank reserves, as a collateral for access? Is this a fair tradeoff for innovative efficiency? If this is what IP permits and if this is the dialogue around power that it frames- I am sorry there is nothing, whatsoever, worth celebrating. It’s a dark day. IP and propertisation of knowledge – the greed it induces – the norm of excludability it fosters- is one of the reasons why there are more corpses to be cremated, than “ghee” which can be used to facilitate this cremation.

People say: But for IP protection, these companies would never have been incentivized to create the vaccines anyway. But for IP, artists would be dying. But for IP, we wouldn’t have any movies that we watch to relieve ourselves during these dark times. But for IP, my business and my brand can easily be appropriated and but for IP, anyone can steal anything that I do. “Thou shalt not steal” is what is the principled justification of the existence of IP and exclusive rights in essential resources today.

I have a few important and compelling questions/ observations for these people:

  • Who funded the research which was used by Bharat Biotech? (cough cough! ICMR- that’s my (taxpayers) money. Where is my vaccine? If not, BB show otherwise please? Where is the transparency?). See – here, here, here

  • IP specifically in health resources and knowledge resources is not like any other market-oriented exclusivity. Such exclusivities curb access to materials which are otherwise backed by Fundamental Constitutional Rights. There has to be limits to so-called “incentives” which IP provides, to the extent of ensuring effective access along with recoupment of costs. This statutorily conferred monopoly cannot be left to be realized on the whims and turns of the market- given its direct impact on access to fundamentally essential resources. Is there any proportionality/ transparency on this exclusivity? Has BB shown how much it spent on the development of the vaccine?  Is there any data which justifies the extent of compensation it deserves? Or wait, is it correct to leave it to its market power, especially when what that directly leads to is “people dying”? What justifies the “limited right”? or is IP just here to bestow windfalls (as it has done in the past- making pharma industries and academic publishing industries a few of the most profitable industries in the world (See here and here)), and unless one budges into their demands, you better die? The IP system is murderous. Data Exclusivity is murderous. (See here and here , here and here.)
  • Is IP concerned about the actual structural inequalities that are persistent in our societies, the actual images of the people who are barely able to afford a meal today? Is it mindful of distributive realities? What kind of drugs are being developed due to IP? Rare diseases – NO, Diseases of the developing world- NO, Infections and conditions which do not affect the rich- NO, Obscure diseases which affect Tribals, Adivasis, due to their lifestyles- NO (here), but wait- Hair Transplant treatments? – YES. See here and here.
  • “Compulsory licenses” – Let us think about the number of times they even been used? Once in India in the last 51 years. Heard about Special 301 US report (here)? Compulsory Licenses as well as Article 31bis of TRIPS are just a farce, and let’s face it, that’s the truth- the amount of economic pressure that comes with the invocation of Compulsory licenses, due to structural global positions, almost makes it impossible to invoke this provision, rendering it practically almost theoretical, even during situations of such a pandemic. Anyway, even invoking such provisions barely help, due to trade secrecy, regulatory burdens, threats of trade sanctions on alternate industries, diplomatic pressures and gaps in know-how. See here, here, here and here.
  • Research Exceptions in Copyright law are theoretical provisions, because they need one to honor paywalls in the beginning itself- for purposes of access. If I don’t honor the paywall, and circumvent it, to access for researching and further building on knowledge- well the anti-circumvention police are after me. What is the purpose of the research exception? Nothing. It is practically useless, unless I pay Elsevier for access to the paywall protected article. See here. Is that conscientious to the knowledge and research development in the developing world?  Or is IP basically a tool to widen the knowledge gap, and the capacity to access and use essential research thereto?
  • How will the book author earn? How would they make money? – Well copyrights are never with book authors firstly, due to transferability. So, the whole idea of “fruits of one’s labour” is another farce to cover up for interests of industries which want to capitalize on knowledge and earn without any limits, through a monopoly on these creations- facilitated by IP. They don’t care about humanity. Just profits. As William Patry once rightly said, Copyrights as authors rights is a fascinating story carved out by industrialists to put authors in the forefront, and ultimately use the narrative, through the almost hidden tool of transferability  (it’s like those convincing ponzi schemes, with faint and minute disclaimers: “terms and conditions apply”). Copyrights as effective tools of remuneration and incentive for “authors” is the biggest canard in our history and we must realize it ASAP. (see here and here)
  • A comparison of the revenues earned by publishing houses (and even for academic publishing), is grossly disproportionate to what goes back to authors of these works. (An insightful report by Authors Alliance) The Academic Publishing industry earns a fortune, from all corners (See more here, here, and here), by exploiting these copyrights, which were intended to ensure reasonable revenue and control in favor of authors. For these publishers, it is their monopoly on visibility in the market that renders this possible. In fact, if one does not fulfill the requirements of what the publishers want to publish (including the narrative of information), it may not even get published. Authors are often at the mercy of publishers, who in fact exploit the rights of these authors, to earn the maximum amount of money for themselves. If Copyright is actually supposed to help authors recoup income through these rights, where is the income? Why are authors having a hard time making it, monetarily? (See here) Are such exclusivities desirable, at the cost of access to educational/ research papers/ knowledge resources/ resources which facilitate development of vaccines and healthcare? Is the tradeoff worth it?
  • Why would people make music? How do artists get remunerated if not for IP? Well, apart from the 1% superstars who conform to the homogenous mainstream music market, does any artist even make money out of copyrights?  Realistically, few authors have made money through copyrights. Various studies and anecdotes have helped substantiate this over time. (See here, here (page 16), here, here, here). In fact, vaguely 10% of the revenue through copyrights, has been argued to be disseminated amongst 90% of the creators, with the rest in the hands of certain “superstars” (who make mainstream content) as well as these industries themselves, which are  gold mines.  Prof. Shamnad in a hard-hitting piece, which dates back to 2010, had emphasized upon this rhetoric, highlighting the plight of creators. What is the point of a system focusing on exclusivities which are transferable, as against direct remunerations to authors? (see here for a detailed post arguing disintermediation)
  • The idea of Copyright as incentives to create cultural works is indeed questionable. As Zimmerman recognises here:

“A raft of recent studies makes it quite clear that modern creators generally have little more realistic hope than Victorian poets of earning much in the way of remuneration for their acts of creation. The copyright “incentive” notwithstanding, it is more credible to understand their devotion to the production of expressive works more as a product of love than as a response to the promise of money, because they are unlikely ever to see much of the latter. A British survey, for example, found that few of that country’s writers could support themselves by their craft, with the result that most must regularly turn to other part- or full-time jobs to supply themselves with the income necessary to survive.  This finding is consistent with those from similar studies in the United States and Canada”

There are many who have actually questioned the relevance of “exclusivities” as the reason for inducing cultural production, as well as an effective remunerative tool, even from a fruits of one’s labour approach. (see here, here, here, here, here, here and here). In fact, there are research outputs that show that copyright constraints creative autonomy, and fosters industrial conformity towards the marketable mainstream. (here, here, here and here). IP is a tool of coercion of agency and concentration into cultural homogeneity, as against democratic and representative discourse. It embraces difference within a homogenous bubble- not representative diversity. What justifies exclusivities then? Windfall incentives to invest? What about alternate- non access curbing- incentives?

  • What kind of creativity does copyright incentivize, if at all? Industrial mainstream creativity which is capable of generating the most amount of money for those who control distributive visibility. Basically, content which satisfies the aesthetic and cultural conceptions of those who are wealthy and can pay the most, and can make these copyright owners (transferees, by virtue of distributive edge) richer. It contributes to erasure of dialogues which do not belong/ or satisfy the aesthetic judgments of economically superior (often due to structural reasons) audiences who can generate maximum profits for creative industries. It results in erasure of non- urban, non-upper class, non- elite, non- upper caste, and non-racially skewed dialogues, which would make these upper classes uncomfortable. It fosters speech hierarchy which furthers the divide around privilege of capability. It levels creators belonging to communities which depend on borrowing as a normative practice as “lazy thieves” and labels them as imitators who lack the capacity of groundbreaking art, due to the derivative nature of their creative expressions, inspite of that being the norm. (look out for my upcoming paper titled Access to Culture Dialogues, dealing with this. Had presented it at WIPIP’ 21. Here are the slides).
    • IP is a shorthand for creating a white male knowledge citizenry that is completely ignorant of the knowledge and historical divide of capabilities, and appropriation thereto, as also the normative practice of borrowing and sharing involved in various cultural societies, where these norms are coerced. IP is racist. (see Anjali Vats- the color of creatorship for the last 2 bullets). It also privileges those with a capability of a first mover advantage due to structural considerations. It favors with those with better “natural” engines and provides them exclusive monopoly rights over exercise and use of that particular resource, estranging many. It does not favour the first creator (in copyrights, there is no way to ascertain whether the person claiming monopoly is actually the “first creator”), but rather the first “showcaser”, one with the ability and visibility.  See also here, here, here and here. It favors and provides exclusivities to certain kinds of cultural practices that are individualistic, textual (as against aural), and non-derivative (supposedly, as a myth), ostracizing those who practice alternate cultures, economically.

    The idea of the IP system as an entitlement, even for purposes of autonomy, “just” desserts, labour as also incentives, is a flawed belief– lest it should not have been transferable, it should have accounted for bargaining power, it should have been perpetual (which it isn’t and thank god for it – the statute of Anne was only a 10 year right (See here, but also here). IP was supposed to be a tool, to ensure that firms which invest in innovation and authors who create, are not “disincentivized” and forced to shift to marginal sources of revenue due to capitalistic forces in play. However, now, do we even need such incentives, or rather do we need such incentives which provide the power of excludability? A serious response to the same must be considerate of the magnitude of profits currently being earned by Pharma and publishing industries, and the extent to which alternative systems, which do not depend on access control, and exclusivities would corrode these profits. (For profitability in the Pharma Industry see here, here, here, here, here and here) It requires transparency in financial data, and requires conducive thought to the idea of health, education and culture, which are in effect commodified upon a model of excludability, being involved and them being fundamental to human existence. Are Patents and similar exclusivities the only drivers of innovation? See here

    Before I am bombarded with opinions which blast me saying – “What is the alternative you suggest?” – I am no one to suggest alternatives. But there are people who have been studying this field and constantly foreseeing the problems with the IP system i.e., excludable monopoly over knowledge, culture and health resources, and have suggested some feasible alternatives. But, as I guess, they will never see the light of the day, because well of course they go against the idea of “staggering profits” and windfalls, which these industries have gotten accustomed to, even if that so at the cost of human lives. If you still however, wish to see the alternatives to the IP system- which do not involve the “Right to exclude”– see  here, here, here, here, here. here, here, here, here and here.

    I believe, it is time to look beyond internalizing exclusivities and excludable. It is time to look beyond the term “Property”. It is time to believe in alternatives- one’s that aren’t governed by whims and fancies, but rather are accountable towards their larger social goals they seek to promote. If this pandemic has taught us one thing-  it is that we are all connected human beings- socially affected by and to some dependent on each other. We need to respect that and look beyond individualistic benefits and incentives.

    Let’s look beyond sole concerns of economy and industrialization, which employ means that restrict fundamental human growth. As Amartya Sen says:

    “Focusing on human freedoms contrasts with narrower views of development, such as identifying development with the growth of gross national product, or with the rise in personal incomes, or with industrialization, or with technological advance, or with social modernization. Growth of GNP or of individual incomes can, of course, be very important as means to expanding the freedoms enjoyed by the members of the society. But freedoms depend also on other determinants, such as social and economic arrangements (for example, facilities for education and health care) as well as political and civil rights (for example, the liberty to participate in public discussion and scrutiny).

    With people dying, corpses repeatedly filling burial grounds, innovative capability being stifled due to exclusivities inspite of the availability of 5 developed vaccines owned (through patents and trade secrets and data exclusivities) by already billionaire industries, I must say, the IP system* is definitely partly to blame for the continuation of deaths.

    Therefore, to conclude – Dare you celebrate today. If you choose to do so, you better know that the IP (excludability) system is complicit, and so are you!!

    *focusing on industrial policy and excludabilities and justified by non- inclusive economic considerations which further the rich getting richer aphorism.

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