Intellectual property accelerates innovation in certain technology sectors, but it impedes innovation in others. The biggest flaw of the new policy is that it does not acknowledge this.

Intellectual property (IP) regimes suffer a classic paradox. While they attempt to encourage innovation and creativity, they have themselves been shielded from innovation experimentation. For some years now, India has been attempting to break this mould and craft a regime to suit its own distinctive set of concerns. Section 3(d) of the Patents Act, 1970, was a bold attempt in this direction, aimed at eradicating “evergreen” drug patents.

Sadly, this distinct attempt at diversifying a problematic global IP script is slowly yielding to larger market forces. It is reinforcing a realpolitik predicated to a large extent on various campaign contributions flooding the coffers of candidates striving to lead the most powerful democracy of the world, namely the U.S.

Shamnad Basheer Shamnad Basheer

Flawed foundation



Enter India’s recently unleashed IP policy into this new political fray — one that, at best, repeats ad nauseam the various platitudinous phrases around intellectual property. That it is meant to foster innovation and creativity. That it must be balanced against public interest and public health. And that the Agreement on Trade-Related Aspects of Intellectual Property Rights or TRIPS is the benchmark and that India is compliant with relevant international norms.

And yet, at worst, the policy represents an extreme excess in terms of its one-sided view of IP as an end in itself. And therein lies the greatest flaw. The policy fails to situate IP within the larger context of the innovation ecosystem, refusing to acknowledge that while IP could accelerate innovation in certain technology sectors, it impedes innovation in others. This is a truth touted not only by those labelled as left-liberal ideologues, but powerful industry giants facing the brunt of a promiscuous patent regime — renowned giants such as Tesla’s Elon Musk who have either eschewed patents or dedicated them to the public domain.

And yet the entire edifice of the present IP policy is built on this flawed foundation equating more IP with more innovation. The policy sounds almost militant when it proposes that despite our ancient “laudable” heritage where knowledge was freely and extensively shared, we must now make amends and convert each piece of our knowledge into an IP asset. This flawed frame results in a number of problematic assertions in the text of the policy.

It advocates that publicly funded scientists and professors must compulsorily convert all of their discoveries into IP assets, much before they have even written this up and published it in reputed science journals — and that their promotions be predicated on the number of IP applications made. A hark back to the past would reveal that visionary scientists such as Benjamin Franklin and, closer home, our own J.C. Bose shunned patents owing to their potential to curb the free flow of knowledge. We must encourage a plurality of approaches when it comes to IP and innovation; our scientists should be free to take this call on whether or not they wish to register IP. Doing so for the mere sake of it is stupid, quite apart from the fact that on an empirical cost-benefit analysis, most U.S. universities lose more money on IP registrations than they make through IP royalties.

The policy needs to be commended for taking note of our “informal” (rural) economy and the need to encourage the prolific creativity found within. Unfortunately, far from understanding the drivers of creativity and the modes of appropriation/sharing in this “shadow” economy, the policy leans towards the superimposition of a formal IP framework on this marginalised sector.

Lastly, much in line with its powerful IP rights-centric approach, the policy recommends that the unauthorised copying of movies be criminalised. No doubt Bollywood requires some protection from pirates, but criminalising what is essentially a civil wrong (much like defamation) is tantamount to killing an ant with an elephant gun, not to mention the potential for abuse at the hands of our police.

A short-sighted policy



Indeed, the present policy could well be the classic poster child for IP formalism. We had expressed caution against such a reductionist view in the first draft of the IP policy formulated by a think tank (of which I was part). Unfortunately the government unceremoniously disbanded our committee after we submitted the policy and disregarded our exhortation to conceive of the policy as a more broad-based and holistic Innovation Policy.

Granted, India is lagging on several counts. When compared with its glorious past boasting pioneering innovations from the likes of Sushruta (the father of modern surgery) and Nagarjuna (metallurgy), India has hardly had any noticeable technological marvels in its recent history.

But is the problem with the country’s IP regime? Or does the malaise lie elsewhere? Could it be cultural, where parents put undue pressure on their children for that fat salaried job, as opposed to a risky entrepreneurial venture? The policy advocates that IP be taught in schools and colleges. But why? What we need in schools and colleges are courses on creativity, not on IP. Even if we lack resources to impart specific courses on creativity, let’s at least ensure that we don’t stand in the way of a natural flowering of creativity in our children. A truth tellingly captured by Mark Twain’s sentiment: “I have never let my schooling interfere with my education.” And one that is now being controversially tested by Peter Thiel (PayPal’s legendary founder) who pays college students to drop out of college and run risky ventures.

Unfortunately, notwithstanding some of its praiseworthy proposals, such as expedited examination, an IP exchange and the proposal to encourage Corporate Social Responsibility funds into open innovation, this much-awaited IP policy is terribly short-sighted.

Many decades ago, a two-member committee (headed by Justice N.R. Ayyangar) conceptualised a patent policy that formed the blueprint of the present patent regime. It was one that triggered the remarkable growth of our pharmaceutical industry, enabling it to earn the moniker “pharmacy of the world”. It was a policy that was thoroughly researched, empirically validated and elegantly written in a little over a year.

Compare and contrast that with the present policy that took more than two years and two separate think thanks to come to fruition. One beset with banality, dogged by dogma, rife with ridiculous assertions, lacking in any credible empirical support, and written in language that, at best, mimics a masterful memo from one babu to another.

I began with a paradox. Let me end with one. While proudly proclaiming the slogan “Creative India, Innovative India”, the policy states: “There is an abundance of creative and innovative energies flowing in India.” A sheer pity that none of that abundant creative energy made it to this policy document, rendering it rather dreary.

Shamnad Basheer is the Honorary Research Professor of Intellectual Property Law at Nirma University and the founder of SpicyIP.