Will India succeed in keeping yoga in the public domain?

It is a sign of the predatory nature of markets today that a tradition that goes back 4,500 years now needs to affirmatively defend itself as a common legacy of humankind. Yes, the latest endangered resource is…. yoga.

Yoga was developed in India as a physical and spiritual practice for everyone. The breathing known as pranayama is perhaps the most elemental aspect of human existence. But wouldn’t you know it…. all sorts of scheming entrepreneurs now want to convert yoga into “intellectual property.”

The pioneer in this endeavor was Bikram Choudhury, born in Calcutta, who came to the U.S. and began to franchise his trademarked yoga studios with his own distinctive adaptations of the ancient practice. Bikram’s claimed a copyright in his “original” sequence of 26 postures that his clients perform in 105-degree rooms. Anyone who “stole” his copyrighted yoga postures for commercial purposes would then be liable for damages, he claimed.

As I blogged in 2005, a federal district court actually refused to dismiss a lawsuit brought by a group of yoga studios that practice Bikram-like methods. They banded together as Open Source Yoga Unity (inspired by the example of open source software) to seek a declaratory judgment prohibiting Bikram from shutting them down. Amazingly, a federal judge allowed the suit to proceed, ruling:

[Open Source] has provided no persuasive authority that a compilation of yoga asanas cannot be protected under the copyright laws in the same manner as other compilations. Therefore, if the trier of fact determines that a sufficient number of the individual yoga asanas are arranged in a sufficiently creative manner, copyright protection for the yoga sequence would be available.

The case eventually settled, and it appeared the Bikram yoga and the other, public-domain variants could successfully co-exist. Choudhury now has more than 400 licensed yoga studios around the world, and is said to be worth $7 million.

Apparently, the venerable yogis in India – perhaps taking a cue from fellow Indians who have seen agricultural seeds patented by Monsanto and other multinational corporations – decided to take matters into their own hands. As reported by the Washington Post, a group of Indian yogis from nine schools and 200 scientists are mounting a massive effort to document more than 900 yoga postures, complete with a video catalog of 250 of the most popular ones. The idea is to scan the ancient texts that compile the original yoga sutras, so that a body of “prior art” will exist to thwart an attempts to patent the yoga postures.

I’m a bit confused about the fear of patents. Although the U.S. Patent and Trademark office has granted more than 131 patents on the subject of yoga, according to the Post, these are mostly for books and yoga mats. There are some 3,700 registered or pending trademarks on file, but none for specific postures or variations of postures. As for copyrights, the Bikran Choudhury case seems to have been an aberration.

Still, one can never be too safe these days in trying to protect the public domain of tradition and knowledge. India’s Traditional Knowledge Digital Library, an official government agency, says that it has undertaken the cataloging effort after a number of U.S. companies said they wanted to copyright or patent “their” versions of yoga. Also, yoga has gone mainstream in a big way. There are now countless merchandising schemes – for clothing jewelry, cookbooks, retreats, camps, magazines, etc. – that invoke yoga.

The story of when West meets East: collective traditions and resources must be converted into private property, all part of the American dream of monetizing anything, ostensibly to advance human progress.

The Traditional Knowledge Digital Library is understandably wary of what intellectual property attorneys may come up with. After all, IP lawyers have successfully asserted private property rights in three musical notes (the NBC chimes) the smell of freshly cut grass on tennis balls (a trademarked scent), and even 273 seconds of silence (John Cage’s experimental “composition” 4’33”). In India, patents have been asserted for the neem seed and many common crops.

As reported by the Post, V.K. Gupta, the head of the digital library, said: “Yoga is collective knowledge and is available for use by everybody no matter what the interpretation. It would be very inappropriate if some companies try to prevent others from any yoga practice, even if they call it some other name. So we wanted to ensure that, in the future, nobody will be able to claim that he has created a yoga posture which was actually created in 2500 B.C. in India.” The yoga catalog now being prepared is in Sanskrit, but it will be translated into English, German, French, Spanish and Japanese. The idea is that U.S. and European patent offices will be able to use the catalog as a justification for denying patent applications for yoga postures.

It’s sad to think that the world has come to this, but protecting our shared inheritance is now a shared, affirmative obligation. Just look out the window at the sky, and realize how it is becoming a privately owned waste dump. The sooner we acknowledge that we live in the Age of Enclosure, the closer we will get to developing the legal mechanisms and social norms for protecting that which belongs to all of us.