Friday, September 12, 2008
Wednesday, September 3, 2008
Intellectual Property Rights: A Socio-Economic Perspective
Intellectual Property Rights: A Socio-Economic Perspective*
The journey into the third millennium is marked by certain fundamental shift in the trends and trajectories of human civilization. Arguably along with globalization of trade, and Information and Communication Technology (ICT), the regime of Intellectual Property Rights (IPR) comprises one of these milestones. This phase of rapid globalization is often depicted in terms of the movement of society from an industrial economy to a knowledge economy. The creation of a knowledge society only distinguishes itself from previous epochs in terms of production, distribution and exchange of materials but simply because its use of knowledge both as a resource and realization. Needless to add, this logic brings us to the issue of protecting this knowledge resource and securing its best. In contemporary literature this debate has been captured as perspectives of IPRs.
Intellectual Property is broadly defined as intangible properties that are essentially creations of the mind, related to pieces of information, which can be incorporated into tangible products. Protection of IP is conferred on ideas, technical solution or other information that have been expressed in a legally admissible form (UNCTAD)[1]. The essence of IPR is to grant the originator of an IP an exclusivity of its usage to the extent of its commercial exploitation the way the originator wants so that there is an incentive to create and commercialize ideas, while ensuring that society is also benefited by such a commercialization of ideas and innovations.
Having said the above, it is apt to comment that Intellectual Property Rights and the basic human nature of possessiveness go hand in hand though at times human nature is a great antagonist of the group or community of the human beings, itself. This natural contradiction necessarily entails a study into the social behaviour which incidentally is the rationale behind various justificatory theories in favour of the strong IPR regime. At the same time it also necessitates a look into the welfare and common good of the community at large. As the world dawns into the era of global community it can not jettison its roots itself which can better be described as social welfare.
In such a scenario the obvious subject of inquiry for the sociologists is as to whether a strong IPR regime affects the issues of equity, social welfare and community feelings. For an objective answer to the aforesaid subject of inquiry the three issues need to be examined separately. The classic nine principles of equity which are nothing but the guidelines for a regulated way of life suggest that the IPRs being fruits of labour of the originator need to be protected for such an originator and hence if the originator claims the proprietary rights over the originated subject, no principles of equity seem to have been breached. At the same time however, when the IPR regime is examined from the yardstick of social welfare the answer seem to be falling in a twilight zone since the society where the originator belongs definitely contributes to the origin of the subject of IPR claimed by an originator. As regards community feelings the rights claimed by one has since time immemorial been a subject of jealous competition from the rest of the world.
SOCIOLOGICAL INSIGHTS
Another subject of inquiry for sociologist is whether a strong IPR regime would create a divided world thus perpetuating the rift between the haves and have-nots. This subject of inquiry has always been debated from both the sides and no objective view prevails. Have-nots have always complained about the appropriation of exclusive rights by the haves though the have-nots have either been the subject of test like guinea pigs or even the source of inspiration i.e. genesis behind the creation of subject of IPR claim.
Taking a little liberty to expand the C K Prahlad's Bottom of Pyramid[2], it would be apt to describe the situation as have-nots playing by the rules of haves though the former would be deemed have-nots only. The objective analysis of the situation however necessarily leads us to the conclusion that somewhere down the track even these so called have-nots are themselves responsible for this situation. Is it not that the strength of the character, as compared, of the have-nots is a little weaker than the haves. The have-nots don't seem to work towards their betterment so that there could be a revolution of the human spirits. After all only the change in the attitude would bring about an upward movement. Hence it ill behoves on the part of the have-nots to contend that the centralized business is being run by the haves to the extent of even appropriation of Intellectual Property Rights by haves.
The above justificatory arguments would suggest that the strong IPR regime will lead to greater protection of knowledge and may be even innovation but at the same time the exclusivity of rights ardently advocated by the strong IPR regime leads to knowledge capitalism and knowledge entrepreneurship. Whether the societies in the world are prepared for such a model of socio-economic relationship between and amongst themselves is a question which impels a serious re-look into the social structure in the new world order. Therefore the talk of global citizenship and the strong IPR regime appears to walk in a precarious plank.
An IPR regime monopolized by MNCs and propelled by Information Communication & Technology are not found to cater to the needs of common men. Despite legislation and regulatory framework to provide for corporate governance and more specifically corporate social responsibility it has always been endeavour of the MNCs across the globe to somehow avoid contributing something for betterment of the society, let alone complying with the provisions existing in the books. Recent example of grimace of the India Inc. on the affirmative actions as suggested by the Parliament is a glaring example to buttress this argument. In such a scenario giving a free hand to the MNCs even with respect to the IPRs may only lead to further rifts in various segments of the society which can be viewed as a kind of 'gap' in the whole social structure which if seen globally may create 'gap' in whole world order.
The development and growth which does not take care of the masses would be akin to commercialization without actually benefiting the participants of the process of commercialization at the grass root level. Such commercialization which is driven solely with the motive of profit making always has a tendency of monopolization as opposed to a healthy competition. Such an economic structure leads to cartelization in the field of knowledge and thus paving the way for creation of a possible Frankenstein[3].
The problem of 'gap' viewed in the global perspective has already led to and would further embolden hegemony, corporatism of the nation states and eventually dismantling of nation-states. Such a world-order would only be ready to put a question mark over the sovereignty of smaller states. In such a system once again the issues of personal liberty, human rights of individuals and issues of ecology and space would become mere topics of discussion in the academic world which would be completely bereft of any meanings in the real world. Thus let the representation of reality better be not talked about by the Intelligentsia who actually are the players in the world of IPR.
Taking Habermas[4] a little further it would be apt to comment that the real intellectual capital would only thrive where the system enables the public at large, haves and/or have-nots to discuss and share the information with each other and where there is no room for any asymmetric information. After all, social equality and free public speech is the ultimate test of intellectual world where the existence of the IPR world is being propagated by the world institutions including WTO and WIPO. Perhaps then and only then existence of a vibrant and active civil society can be realised as it is to a great extent dependent upon effective communication without any 'gap'.
Such effective communication without any 'gap' would be possible only when such rules are set which can break the knowledge barrier between public and private sphere and the individual and social spheres alike. Such an ideal state may be realised when IPR is deemed as a policy instrument for governing the relationship between the abovementioned different spheres.
INTELLECTUAL PROPERTY AND THE WORLD AS A SOCIETY
Intellectual Property Rights as policy instrument in this new socio-economic, techonolgical sphere should be used for furtherance of peace, prosperity and human happiness across the world rather than as a policy instrument for coercing either the have nots whose jobs have been reduced to mere inanimate machines at the hand of the haves who appropriate all the fruits of intellectual property that should actually belong to these "inanimate machines" or at the international paradigm in this era of globalisation the under-developed and developing world. The developed nations, the WTO and the WIPO must take the circumstances of poor countries and their development needs into account when seeking to develop international IP systems. It is this reason which prompts one to support the whole idea behind right to development. Let this right to development asserted by the other world penetrate upto the people for whom it is intended and let the WTO take note of the fact that in this intellectual age when the world cares for right to development it can not achieve its goals unless a suitable IPR policy is framed since it is one of the most important cogs in the wheel of such a development. In such an IPR policy the developing nations should be able to take advantage of the flexibilities built into the international TRIPS treaty. TRIPS need to be applied subjectively depeding upon the development index of the nations. It would not be out of place to state that even the developing countries need to shape their IP laws to promote development generally and keep in mind some of the negative impacts of overly generous IP protection.[5]
While we crave for a strong IPR regime to facilitate innovation, growth as well as development let these development be not done at the expense of the common people and have nots. Let there be an overall development where even the havenots benefit and whereby the "gap" can be reduced. Let the new policy instrument not be to the detriment of the consumer or to prejudice of trade as well. Let there be a balanced growth. It will be apt to quote R. A Mashelkar "before we protect IP we must generate IP which is worth protecting"[6].
Let the rules governing this new socio-economic-technological sphere be such as to ensure fair play, liberty and above all social control. Rules are after all meant to serve this very purpose only and therefore in the wild race of strong IP regime lets not forget that the welfare of the society rests upon a set of well-defined rules and regulations whose ultimate aim is to serve the good of the society. Though in this era of globalization where the whole world is one big market place the protectionist tendencies are inevitable yet the knowledge capital cannot be reduced to a mere thing of commerce. The universities which were once heralded as greatest public institutions have actually been reduced to laboratories of MNCs and thus patently moved away from their doctrine of being public institutions and centers of public knowledge. To take the example of present system of legal education one can certainly say that the commercialization has actually penetrated into the educational streams since the corporate houses allure the students by their exploitative policies of "catching the workers young" because of which increasing number of students are opting for commercial laws. As a fallout of such phenomena those stream of legal education which cater to the masses are generally sidelined even in the law schools. Strong IPR regime cannot be allowed to thrive at the expense of such a distortion of the institutions of learning since it is these institutions of learning and research where Intellectual Property would develop. The public institutions as they have been recognized by the whole intellectual world should only work for greater cause of the public which would be served only when the research and developmental activities that take place in such institutions and universities are undertaken with a clear cut aim of good of the masses (even have-nots) right from the inception.
Though this argument is loaded with the spirits of contradictions, yet a line has to be drawn from where the commerce could be separated from the knowledge capital. The knowledge capital has always been a capital which can better be called as res publico. Though as the world grows there has been a shift of domain as well as paradigm of this knowledge or intellectual capital, but then the drawing of the line needs to be reiterated even in the shifted paradigm. Though entrepreneurs have always emphasized upon the argument of reaping of profits of one's own intellectual input but then how about the intellectual inputs of the employees working under such entrepreneurs? Can these entrepreneurs actually and ethically buy the intellect of the employees working under them for some salary which can never be equated with the invaluable intellect that has gone into creation of such "product of IP" by these employees? Would such an IP regime help in reducing the poverty and unemployment? Can every bit of knowledge and creative expression be privatized?[7] Can an innovation which has been developed solely for the society to cure diseases like AIDS in South Africa by using the resources from the society (human beings subjected to placebo test by companies like Pfizer) be monopolized against the economic interests of the society? Can the farmers in developing nations subject to commercial exploitation by monopolization of otherwise the things of common knowledge (e.g. the medicinal properties of turmeric)? Such questions inevitably lead us to the conclusion that some kind of balancing is required so that the "gap" created by asymmetric information between haves and have-nots of the "gains of intellectual property rights regime" as opposed to the "Intellect per se" can be reduced by regulatory efforts. Such regulation which would neither compel the knowledge entrepreneurs to engage in altruism but at the same time could at least mandate such entrepreneurs to follow a balanced approach and so that the desire to profit may not be marred by the desire to innovate.
IPR IN CONTEXT
The illustration of the efforts of Lee Iacocca[8] would perhaps be very apt to explain the idea of such a regulatory effort, which can balance the paradox between the antagonisms of human nature of possessiveness with respect to the strong IPR regime. When only two players viz. GM and Ford were running the show, besides implementing some stiff regulations including knowledge sharing the Chrysler was offered loan by government solely with a view to keep a healthy competition in automotive segment. It would not be a mere cliché to state that the revival of Chrysler remains a subject matter of history for the years thereafter. The central theme of such regulation should be that knowledge barrier ("gap") be reduced and some kind of affirmative action as in the case of Chrysler for the other players including have-nots be done by the Government so that there may be a healthy competition and even the have-nots could come forward as a competitor in this new social order. The countries definitely need to shape up their laws and regulatory measures in general in such a way that development may be stimulated in the interest of have-nots within their own country. Though certainly such goals of overall development within a nation can not be realized unless there is some international funding and specific initiatives to support research into areas that lack a lucrative market. The international policies need to be framed in such a way that human right to development may be regarded as a fundamental right of the nation states.
Though some regulations even outside the 'IPR system' may make the knowledge entrepreneurs/capitalists to use the knowledge and wealth in promulgating peace, prosperity and human happiness across the world yet would such regulation be really effective in the world order given the reality of realpolitik and soft law called International Law does not really need a Solomon to answer the question. Until some such enforceable regulation are in place creating a level playing field for corporates, entrepreneurs and capitalists i.e. the 'haves' as well as the ordinary law abiding citizen, the IPR regime can not be said to homecentric in nature and harmonious to society.
* Tapan R. Mohanty, Asst. Professor, National Law University, Bhopal and Ajay Brahme, Advocate
[1]http://www.unctad.org/Templates/Search.asp?intItemID=2068&lang=1&frmSearchStr=Intellectual+Property+Rights&frmCategory=all§ion=whole (Viewed generally and accessed on March 13, 2007).
[2] The Fortune at the Bottom of Pyramid: Eradicating Poverty through Profits: C.K. Prahalad; Wharton School Publishing: 2006 (Generally referred)
[3] Frankenstein: Mary Wollstonecraft Shelly; Courier Dover Publications: 1994
[4] Theory of Communicative Action; Polity Press London; 1997
[8] Iacocca: An Autobiography: Lee Iacocca with William Novak; Bantam; Reissue edition (June 1, 1986)
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