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Intellectual Property – Re-evaluate!

, April 9, 2013, 7 Comments

It’s been all over the news – India’s Supreme Court struck down the patent appeal by Novartis, a Swiss pharma company, for a new crystal form of its anti-cancer drug Glivec, stating the modifications were not novel enough to deserve protection. Subsequently, much has been said on both sides – IP warriors felt outraged by the “theft” of Novartis’ intellectual output, while public health activists rejoiced over the victory of the “Aam Aadmi” over Big Pharma.

Whether pro- or anti-Novartis, one defining characteristic of the media coverage on this question has been the obsessive focus on just one or two aspects of the issue, collapsing the nuances of the IP concept into a unidimensional yes-or-no question about rights of companies versus the rights of patients. A better alternative would be to follow the debating techniques of Vedantic philosophers, who would make arguments for or against specific ideas from different starting points, such as scripture, logic and practical wisdom. Each starting point was called a Prasthana, and each Prasthana was shown to lead to the same conclusion. So what Prasthanas can we approach this patent question from?

Prasthana 1: The argument from Liberty
The majority of young people are gung-ho for IP law, because they believe that intellectual property is just like any other form of property, like a plot of land or a car. This simplistic definition allows IP warriors to frame any violation of IP protection as “theft”. When you examine it closely, however, the facade falls apart. If property is defined as something that can be possessed, and another person, if he takes over that possession, leaves the original owner without the possession, then ideas are not property. IP is really a monopoly created by Big Government, using its brute power of coercion to prevent people from acting as they please.

Imagine you are a hunter-gatherer somewhere in the Andamans. Your tribe is hungry, and the only thing in sight is a coconut grove. But those delicious coconuts are so far away, how do you get them? Suddenly, one of your acquaintances realizes that he can get the coconuts to fall by throwing rocks at them. He starts doing it, and eats his fill. What next? Now, it is a human instinct to learn by imitation – everyone with half a brain would start throwing rocks at the coconuts. But then the Big Chief, the Headman, steps in and says that you cannot copy the stone-thrower. He invented the technique, now he alone can be allowed to throw stones at trees. That is precisely what Big Government is doing when it comes to preventing people from copying ideas.

Prasthana 2: The argument from Societal Fairness
The American social scientist Charles Murray recently published a book titled Coming Apart, where he noted that White American society was cleaving into two – an upper elite group that was industrious, academically proficient, and generally successful, and a lower class that seemed to regress further with every generation. Based on his insights regarding social hierarchies, it could be stated that intellectual “property” is a tool used by the elites to wage a class war against those below them – by virtue of their higher intelligence, and their access to better education and funding opportunities, the elites are likely to be the ones who come up with brilliant ideas that can be converted into patents.

Although meritocracy is a wonderful thing, it cannot be denied that over time, meritocracy will result in social stratification and extreme inequality. If we are to stay cohesive as a society, we must, within the limits of fairness, do what we can to ensure that having a few extra IQ points doesn’t allow one to accumulate a hundred times as much wealth as his neighbor.

Of course, this does not mean going full-bore JNU jholawallah (a long-haired, annually-showering, guitar-playing, chappal-wearing, ganja-smoking, Kafila-reading Naxalite who assassinates capitalist pigs in his spare time). In fact, IP, being a blessing bestowed by big government, could actually be seen as something more Statist than Capitalist. And it also systematically favors larger, established companies over small startups.

Prasthana 3: The argument from Utility
Utilitarianism, the reigning moral philosophy of our age, especially amongst the Anglicized elite, requires us to do a cost-benefit analysis before making a decision, with the primary goal being to minimize harm and maximize pleasure for as many people as possible.

First, IP laws came about in order to encourage innovation. Governments agreed to grant innovators some limited period when they alone could monopolize their invention, hoping that the payoff from successful inventions would spur more people to innovate. To be fair, this has been pretty successful in many fields. The question is whether the absence of IP law would actually stifle innovation. But university-affiliated researchers generally publish their research in the open domain, and it is obvious to any one involved in the sciences that there are as many revolutionary innovations emanating from universities as there are from corporations – Nobel prizes are not the exclusive preserve of corporate R&D departments.

Secondly, in this specific instance, we have the question of whether allowing Novartis to profit from its efforts is more beneficial for society than allowing thousands of cancer patients to get life-saving drugs at a cheaper price. For India per se, this should be a no-brainer, given that Novartis’ profits are not going to Indian citizens, while the drug’s costs will be borne by our citizens.

Prasthana 4: The argument of the Deserving Candidate
Perhaps the strongest thing that can be said in favor of IP law is that the inventor deserves some benefit for the effort that he put in – because if he wasn’t going to get anything out of it, he might as well have spent his time and energy on something more fruitful. This does have the effect of tugging at our heartstrings, making even the most bleeding-heart liberal out there reconsider her opposition to big bad pharma companies.

This argument, though valid, ignores the fact that the poor sap put in all that effort only because the government stepped in, distorting the market and assuring him returns from a mere idea – something that would never occur in a state of nature. If not for this distorting influence, he would have focused his efforts on something else. Or spent the time vacationing with his wife and kids.

Prasthana 5: The argument from Indian History

The idea of Intellectual “property” is entirely antithetical to Indian cultural history. The intellectual class, whether Vedic Brahmins or Buddhist monks, was always expected to live in poverty, not to profit from their learning. There is an old saying to this effect, that Lakshmi, the Goddess of wealth, and Saraswati, the Goddess of learning never stay in the same house at the same time. Even during the heyday of Takshashila, India’s oldest university, knowledge was considered too sacred to be exchanged for money – gurus taking fees for education were vigorously condemned.

In more recent times, we have seen Yoga being profaned by trademarks such as “Bikram Yoga”, which attempt to turn thousands of years of Hatha Yoga tradition into something that one man owns and profits from. In 1995, WR Grace & Company was granted a patent on an antifungal agent derived from the Neem tree, since they claimed that no prior scientific publications had dealt with Neem’s effects. Every Indian father has fed his children tender leaves of the Neem tree for generations, but this was considered too unsophisticated for the suited-booted-dented-painted ladies and gentlemen of the Patent industry.

And that brings us to…

Prasthana 6: The argument from naked Self-Interest

India never offered patent protection for chemical compounds, but was forced to do so upon entering the World Trade Organization some years ago. It should be obvious even to the most hardheaded IP-lover that India is poorly positioned to benefit from Intellectual “property” law enforcement. Our higher education and R&D architecture is nowhere as well developed as that in Europe, the US, Japan or even China. It will take us several decades to reach that level of research proficiency, assuming it is even possible. Therefore, for the foreseeable future, we will be consumers of intellectual output produced by the rest of the world. As a country, we will be shooting ourselves in the foot by forcing Indian citizens to pay royalties for every other technology, TV show or song.

The sentiment against IP law is particularly strong among the youth in the US and Europe, as can be seen by anyone frequenting youth-heavy websites like Reddit and 4chan. Some months ago, Derek Khanna, a young staffer of Indian origin, raised very valid points against intellectual property in a memo for the Republican Party in the US Congress.Freedom advocates everywhere were overjoyed to see their talking points reach the mainstream, but a swift response from Hollywood and media companies ensured the memo was dead within days.

The dialogue in India on IP is still muted, for a variety of reasons. As more people become aware of what’s at stake, it is hoped that this will change.

About author
Anand is a medical graduate (MBBS) from the All India Institute of Medical Sciences (AIIMS) in Delhi and currently resides in the USA. ...more