Don’t confuse patents with innovation

The announcement of the National IPR Policy is something of a missed opportunity. What the Government should have delivered to the Indian people is a ‘national innovation policy’, in which intellectual property rights would have a place, but would not consume the entire foreground of the picture.

Too much of the new policy is about “educating the general public on ills of counterfeit and pirated products”, and other such rhetorical matters, which would be music to the ears of the American culture industries, but unrelated to actual technical, industrial, or social innovation.

With the exception of the statement of support for the promotion of “Free and Open Source Software along with adoption of open standards”, in clause 5.12, no part of the new policy reflects any of the myriad ways in which sharing, rather than owning, knowledge is the actual basis of technical and industrial innovation in today’s world.

The IP fetish With respect to traditional knowledge, and other crucial components of a distinctively Indian “knowledge economy”, the policy assumes that monetisation is the goal of social action. But monetisation is only one aspect of the successful employment of a nation’s stock of past and present inventions, and not the most important.

The gravest danger arising from the emphasis on “monetisation” of traditional knowledge is that non-Indian interests will patent and monopolise benefits derived from Indian traditional knowledge not only elsewhere in the world but even here. This will prevent innovation based on traditional knowledge, depriving Indian society of the fruits of its own past.

Instead, a true national innovation policy would provide ‘share and share alike’ protection for all IP based on or derived from traditional knowledge. This approach, modelled on the ‘copyleft’ used in free and open source software (whose power for innovation the policy already acknowledges) would create a strong ‘future commons’ for traditional knowledge.

The policy’s other basic defect is that it takes for granted that the degree and extent of innovation in society can best be measured by quantifying property rights: the number of patents applied for or issued, the amount of ‘intellectual property’ collateralising ‘IP-friendly loans’, etc. This tendency to assume that more patents equals more innovation is indefensible.

Is India more innovative if hundreds of thousands of patents are issued to foreign corporates for existing innovations already patented elsewhere? Or, if the number of copyrighted foreign entertainment videos, protected by “digital rights management” technologies inhibiting access by the poor, goes up?

When the Massachusetts Institute of Technology made its entire curriculum — teaching texts, problem sets, class notes — available through MIT Open CourseWare, on terms allowing everyone to copy, modify and share, the effect on Indian innovation was powerful and positive: engineering colleges throughout the country improved on MIT’s curriculum for the use of their own students.

Monopoly creation

There is a tendency to accept the argument that the success of wealthy societies points to the strength of their property doctrines. After all, if patents are a bargain in which inventors disclose their inventions rather than keeping them secret in return for long market monopolies over their ideas, shouldn’t that be the practice in India as well as the US, Europe and Japan?

In the era of globalisation, the answer is no. Every invention disclosed in a patent granted in the US is available immediately to every engineer, student and amateur inventor in India, through the internet, at zero cost.

The only local effect of an Indian patent on an invention patented elsewhere in the world is the the cost of monopolies imposed by the State. Encouraging Indian firms to file their patents in wealthy societies — where the market monopoly they are granted results in costs to those societies’ wealthier consumers — makes more sense at the national policy level than granting market monopolies to them in India, where only domestic consumers pay monopoly rents. Hence, the presence of section 3(k) in the Patent Act, prohibiting the patenting of software, does nothing to prevent Indian software majors from extracting rents from US businesses through US patenting of their software, while preventing IBM and Facebook from coming to India and patenting their software ‘ideas’.

Measuring the scale of copyright monetisation or counting patents cannot be a useful measure of innovation. The best quantitative measure of innovation is always increase in productivity, whether in agriculture, education, or in economic performance as a whole.

Choudhary is a technology lawyer and Moglen a professor of law and legal history at Columbia University

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