C3S Paper No. 0152/2015
Courtesy: The Hindu
Diversity in Intellectual Property – Identities, Interests and Intersections; Eds Irene Calboli and Srividhya Ragavan, Cambridge University Press, $150.
This book expands the boundaries of intellectual property rights to include not just economy but also arts, culture and heritage.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is a controversial and also misunderstood agreement. It was controversial among developing countries when the advanced countries led by the U.S. viewed it as a “one-size-fits-all” arrangement for transfer of technology to be adopted by everyone. Advanced countries misunderstood it as they failed to take note of the flexibilities necessary to facilitate development and to protect public interest.
There was growing dissatisfaction among developing countries over the manner in which it was sought to be interpreted and thrust on them. They persisted in their efforts to chip at and dismantle its asymmetry. Surprisingly, the earlier rounds of Uruguay negotiations had built in adequate provisions to ensure flexibility, balance and sustainability. The Preamble spells out the goals which include reducing distortions and impediments to international trade, promoting effective and adequate protection of intellectual property rights, and ensuring that measures and procedures to enforce IPRs do not themselves become barriers to international trade. Article 7 sets out the “objectives” which include ‘a balanced approach to IP protection in the societal interest, taking into account the interests of both the producers and users.’ Article 8 details the “principles” which inter alia recognise the rights of Members to adopt measures for public health and other public interest reasons to prevent abuse of IPRs. Successive WTO Panels ruled that the Preamble as well as Articles 7 and 8 were to be borne in mind when examining the substantive rules of the TRIPS. One of the earliest rulings of a WTO Panel was that the Agreement “…is not to be read in clinical isolation from public international law”.
As far as TRIPS goes, the Doha Development Round marks a watershed moment. The Doha Declaration closely follows the Vienna Convention on the Law of Treaties and stipulates, “In applying the customary rules of interpretation of public law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles”. The net result of was that the TRIPS was liberated from the straitjacket into which the U.S. sought to restrict it. It is better seen as an arrangement that permits diversity of regulations; even as TRIPS itself is seen as narrow in scope and inadequate to cover all interests.
The book under review examines the growing diversity in intellectual property rights (IPR). It is edited by Irene Calboli and Srividhya Ragavan who are professors of law in leading U.S. Universities, with legal specialists and jurists also contributing. Ragavan had earlier written a book (Patent and Trade Disparities in Developing Countries, OUP).
The prevailing notion of IPR is bound by economic parameters such as incentives and commercialisation of IP as intangible assets, and “is no longer sufficient to comprehensively explain the multi-faceted complexity of diversity-related interests”. While expanding the horizon, the book goes beyond to promote disruptive thinking. It expands the boundary by covering identities, interests and their intersections, and also includes arts, culture, heritage, minority groups and regional mores.
The first chapter by Prof. Susy Frankel sets out the broad themes explaining how attempts at uniformity have not been supportive of cultural diversity. She explains how WTO’s Panel reports have not fully covered the Objectives and Principles enshrined in the TRIPS. The close link between cultural identity and economy is ignored in modern IP laws, which are driven directly by economic rather than cultural aspirations. There is erosion of national cultural identity. Geographical Indication (GI), which aims to protect traditional knowledge, has been of limited avail. As she says, “cultural identity is a concept that ‘bumps into’ intellectual property both directly and indirectly.”
‘The Miracle at Marrakesh’ (Chapter Two) narrates the success of the Marrakesh Treaty, which facilitates visually handicapped people to access copyrighted documents. The U.S. opposition is captured well.
The next chapter focusses on the operational and economic norms of the informal economy, a growing phenomenon in developing countries, and pleads for a place for these ‘underground’ operators.
Yogesh Pai offers a fascinating account of India’s battle against two drug giants, Novartis and Bayer. The former conflict on denying patent for a cancer drug and the latter for ‘compulsory’ licensing. Pai details the scope and purpose of Indian laws on drug patents and mentions the landmark judgments of the Supreme Court. This is one of the best accounts on the issue read by this reviewer so far, and may go a long way in disabusing the prevailing misunderstanding.
Chapters Five and Six are better read together. They deal with laws offering protection to racially biased or anti-feminist trademarks. It took several years of litigation in the U.S. to get rid of them. The next chapter explains how ethical and moral concerns permeate patent legislation in Europe.
Shubha Ghosh raises a very esoteric, if important, issue on genetic research undertaken on a small group with Jewish ancestry. A U.S. company — Myriad Genetics — obtained a patent based on such research. While such research on ethnically, racially, or culturally different groups of people may be useful, Ghosh questions the validity of patents granted for the genetic tests conducted on them.
Justice Prabha Sridevan gives a detailed account of Hinduism and its approach to property rights, drawing upon several Vedic and Upanishadic texts. The concept of private ownership is unknown as is authorship. Knowledge is passed on to “the one who deserves the knowledge”. Commercial motive is abjured and tradition valued.
Prof. Peter Yu devotes Chapter 12 to the impact of Confucianism on IPR. His endeavour is to disabuse the notions of some Western analysts that Confucianism has resulted in large-scale patent piracy. He argues that this is in line with some recent stereotypes about Asian values, and says that Asian cultures are too diverse to be neatly categorised.
There is a disturbing chapter on copyright law that leads to commoditisation of sex. Prof. Ann Bartow offers a harrowing account of the legal situation in the U.S. where pornography is legally permitted while prostitution is banned. She details the judicial pronouncements to explain how the situation came about, and makes a strong plea for stopping copyright protection for pornography.
Haochen Sun’s treatment of trademark protection for luxury brands is extraordinary. Sun wonders whether there is anything distinctive about these products, especially their marking or colouring, to deserve protection. Luxury brands are bolstered in part by trademark protection and in part by excessive legal battles to defend their rights. Sun argues strongly for denying them copyright protection.
Chapters 21 and 22 handle issues governing ‘safeguards’ to intangible cultural heritage (ICH). The former deals with broader issues while the latter concerns Mediterranean diet. The analysis is about the 2003 Convention for Safeguarding of the Intangible Cultural Heritage (CSICH). Both follow similar lines of thought. At one level, there is excessive zeal; at another, the objectives are blurred. As Anton argues, “… intellectual property law remains an odd instrument to provide incentives for environment and heritage conservation.” Tomer Broude adds a similar caution against rushing towards new additions as ICH. The last chapter pleads for protection of Indonesia’s traditional arts but leans more on other promotional measures by the government to save them.
This book is a valuable contribution, which seeks to widen the trade-related aspects of intellectual property rights (TRIPS) to encompass many other areas.