IPR is a means, not an end

By: and |
Published: July 20, 2015 12:11:00 AM

The Indian government is preparing the National Intellectual Property Rights (IPR) Policy as a presumed base for the unleashing of Indian creativity that will drive...

The Indian government is preparing the National Intellectual Property Rights (IPR) Policy as a presumed base for the unleashing of Indian creativity that will drive the government’s development agenda. But as the first of many reports by patent lawyers and the lobbyists of MNCs begin to emerge, it is already clear that the IPR policy will be about propagandising the interests of global patent holders rather than the needs of Indian people.

Intellectual property is a means, not an end. However, one of the documents now moving through the policy process in Delhi claims, “an all-encompassing IP Policy will promote a holistic and conducive ecosystem to catalyse the full potential … for India’s economic growth and socio-cultural development.” It appears to suggest that it is not inventions that produce growth, but patents.

If we only believed enough in the patent law, we would somehow become more inventive directly. This fetishism, which makes the law applicable to IT and pharmaceuticals industry in other societies to be the true root of innovation in Indian society, is unrelated to reality. The numbers of patents issued is not a measure of the inventiveness of a society. The overwhelming majority of patent applications submitted to the Indian Patent Office are generated by MNCs, whose purpose is to extend their ownership of ideas around the world, not to increase Indian inventiveness, and also to earn royalties from Indian consumers.

If the number of patents held by non-Indian entities grew by an order of magnitude in the next decade, no genuinely Indian innovation would have occurred at all. The solution is not for Indian businesses to attempt to compete with their foreign rivals in the expensive prosecution of patent applications. An Indian national IPR policy should begin with the developmental benefit of sharing the world’s inventiveness with Indian citizens and businesses at the lowest possible cost. India should oppose no legal barriers to the use of the world’s best and most valuable ideas by Indian companies and citizens.

India should be the world’s leader in reducing barriers to learning and technical experimentation. Like all monopolies, “intellectual property” monopolies on ideas allow state-favoured owners to reduce output and raise price. But for a society profiting from a large population and an accordingly immense advantage in the “quantity” of human intelligence, monopolies on ideas are pure social loss.

Indian firms should be encouraged to patent their inventions abroad, and to use everyone’s else’s good ideas at home. The result of patenting abroad and limiting stringently the availability of patents domestically is to transfer both wealth and know-how “to” India from abroad, rather than to export royalties to foreign holders of local state-created monopolies, which is what the “all-encompassing IP policy” in the US and European model is designed to do under Indian circumstances.

Eben Moglen is founding-director of Software Freedom Law Center and professor of law & legal history at Columbia University. Mishi Choudhary is technology lawyer and executive director at SFLC.in

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