Is IP Another Bubble about to Burst? A View from Another Civilization

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As a child growing up in India, one of the first things I learned was a hymn to Saraswathi, the Goddess of Knowledge - 

“Wonderful is your gift of knowledge. The more we share, the more it grows, the more we hoard it, the more it diminishes.”

As a grown up living in a globalised world, I am constantly bombarded by the term “Intellectual Property” (or IP). Policy makers repeatedly say that India should create more IP. Countless seminars extol the virtues of IP, even as patents are granted, for example, for “Methods for Swinging on a Swing” and “Methods for Concealing Partial Baldness”. In the computer industry, patents are routinely granted for things that are obvious and have been known for years. Things have come to such a pass that even an industry veteran like Andy Grove was forced to say, “The value of an invention is its usefulness to the public. Patents themselves have become products. They are instruments of investments traded on a separate market, often by speculators motivated by the highest financial return on their investment...”

The patent product brings financial derivatives to mind. Derivatives have a complex relationship with an underlying asset. While there’s nothing wrong with them in principle, their unfettered use has damaged the financial services industry and possibly the entire economy. Do these patent instruments put us on a similar road? I fear our patent system increasingly serves those who invest in the patent products¬. Patents were meant to reward innovation, so the question is. “How did we lose our way?”

 

The current model of trying to “Propertize”, “Privatize” and “Commoditize” knowledge comes from a very mercantile reductionist model of treating knowledge. That may be ok for other countries which have “intellectually propertised” the knowledge and hold the balance of power in IP rights, but not for India which has had a long, rich tradition of free knowledge cultures like Yoga, Ayurveda, Mathematics and many other disciplines. It would not be far–fetched to say that many Indian traditions place a moral imperative on sharing knowledge. Each society evolves systems that suit its own needs. Most of India’s traditions of knowledge spring forth from a spiritual base, whereas America’s treatment of knowledge has a mercantile bias. This is not to pass a value judgment on either. The problem arises when, in a globalizing society, the two systems clash and are unable to harmonize with each other. One of my favorite stories illustrates the importance accorded to the sharing of knowledge. After the brutal battle of Kalinga, the Emperor Ashoka was so overcome with remorse that he renounced bloodshed and embraced Buddhism. As part of penance, Ashoka went to monasteries across the country. At each monastery, he would leave munificent donations of gold coins. At one monastery, the Emperor left behind one solitary gold coin. When his perplexed followers asked him to explain, Ashoka said that the abbot of the monastery was a great man but he did not share his knowledge with others.

                                                                                                                                                                                                                                                                                                                          This is a deep-seated ethos that is thousands of years old. This is the ethos that created open knowledge traditions like Yoga, Ayurveda, etc., that are freely used by all. However, when India seeks to use Western or “their intellectual property” (allopathic medicine, software and business method patents, etc) we are told, “pay up or else”! Talk about an unequal exchange! The contrast is best illustrated by what happened with Bikram Yoga taught by celebrity yoga teacher, Bikram Choudary, who makes a fortune teaching yoga to Americans. Bikram copyrighted a series of 26 postures and two breathing exercises practiced in a room heated up to 105 degrees Fahrenheit. Note that Yoga is a body of knowledge which has been free from copyrights, patents and “Intellectual Property” for more than 2000 years. When asked why, Bikram said that he sought legal protection because “it’s the American way”. Sadly, most of India’s thinking around legal protection of knowledge has been “derivatives” in nature, a shoddy cut-and-paste job from the “mature IP systems” of the West. However, as the Bilsky case shows [Bilsky v. Kappos, 130 S. CT.3218, 561, US 177 L. 2d 792(2010)], even these “mature IP systems” have second thoughts about how they treat knowledge, or in this specific case, business methods. I have argued before as well that the litigation-ridden path followed by the US for granting software and business method patents is something India must avoid.

I could go on, but let me just end with one small piece of evidence. As I mentioned earlier, I have grown up in an Indian tradition that believed that knowledge grows by sharing. Does this wisdom hold true in the Internet era? In September 1991, Linus Torvalds released 10,000 lines of code for building an operating system, under the General Public License. The GPL license encouraged people to take these 10,000 lines of code, modify it and share the resulting improvements with the rest of the world. A recent study by the Linux Foundation estimated that the code base for the Fedora 9 Linux distribution is now 204 million lines of code! This is one of the finest examples of collaborative innovation that has been made possible by the growth of the Internet. With 1.4 billion people connected to the internet and another 600 million set to join up in the next 2 years, the Internet is the greatest collaborative platform in the history of mankind. The attempt to “propertise” knowledge in the Internet era is therefore doomed to fail. Instead, we will see knowledge returning to its rightful place in the commons and the open source principles of collaboration, community and the shared ownership of knowledge being applied to thousands of disciplines. As the commercial distribution of Linux demonstrates, even when knowledge lives in the commons, it is possible to build profitable business models around it.

In future, when we look back on our times, we may find that the term “Intellectual Property” has taken its place alongside another archaic term “horseless carriage”. Both are attempts to impose metaphors of the past on the future. And the folly of our times is that we treat inexhaustible resources like knowledge as finite resources, and treat finite resources like oil and forest as infinite resources. The sooner we turn these attitudes around, the better it will be for the future of mankind.