IP and Social Development: A 3-D Frame?

1. IP and Social Development: A 3-D Frame? ShamnadBasheer Honorary Chair Professor of Law, INLU Founder, SpicyIP IP and Development WIPO, Geneva 7th April 2016

2. A 3-D Frame? • “Development”? • Freedom (Amartya Sen) • Happiness (Bhutan: GDH) • Good Living (“Buen Vivir”): Ecuador • Contested Contours! • Social Development? • Overall Societal Well Being • Human Development • 3-D? • Diversity (Vs Uniform IP regime) • Democratisation (VsIP Priesthood) • Distributive Justice (Vs Productive Efficiency)

3. Rescripting the IP Narrative! • Frozen: Biggest Hollywood Blockbuster • Re-script: From Villainous Queen to Complex/Tortured Hero (Jennifer Lee) • IP: Black vs White • Broken Record! • 50 shades of grey? • Re-scripting? • Pluralism • Diversity

4. Rebranding “Intellectual Property” • “Property” • Powerful Narrative • But IP vs Real Property • Non-Excludable/Rivalrous • Unclear Boundaries • Uncertainty • Lottery! • Monkey Selfie: Intellectual? • Relabel as: “Regulation of “Distinctive Info” • RDI Law

5. From Exclusivity to Equity • IP Statutes: Exclusivity • US Constitution • But what of equity? • No injunctions • Public Interest/Irreparable injury • On going royalties • Judicial Compulsory Licences! • Future: The End of Exclusivity? • Compensatory Commons?

6. A Compensatory Commons: Distributional Justice? • Compensatory Commons • Where no “exclusivity”, but take and pay philosophy • Exclusivity vs Commons • “Middle Path” Approach • Compulsory Licensing: • Innovation Incentives? • Distinct Markets? • Consumer Welfare • Distributional Justice/Equity • 3 billion on cancer drugs (wasted vials!)

7. Distributive Justice • IP = From Saraswati (Knowledge) to Lakshmi (Wealth)? • Whither Distributive Justice? • Murugan • Sarakshmi to Sarumi! • Most of the worlds’ problems: Distributional • Drug Wastage • 3 billion on cancer drugs (wasted vials!)

8. Diverse “Informal” Innovation? • IP regimes: Premised on the “Formal” • “Innovation is the whim of an elite before it becomes a need of the public." - Ludwig von Mises • What of Informal Innovation? • Grassroots Creativity! • Incentives? • Divine Channel? • Mallesham • Compassion?

9. Diversity and Democratisation • Plurality of Approaches • Thomas Edison vs Jonas Salk • But pressure to patent (Indian “Bayh Dole” Act) • Human Development • Freedom (Sen) • Self Actualisation (Maslow) • Buen Vivir (Good Living) • Godzilla vs Jugaad? • Small is beautiful (Schumacher) • Accommodate More Perspectives! • Democratise the Discourse

10. Edison vs Tesla • Tesla on Edison:"If he had a needle to find in a haystack he would not stop to reason where it was most likely to be, but would proceed at once, with the feverish diligence of a bee, to examine straw after straw until he found the object of his search. ... I was almost a sorry witness of such doings, knowing that a little theory and calculation would have saved him ninety per cent of his labor." • —New York Times, October 19, 1931 (the day after Edison died)

11. Conclusion: Complexity? • 3-D? • Diversity (Vs Uniform IP regime) • Democratisation (VsIP Priesthood) • Distributive Justice (Vs Productive Efficiency) • Embrace the Complexity! • Short Hand Heuristics • The Patent Proxy! • Togo vs India • Skilled Person (Common Sense) • PHOSITA vs P-SITA • Experiment with IP/Innovation Regimes • Classic Paradox!

12. Conclusion: Parting Thought! • “Imaginative Realism” • Robert Conquest • A willingness to accept a degree of imperfection in the interests of balance: • “Between the individual and the community, between the desirable and the possible, between our knowledge and our imagination.”

13. Thank you very much! • For more on Indian IP: <www.spicyip.com> • shamnad@gmail.com

14. Diversity • Standardisation in IP… • Lack of Innovation in IP Regimes • Alternative Innovation Incentives? • Diversity/Plurality: Evidence of IP: Innovation Nexus Inconclusive • What drives innovation? • How best to appropriate/distribute it? • Informal Innovation

15. The Patent Paradigm • More Patents = More Innovation? • Proxy (Togo vs India: US Chamber of Commerce) • Empirical Evidence is Inconclusive! • Other non IP drivers more important • Branding/Lead Time • So Scope for Experimentation • But what of Pharma? • High R&D Costs? • Investment Model • Why Cognitive Filter?

16. Non IP Factors… • Patent Proxy: Irrational • More Rational Drivers? • Schools/Families • Risk Aversion • But: Diversity + Chaos (traffic) + Uncertainty + Letting Go + Spirituality • Mihaly Csikszentmihaly • (Flow/Autotelism)

17. From IP Rights to Duties: CL • IP Duties (Social Welfare) • Patent Working • Compulsory Licensing • Grounds • Excessive price • Reasonable Requirements? • Bayer vsNatco (Kidney cancer) • Rs 2,80,000 vsRs 8800 • Only 2% of patient population

18. The “Fix-All” Culture • Legal/Medical Fix • Everything is a Disease in Need of a Drug • Everything is a Problem in Need of a Legal Solution! • Organic Growth • Informal Economy: Petty Patents? • Different Systems and Different Lessons

19. Diversity vs Development • Informal Economies • Elwin: • “The essential thing is not to uplift them into a social and economic sphere to which they cannot adapt themselves, but to restore to them the liberties of their own countryside [...] But whatever is done, and I would be the last to lay down a general programme, it must be done with caution and above all with love and reverence.”

20. http://www.thehindu.com/news/cities/Thiruvananthapuram/seven-institutions-from-state-in-nirf-rankings/article8435249.ecehttp://www.thehindu.com/news/cities/Thiruvananthapuram/seven-institutions-from-state-in-nirf-rankings/article8435249.ece • Cusat Vice Chancellor J. Letha told The Hindu that the ranking would help the varsity as it awaits the second round of NAAC accreditation in 2016. The varsity’s B + accreditation had timed out in 2005. “Noting that we were a bit weak in patents, we have set up a Patent Facilitation Centre at our Inter-University Centre for IPR Studies. We will encourage anyone who wishes to file a patent and walk them through the steps. We have set up a Cusat Knowledge Forum to provide scholars a platform for presenting patentable ideas and inventions,” she added.

21. Development? • Verrier Elwin • “The aboriginal cannot remain as he is-but is it necessary for him to pass through a long period of degradation before he emerges the civilized man of the future? Could we not keep him in his innocence and happiness for a while till "civilization" is more worthy to instruct him and until a scientific age has learnt how to bring development and change without causing despair?”

22. Patent Proxies! • Empirical Evidence is Inconclusive! • Other non IP drivers more important • Branding/Lead Time • So Scope for Experimentation • But what of Pharma (R&D costs) • Investment Model • Therapeutic Illusion (Control) • More Patents = More Innovation? • Proxy (Togo vs India: US Chamber of Commerce)

23. Democratisation of IP • Democratise the Discourse Around IP • IP Priesthood Vs Taking IP to the Masses • SpicyIP • IP and Social Exclusion • Access to IP? • Poor • Gender Justice • Caste Based • Newer Forms of IP: GI