Category: History Studies in IP

Understanding IP and its Relationship with Natural Rights ft. Prof. Talha Syed

I did not end up posting anything on World IP Day this year. So here is a consolation for that. I am leaving all of you with a beautiful and provocative portion of the inimitable Prof. Talha Syed’s [my mentor, supervisor, and favorite law professor] speech at UC Berkeley as part of a debate (linked here). I hope you enjoy:

“For me, intellectual property rights—you have to begin with the basic idea that they are rights to exclude others from using a resource—information or knowledge or culture—which resource is intangible. And because it’s intangible, it’s nonrival, and because it’s nonrival, many people can use without anyone degrading anyone else’s use. So, it’s really unfortunate, unfair to restrict access on that. For me, the harm is that it restricts access to something which, once created, should be available to all because it does not derogate from anyone’s use that others share it. That’s the miracle of intangible resources.

Having said that, there are both fairness and incentive arguments for why the creator might be owed a decent return for the effort that went into creating something that’s socially valuable and that, if we don’t get that decent return, it might be that others will be discouraged from doing so, and we might get less innovation. That’s my basic, very modest framework. Access restrictions on intangible resources are a default bad idea But some way of generating those resources may be required through some legal policy to promote fairness and robust production and robust innovation.

What the ultimate principled basis of that is we could explore, and I’m happy to discuss. But it’s this mix of sort of basic ideas of wide access and fair returns that motivates my view that intellectual property rights, like some other innovation policy mechanism, should be evaluated in terms of how well they enable wide access and robust production and fair, equitable returns.

And on that, I’m not committed to intellectual property rights as being the best scheme or to how strong they should be. My own view is that current rights are, through the roof, way too strong. There’s a massive overreach. There’s a very clear, political economy story why that happens. It’s completely unfortunate, and it’s expanding to this day. And what’s happening on the internet with criminal enforcement and so forth makes it all even much worse.

So, on all that, we, I think, are not too far apart, although one could have various sort of modest disagreements. But where we disagree is sort of the foundational basis of our positions. And so, on this, I don’t have much time, so I’m going to just try to say a few things. So, Mr. Kinsella has what he claims is a sort of a libertarian, principled position based on natural rights arguments.

Now, to me, there’s a few problems with this.

First of all, it’s always puzzling to me why it’s called the libertarian position when it’s really the propertarian position. It’s not about freedom. It’s about property rights. Well, then say that. It’s a propertarian position. It’s not about an unvarnished, principled commitment to freedom. It’s about the guiding motif being something called property rights. Now, on the idea of property rights, I just want to say three things and see if I can get it in in this time.

First, of all, natural rights. I’ve never understood what people mean when they say natural rights. To me, rights are claims against others. Mr. Kinsella seems to agree. There are no rights on a desert island by yourself. Rights are claims against others. Rights are social relationships.

Now, the basis of those rights can be in various different kinds of arguments. Those are arguments. Calling them natural is just cheating. Where do they reside? They’re not your eyesight. Eyesight might be natural for some. To call something natural is a dishonest way of trying to get pre-modern warrant for a normative argument as quasi-non-normative. It is, in a word, bullshit.

There are rights, which we can respect based on reasons. We have to give reasons for those rights. When the reasons are given, they can be more or less persuasive. Calling them natural does nothing to the argument except try to convince you that it’s not a normative argument at all. It’s like a physical act. Well, there’s a chair there, don’t you know. Well, okay, good. But that doesn’t tell me about whether the chair is nice or not nice, pleasing or not pleasing, should be sat upon or not, whose chair is it, and so forth.

Those are normative arguments. Historically, until about 1700-1800s, normative arguments were couched in the language of time inmemorial, divinity, revelation, and so forth, or something called natural rights, which was a fusion of them, natural reason, according to Locke in the Second Treatise. Ultimately, natural reason is just reason, and I’m fine with arguments from reason. But putting this label “natural” on it as if it’s not any longer something human, something social, something historical, something normative, is a cheat, pure and simple. It is an attempt to deny the inescapable reality that rights are social relationships, which we have to argue about to determine which interests merit protection over which other interests.

I have no problem saying the argument should be grounded in something called right reason of the Second Treatise, but then you have to tell me what the premises and principles of that right reason are. So let me go to that second point in a moment.

On natural rights, I think the word “natural” has mental-blocking properties. The minute you say natural right, you’ve made it seem as if you’re making an argument of individuals outside of society. All rights are social, period, conceptually and institutionally. That’s just a truth. There’s nothing you can do about it except cry. But that’s what it is. All rights are social. Natural rights theorists have, for most of history, argued that natural rights can be justified in unilateral, individualist ways. Any time you get an argument that justifies someone’s rights in a unilateral, individualist way, without taking into account competing bilateral claims, it’s someone who doesn’t understand what a right is conceptually and institutionally. And that misunderstanding is facilitated by the rhetoric of natural, which has had, historically, that role. Second, “natural” also has the rhetorically loaded character of inviting you to believe that this is something you observe as an empirical claim rather than something that you argue for as a normative claim. The minute someone says, yeah, of course, all rights are social and normative and backed in normative reasons, we’re fine. Then the word “natural” plays no role. If you say, well, that’s what the word means, then my question is, well, why use the word “natural?” What does natural add except to say certain reasons do not depend on their recognition by certain contingent legislatures? Well, that I agree with. Of course, I absolutely agree that rights are not just the conventional positive legal rights that our legal system may or may not recognize. Of course, I agree we all have the right and obligation to be critical of the existing rights of a legal regime according to reflection and reason. Of course, that’s right. Anyone who doesn’t think that besides Bentham is crazy. But that’s a different view. The word “natural” doesn’t add anything.

On that second point, the idea that all rights are property rights strikes me as patently bizarre. Either it’s going to be tautologically true, because we’re going to empty the concept of property rights of any content and meaning, in which case what’s the point of the exercise? Or it’s going to be false because I don’t understand what it means to say that my interest in being able to express myself should be protected as a right against other people’s interests in not hearing what I say, and being able to violently stop myself from speaking.

Oh, well, that’s really a property interest because you’re using your vocal organs, and you own them. I don’t know what that means. I don’t know how that helps anything. I don’t know what that means except to illicitly try to reduce all human interests to the logic of the market. And that’s, to me, a very historically specific recent phenomenon, and when libertarians, or what I call propertarians, think it is somehow true from time immemorial, they’re just wrong.

There are no such arguments until very recently on the stage of history because the social form that those arguments track is very recent on the stage of history. Propertarian mindsets are the mental expression of people who live in capitalist societies. That’s fine, but that shouldn’t be then naturalized into some sort of trans-historical, human phenomenon through the gobbledygook of natural and blah, blah, blah. It just doesn’t make sense. It’s dishonest. It’s patently absurd. The argument should be made on their own terms, not with the implication of unhelpful metaphors, which try to hide the ball.

Last point. The rights of property that are being claimed as absolute and sacrosanct here are the rights in one’s body, self-ownership, and the rights in external resources based on first occupancy, fundamentally [then there’s contract and rectification]. But that’s a very strange argument, first occupancy. The first person who delimits or does something that no one else has done now has it. Locke never made that argument fully. He thought that that argument by itself was too thin a read, and he was right because, of course, by itself, that can’t be enough, just being there first.

What if you’re there first in a lot of places, and you don’t leave “enough and as good” for others? Well, there’s a problem. Locke understood that. The propertarian literature has struggled with this from the beginning. How do you deal with the in-built limit on property rights in external resources based on the “enough-and-is-good” proviso? There is a whole industry on talking about this. What does it mean to be born into an Earth that’s already been occupied and owned by everyone? What is all this about? And fundamentally, I can’t really argue against this at this time, I’m happy to argue it against it at length.

But I just want to leave you with an idea that, fundamentally, this whole mindset is a bizarre idea that humans are born fully form, self-autonomous beings at birth. They are not. They are born vulnerable, fragile, deeply dependent, social beings all the way down. Adults at some point in a market society come to resent this reality and deny it deeply by pretending something else is the case and then invent a series of fictional just-so stories which none of which have any grip for anyone who’s not already in the grip of the idea, the infantile desire to escape the reality of society and history and go back to some primordial, fictional story in which there are absolute rights, sacrosanct between self-governing sovereigns who relate to each other as pinball machines and can’t define their rights in any plausible way.

There is no such thing, period, as an absolute right because rights are social relations, and to have an absolute right would mean to have an interest protected against any other interest absolutely. And that is conceptually and institutionally not on the cards. Okay, I’ll stop.”

Hope you enjoyed it. All of this is of course “owned” by Prof. Syed. It is his “vocal organs” after all!

RE-CONSTRUCTING FAIR USE- WILLIAM FISHER (SUMMARY AND TAKEAWAY)

I am choosing to summarize and analyze one of the (in my opinion) most important pieces of Copyright theory and policy (some very prominent Professors here at Berkeley refer it to as their bible on anything copyright). I am putting this here for everyone to be able to contextualize the role of Fair use as a policy matter while thinking of copyright’s role, its trade-offs, and how to think about progress/ values and its role in it. Here is the full piece (highlighted): Link

Prof. Fisher, to begin with, recounts that fair use as an affirmative defense, distinct from an inquiry of infringement began in the mid-twentieth century, and was subsequently adopted in Section 107 of the Act of 1976. He recounts the logic given by Justice O’Conner of Market Impairment in Sony Betamax and argues that every case where the fair use defense is invoked will involve market harm, and so it is relevant to estimate the “magnitude” of market impairment by privileging certain uses, not the mere “existence” of market impairment. 

On Necessity, Prof. Fisher points out to be wary of the dangers inherent in its ambiguity. Sony and Harper v. Row discounted the necessity factor- however, J. O Conner in his analysis did say that copying essential to communicate facts may be privileged. 

Prof. Fisher points out J. O Conner’s discussion where he says the rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labor. Prof. Fisher criticizes this as showing an objective that is fundamentally different from social utility. He says that the notion J. O Conner embodies is that authors and inventors deserve a reward for labor irrespective of whether they would continue to work in the absence of this compensation. He criticizes this as being ambiguous- in terms of what exactly is a “fair” return for creative labor- how to balance it with the dissemination of output concerns, etc.  He argues fair use, in its (then) current practice to be aiming at “balancing” inconsistent claims derived from conventional, incommensurable premises- something which perpetuates difficulty, as against concreteness in analysis. 

He then goes on to choose premises- firstly relying on economic premises- he argues- that the objective of copyright law in general and the fair use doctrine, in particular, should be the efficient allocation of resources. Secondly, he argues, what he calls more of a utopian vision relying on cultural premises- stating that “copyright law has a significant effect on the shape of our culture and that a vision of the sort of culture we would like is a prerequisite to wise administration of the law.”

Coming to the doctrine, he says that if the package of entitlements created by the provisions of the copyright act other than 107 enabled creators of intellectual work to collect monopoly profits in greater than optimal amounts, a judge could use fair use to chip away at that package until reaching the most efficient combination. He argues that economic analysis helps us realize this, in spite of its important critiques of fostering complete market dependence.  He argues that the point of inducement through monetary incentives is to have more and better works, but efficiency gains from this inducement are only realized upon increased consumer satisfaction that results when readers have access to these more and better works. 

Prof. Fisher states that an efficient way of using the incentive access paradigm towards efficient allocation of resources through the fair use doctrine – is to analyze whether the production of “work” requires- or is affected by incentives or not. He firstly talks about special circumstances where the provision of incentives through the law has no role to play in the inducement of further production, given optimal earnings even without such legal protection is available. Here he says every use should be fair. On the other hand, he talks about works where even a single putatively infringing use would incur economic costs that exceed gains due to sensitivity to fluctuation in anticipated incomes and behavioral elasticity in respect thereof. In such a situation due to the inefficiency involved, it should be ruled unfair. Moving on from these special circumstances, he argues that In more complex situations, differentiating types of works for applying fair use creates some efficiency and some inefficiency as well. He says that copyright covers a variety of works from books to films, to factual works to fictional works, to computer software- the incentive interests/requirements on which are different. He thus argues that creating some difference in the nature of work in relation to their purported incentive requirement does make sense, but too many differences may lead to distortion where artists will assume the worth of their works legally and pursue or distort from pursuing a particular form in favor of the other. His solution is the following:

“To make an efficient choice, the judge should estimate three figures. First, he should determine how much of an efficiency gain, caused by differentiating the monetary incentives for creating different types of intellectual products, would result from moving from each level of specificity to the next. For any of a variety of reasons, the optimal combination of entitlements for musicals may be different from the optimal combination for other sorts of plays. Lumping them together would therefore result in a less-than-ideal system of incentives for playwrights of all sorts. The judge should ascertain how much less than ideal. Second, the judge should determine how much of an efficiency loss, caused by reducing playwrights’ ability to predict their incomes, would result from each subdivision. Suppose, for example, that differentiating musicals from other plays resulted in sharply different combinations of entitlements and income levels for writers of the two sorts of works, but left a substantial number of potential playwrights uncertain as to whether the plays they contemplated writing would ultimately be classified as musicals or non-musicals. The effect would be to sacrifice much of the efficiency gain described above by reducing the willingness of risk-averse playwrights to write works whose status was unclear. Third and finally, the judge should calculate how each additional differentiation would affect the number of cases in which the parties disputed the classification of the copyrighted work in question, and what the litigation costs generated by those controversies would be.”

Another theory that could relate to the nature of work factor, that Prof. Fisher furthers is that, when an art form is in its infancy, or just starting to grow in circulation, adjusting the compensation system so as to increase the number of artists engaged in developing it may increase quality and variety available to consumers- if that is what the legislature values. As opportunities for synergies of this sort diminish, the scope of protection can rather be reduced. 

Prof. Fisher, in his economic analysis, continues to focus on identifying the incentive/loss ratio by examining efficiency considerations upon every use on the incentive and its consequence on the overall allocation of resources and efficiency, as a tool to understand whether a use is fair or not. 

Moving on to his utopian vision, he uses J.S. Mill to argue that self-determination and the development of mental and moral faculties for a rich, diversified, and animating culture is the most important goal of copyright policy. He argues that cultural innovativeness- the key to diversity- would not just be tolerated by the government but rather nourished and rewarded. This is what he invokes to be his theory of protection of transformative works as fair uses. 

He argues that defining the optimality of incentives when calculating the incentive/loss ratio needs to accept the following analysis: The creators of art should be afforded better than average incomes (or greater freedom from drudgery) whenever, but ONLY whenever, such a policy would increase their output enough to yield a net improvement in the lives of non-artists. He argues fair use as limitations on the freedoms of some to advance the interests of others from the view of helping shape tastes and capacities that enable the formation of autonomous and socially determined preferences in lieu of a good life. 

His main argument for reformulating fair use is the following.:

“Maximization of allocative efficiency can be achieved by arranging the set of activities putatively reserved to copyright owners by section io6 in order of their incentive/loss ratios, identifying the point in the series at which the benefits secured by holding out monetary incentives to talented persons exceed by the maximum amount the attendant monopoly losses, and declaring all uses above that point fair and all uses below it unfair.”

Coming to the factors: he argues that the transformative factor is important as it creates more opportunities for Americans to be actively involved in shaping their culture and socially shaping identities- thus enhancing abilities beyond the ability if all were mere passive consumers. 

Then he goes on to advocate for the value of the use- citing education as an example- and so he argues that acidities that facilitate education by enhancing access to information and argument on matters of public importance, or facilitate dissemination of education – they should be fair uses due to the value component involved- however, the degree of preferential treatment, according to fisher depends on how important (NECESSITY) to education is the use of that activity. 

Another value determinant he cites is cultural diversity- any usage that facilitates cultural diversity and faculties of choice and self-determination. He thus argues to deem fair – uses- that have the potential for more derivative works – given their impact on cultural diversity. (AK comment: I think he is conceptualizing derivative works in a broad way to include transformations in content, otherwise I don’t know how this would make sense given the meaning and message remains the same irrespective of the potential to have more derivative works). 

The next factor for him is Protecting the Creative Process: where he argues to disfavor things that undercut the artistic process- and provide artists and consumers maximum opportunities for engaging in the creative process. He uses this to analyze the “published” – “unpublished” dichotomy and argues for use of unpublished works to be unfair- given for him they hamper the confidence of the artist in his/her/their creative process. He says rather than deterring all unpublished works from being used, a more precise standard would be “disfavored unauthorized uses of materials the creators of which were still considering revising”. 

He also favors uses that equalize public access as ones that ought to be deemed to be fair. 

In conclusion of his utopian analysis he identifies that consistent application of the utopian analysis would require expansion of fair use to the point where creators would be left only with income to live on, or a just conception which would require that the expansion of fair use be only halted when further movement would leave creators substantially below the national average of income- given the law perpetuates this enablement. 

He finally argues that:

“for the time being, it seems wisest to limit judges’ involvement in the compensation of artists to (i) the avoidance of superfluous income; (ii) the promotion of cultural diversity by favoring types of art for which popular demand currently is low; and (iii) providing artists (to the extent practicable) minimal levels of income.”

PROPOSAL:

Recognizing that his utopian vision is not going to tangibly turn in policy any time soon, he proposes a modest solution using factorial reform for better fair use to ensure a better deal than the one existing then: 

  1. Whether the creator considered the work finished.
  2. Definition of injury of harm.
    • Ascertain the “type of copyrighted use at issue” to ascertain incentives actually required in the said type, in terms of the incentive/loss ratio. This, however, should be carefully done narrowly as is consistent with preservation of the ability of authors to identify which camp they fall in. 
    • Conduct of the sort engaged by the defendant- commercial or not (although not a separate analysis but only a component of defining the harm caused to the creator if at all)
  3. Decide whether the harm above is substantial (reduce the quantity or quality of output by affecting incentives) or insubstantial. 
  4. If the above three tests fail to resolve the controversy- or there isn’t enough information to draw a conclusion out of the above three tests- be proposes the following factors to step into:
    • The magnitude of injury (the more serious harm to producers- the less willing the judge should be to deem it fair)
    • Creativity (the more the activity or use is creative, and transformative, the more the judge should deem it fair as they increase diversity)
    • Education (Fisher points out this is to be of relatively higher importance): use increases access to info or arguments (perspectives) on issues of public importance or facilitates efforts to make available to students resources to learn- the more the bend towards fair use. 
    • Price discrimination (the more use undermines the ability of the holder to engage in price discrimination, the weaker case of fair use- given price discrimination is good policy as it increases rewards and increases access. (Differential pricing strategies- which have lately been criticized due to administrative difficulties and parallel importation logics)

A PRELIMINARY THEORY OF FAIR USE THAT I AM BEGINNING TO CONCEPTUALISE:

The legislature values certain things (not in the commodity sense) that it seeks to ‘enable’ (a proxy for incentivizing, given it doesn’t really incentivize in my opinion- it ensures they are not de-incentivized)  so that people who produce these valuable outputs are not disincentivized from producing and shift to marginal sources of revenue, because well they aren’t able to survive and make enough money by doing these pursuits. The corollary of not enabling them would be such performances (a proxy for “creations” because I personally do not believe anyone can ever find out who created an expression) not existing in society, and these performances are valuable. So the legislature using the tool of the Copyright Act enables them by giving them a limited property-Esque right/ market power over their creations so that they can extract value out of it (social and economic). However, the legislature does recognize the constraints of giving such market power access to these valuable outputs- the very reason why they want these creativities to exist- the very reason they value it is so that people can experience it. 

So, to ensure that they protect interests that they value over/more than the enablement of creators- they create exemptions and limitations (and not exceptions) to this statute that provides enablement. Values like research, education, cultural diversity, etc are more important for the legislature than enabling the creation of works- and this “hierarchy of values needs to be understood”. Fair use is representative of this hierarchy of values. Fair use is not a defense in that understanding- it is in fact a tool to show which value is deemed to be more important and what sacrifices does enablement of creation has to go through to actually and tangibly support the achievement of the ultimate policy goal and value it seeks to instrumentally achieve – i.e., the existence of more and diverse works for people to understand, internalize and be exposed to. Fair use stems from this hierarchy of values that in a democracy the legislature prioritizes.

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Alpana Roy on De-Colonizing Copyright and Cultural Policy

In this set of 4 posts- I shall be discussing my dilemmas from the Kacha Badam Controversy. The first post covered my thoughts on the delusion that this whole controversy has produced and the need to revamp its factual narrative. The second post covered my thoughts on the hard case that this factual narrative exposes- something I cannot really grapple with yet. The third post brainstormed thoughts on resolving this hard case. Finally, this fourth post will, in the backdrop of these three posts, discuss an amazing paper by Prof. Alpana Roy titled- “Copyright: a colonial doctrine in a post-colonial age” and how her thesis has an important role to play in figuring out/ or rather even further complicating this hard case.

PART-4

In this final post, I am discussing, Prof. Alpana Roy’s paper titled Copyright: A colonial doctrine in a post-colonial age, in the backdrop of the discussions we have had so far. I also had an opportunity of discussing this article in the Critical Interdisciplinary Perspectives to IP reading group hosted by Prof. Anjali Vats, Prof. David Jefferson, among others- which led to a lot of thoughts pushback, and questions. I shall try and put them out here This is also my expression of gratitude to all who turned up for the reading group.

Prof. Alpana Roy’s article, published in the Copyright Reporter in 26th Volume 4th Issue, in December 2008, discusses IP from a sharp post-colonial lens. It is a provocative piece of writing, to say the least.

Setting the stage, Roy clears the air on what colonialism implies and what constitutes de-colonial thinking. She clearly puts it forth that the socio-economic exploitation of the so called “periphery” or alternate, need not always be directly political or dominated by the military. It can also involve continued subordination through the exploitation of the political economy to adversely affect capabilities. She mentions the prevalence of colonial thought in law-making and how it pervades global norms, in sheer ignorance of alternate indigenous realities. This narrative somehow resembles the work of the amazing late Prof. Keith Aoki, on what he calls Neo-Colonialism, and in the context of IP states that- transnational IP system erode concepts of sovereignty and self-determination.

Putting the article in context, Roy turns to International IP Agreements and reflects on the role of these “multifaceted projects” or dominant narratives which primarily reflect/mirror particular moments in the history of Western cultural practice. She emphasizes the importance of this by projecting the dissonance of the norms in agreements like Berne, with nations outside the West. She asserts that Copyright remains a foreign concept in many cultures, and many societies take an extremely radical view on what constitutes property and can be the subject of individualistic private property. In this context, it is important to reflect on the “independent” v. “inter-dependent and inherently social conceptions of the self (the idea of a “family”)” which vary across societies – with the West bending towards the former and Asian societies towards the latter. The law, as it is in its current “global” framings, only accommodates the former, completely ignoring the latter.

She then goes on to talk about a few of these individual dissonant features: (i) print culture (ii) the idea of piracy as against copying and sharing as a sign of respect and recognition- and mentions how such norms being globalized are nothing but a symbol of a dominant narrative used to foster a “one-way traffic around the notion of desirable culture”- consequently moving towards cultural imperialism. It is at this point where she makes her most important argument about this whole system having a far deeper impact than the earlier forms of colonialism, imperialism, or simple tourism, as it tends/attempts to alter the source of the self.

Hereon, she gets into the hard case by discussing the example of “Return to innocence”, supposedly a Taiwanese tribal song, which was appropriated out of a performance by 30 indigenous Taiwanese performers who were invited to perform across Europe by the French Ministry of Culture. A significant portion of these songs was used by a German music entrepreneur and was then also recorded by Enigma- and sold as “his copyright”, without any due accreditation or financial compensation for the use of the said song. She primarily uses this example to first- expose the political economy of cultural practice, and thereafter and most importantly, the political economy of law on culture- and who gets to enforce and who doesn’t. This is important in the context of the debate on print vs. aural culture, as well as in the context of the argument that accesses to a platform to showcase determines who gets to ‘own’. What I am concerned about, in this example, is not the appropriation, but rather the possessive claim of Enigma over this output- dispossessing many others who could have been the actual originators of the expression and should have had the ability to use, build on, or get any financial remuneration in respect thereof. It is in this context that the appropriation is important to be addressed.

Roy uses the “Return of innocence” case to contend how indigenous works fail to fulfill individualistic notions of property rights and are dispossessed from their performers through dissonant norms. She uses this to show how western law, and its hegemonic transposition is highly inappropriate, results in fictitious commodification, and continues to perpetuate the idea of the historic “other” even in law and policymaking. She aligns with Rosemary Coombe who argues that neoliberal conceptions of copyright do not accommodate cultural differences that are difficult to be formulated in terms of a commodity, and are hence difficult to encompass within the conceptual frameworks of “modernity”.

Roy also refers to oral research outputs and argues that as soon as someone publishes all the oral research output they get copyright over it- dispossessing participants and researchers who contributed and undertook research orally but did not/could not really “fix the output in the printed/published form”. On this aspect of fixation, during the discussion with the reading group, Prof. Ann Bartow put forth an interesting question as to- how do rules of evidence work in aural societies? – Historically mapping the same could be an interesting analogy to look at while discussing the irrelevance of fixation norms in non-western societies.

Roy then moves on to how these western cultural norms were exported to colonies by European colonizers as a part of the package of colonization, most prominently in the 18th and the 19th Century. She states that pirating foreign work was still prevalent in free-er countries given the US only joined the Berne until 1989 and offered little protection. To foreign authors until then. Unfortunately, those who were colonized had little say in such policy for their own capability development (I discuss this aspect of IP Gradualism in detail in my paper here).

Roy then moves to the strongest part of her paper where she argues the relevance of printing technology and entrepreneurs in respect thereof in centralizing and transplanting these western norms abroad.  She talks about how printing was essential for the colonial and imperial projects of Europe as their empires could not have survived without the spread of propaganda, religious tacit, commercial documents, maps, charts, etc., among the natives. Here comes the relevance of copyright. She argues that as a form of communication- printing, unlike oral communication, has a tendency of universalizing ideas- and disseminating information through identical texts and making them truths by imposing them through “violent hierarchies” facilitated by the tool of colonialism and the Prospero complex it produces. She talks about how most of the so-called “universal truths” coincided with this enlightenment period of solitary creation and printing technology – that is basically the rise of print medium and subsequently the law of copyright. Importantly she reiterates that this exchange was not happening among “equals” but rather as an imposition in a colonial setup.

Upon political decolonization, Roy writes that there were some modest attempts at resisting western copyright by the Global South, in the context of the inability to translate and develop knowledge, however not to any structural yield. Thes prevailing norms have not only been normalized but have, through TRIPS, also been universally accepted (read: imposed), and are now a part of public international law.

Moving on to a consequential analysis of these norms, embedded with capitalism and the global political economy, Roy quotes Butalia, to argue that it is impossible to separate the world of Copyright law from the world of politics, as knowledge, culture, and access are inextricably linked with power, power is linked with money- and both of those are linked with history– something which cannot be repaired easily. In my opinion- this brings us back to the hard case and the relevance of reparative solutions to be intermingled with systemic change and to look at the same as complementary rather than as an either/or binary.

Roy finally concludes by referring to how copyright is nothing but a tool to merely further the trade and capitalist interests of western societies. However, a consequential corollary of this, which Roy misses in her analysis, is the impact of such a tool on identities and cultural estrangement- the “othering” of non-marketable culture. We might be celebrating Bhuban and his expression today, but that is only because he and many others like him, who do not fit in to this marketable system have been othered from cultural identity framing discourses and economic benefits in respect thereof, for a long, long time. As Macneil argues, we cannot subordinate the subsistence of society itself to the laws of the market, and the interest of the marketers, as it disenfranchises humans of the ability to direct the trajectories of their social institutions. We cannot, as a society afford to do this, as the same is nothing estranging identities.

To conclude these posts, the takeaway I seek to present is-  the need for scholarship, research and thought on –

How to ensure that identity interests of self-determination (including remunerative concerns), especially of those who have been denied the same for long, are retained-  without resorting to dissonant logics of property rights as tools of affirmative action?

Hope we have enough food for thought! Do reach out if anyone wishes to discuss any of this. I am available at 97akshatag@gmail.com

Part 1- here

Part 2- here

Part 3- here

WAIVING WINDFALLS @ IP MOSAIC’2021

IP Mosaic, last year i.e., in 2020, was special. It was the first time I attended an IP Conference, because a friend was incidentally presenting. It was then that I got to hear from a few of the most amazing critical Intellectual Property Scholars- people like Prof. Brian L. Frye, Prof. Anjali Vats, Prof. Betsy Rosenblatt, Prof. Carys Craig, Prof. Bita Amani, among many others. The conference was very influential for me, in the sense, it imbibed this new way to look at IP scholarship. Since, I have even had the pleasure of working on some projects with Prof. Brian Frye and Prof. Anjali Vats.

Yesterday, at the 7th IP Mosaic Conference 2021, titled- IP as protest, change and empowerment, hosted by the Institute for Intellectual Property and Social Justice, Washington DC, along with MH School of Law in the US, I finally got to present my upcoming paper (almost in the final stages) titled- “Waiving Windfalls: A socio-legal and contextual justification of a TRIPS Waiver during the COVID-19 pandemic”, in the panel titled “Patents and public health”. The panel included Prof. Muhammed Zaheer Abbas (inspiring scholarship), Prof. Mason Marks and of course the moderator Prof. Sharon Sandeen (@TradeSecretProf).

Coming to my paper, it is NOW uploaded on SSRN, however as a gist, the trigger of the paper was the Second Wave and my experiences during the devastating and frustrating situation in India. People running to Courts for oxygen, hospital beds (anyone who was in Delhi then, would completely relate to what I am referring to), a tab of Remdesivir or Tocilizumab, got me thinking – how did we even get here!

The paper goes on to specifically look at the contextual political history in terms of IP regimes, the “gradualism” or the transition period afforded to developing nations – and how our global trade mechanisms are completely unmindful of accommodating these political historical realities, which were not within the control of most of the nations, now struggling to serve the health needs and priorities of their domestic population. I go on to bat for the essence of a waiver provision in the WTO Agreement, and use historical instances where waivers have been granted, as well as the political histories of the countries batting for a waiver, as against those opposing it, to justify the fact that IT’S NOW OR NEVER.

The main theme and focus of the paper is on colonial de-linking of pharmaceutical trade and IP laws.

“De-Colonizing IP requires an alternate accent – where global trade ought to be looked at from the eyes of geo-historical attentiveness. The essence of distributive justice, especially in the grim situation that we face today, lies in realizing the importance of the historical context, i.e., this context of prolonged inability, not due to controllable forces or complacency or a lack of merit, but rather due to global acts of suppression, accounted for in real history.”

Anyway, for more, here is the abstract and the (highly textual) slides which I used in the presentation.

Here is the full paper- up for comments and opinions.

Alternatively, the slides can also be accessed here:

Thanks a lot to IIPSJ and Prof. Sharon Sandeen for this opportunity. The paper will be out on SSRN very soon.

“Discursive” Copyright?

Today morning, I was called to my Alma Mater, Jindal Global Law School, (of course virtually) to talk about Music Sampling and its relation to Copyright. Prof. Vishwas H. Deviah (who was my Independent Research Project advisor at Jindal, as also for whom, I served as a Teaching Assistant during my final year) had invited me to address a lecture to the LLM and Undergraduate students who have taken up the elective -“Music and Copyrights”.

Although the method of pedagogy in terms of this course is supposed to primarily be formalistic, and case-law oriented, tracing the judicial interpretations of sampling, I decided that given this opportunity, and having recently read The Color of Creatorship by Prof. Anjali Vats, I would try and do something different, and focus more on an interdisciplinary approach towards this lecture.

Here is the drive link with the slides that I used for the lecture/presentation:

https://drive.google.com/drive/folders/1gBvpnX4XeHbhv31QnA5NLnlmm6vK3tvl?usp=sharing

ALTERNATIVELY:

Broadly, I have tried to provoke a critical voice, against the normative idea which is taught in copyright lectures, especially here in India. I have tried and focussed on viewing and tracing the imperialistic nature of Copyright, and its adverse impact on normative non-white practices like sampling- by doing a historical overview of copyright policy, as well as of Hip-Hop as a form of music. I tried, through, this lecture to make a case for Copyright’s racist origins hidden, and invisible in the face of the law, until one gets into technicalities.

I have tried to break bubbles around the acceptability of copyright’s idea of windfall incentives. Also to show how knowledge development has been a result of widespread appropriation, which is now widely condemned, by the same erstwhile appropriating communities. I also tried to break the shackles of the ideas of Romantic Authorship, by normalising conceptions of “creative borrowing” as a core and intrinsic practice within music and art.

This is not really something which is ever taught in our copyright courses. The idea of writing this post is that we must try and include conflicting narratives and dissents to status quo policies like copyrights, to realise the societies and communities- it adversely affects, and to focus upon their lenses, who have been at the receiving end of these colonial impositions, which they sometimes do not even realise they have been subjected to.

As copyright scholars, it is our role to emphasise on this perspective as well, rather than merely focussing on internalising copyright policy, and focussing on intrinsic reforms within it.

Reading List/ Sources I referred to (even copied from) for the purpose of these slides:

  1. The Color Of Creatorship, Anjali Vats (Stanford University Press)
  2. Copyrights and Copywrongs, Siva Vaidyanathan (NYU Press)
  3. Privilege and Property: Essays on the History of Copyright (Chapters- 3,4,6), by Mark Rose, Oren Bracha and Maurizio Borghi (Open Book Publishers)
  4. Locke’s 1694 Memorandum (And More incomplete Copyright histographies), Justin Hughes (Cardozo AELJ)
  5. Primary Sources on Copyright, http://www.copyrighthistory.org/cam/
  6. Digital Sampling and Cultural Inequality, David Hesmonhalgh (The Open University UK)
  7. Sampling, Looping and Mashin…Oh My: Hip Hop music is scatching more than the surface of Copyright, Tonya M. Evans
  8. Copyright, Communication and Culture, Towards a Relational Theory of Copyright law, Carys Craig (Osgoode Digital Commons)
  9. Copyright, Culture & (and) Black Music: A legacy of Unequal Protection, K.J.Greene (Hastings CELJ)
  10. Copyright, Translations and relations between the British and India in Nineteenth and Early Twentieth Century, Lionel Bently (Chicago-Kent law review)
  11. Cultural Environmentalism and Beyond, James Boyle
  12. Intellectual Property and the intersection of Race and Gender, Lady Sings the Blues, K.J. Greene (Journal of Gender, Social Policy and Law)
  13. Critical Race Theory, Signifyin’, and Cultural Ownership, Richard L. Schur (in Parodies of Ownership
  14. On the Author Effect, Contemporary Copyright and Collective Creativity, Peter Jaszi
  15. Gandhi and Copyright Pragmatism, Shyamkrishna Balganesh
  16. Creativity and Culture in Copyright theory, Julie Cohen
  17. Digital Sampling: A Cultural Perspective, Henry Self
  18. From Mozart to Hip Hop: The Impact of Bridgeport v. Dimension Films on Musical Creativity, Lauren Brandes, (UCLA Entertainment Law Rev)
  19. Social Justice and Copyrights Excess, Betsy Rosenblatt (Texas AnM Journal of IP Law)
  20. Everyone is a superhero: The Cultural Theory of Mary Sue- Fan Fiction as Fair Use, Madhavi Sundar and Anupam Chander (California Law Review)
  21. Why Copyright law needs music lessons, Carys Craig (Osgoode Hall Law School)
  22. Fair Use and the Future of Art, Amy Alder (NYU School of Law)
  23. Hungry Translations: Relearning the world through Radical Vulnerability, Richa Nagar
  24. Free to be You and Me? Copyright and Constraint, Rebecca Tusnet, Harvard Law Review Forum
  25. Who Watches the Plagiarism Police, Brian Frye and Akshat Agrawal, (The Contemporary Law Forum)
  26. Is a Plot/Theme Copyrightable, Lets end the Controversy and Conflict, Part 2, Akshat Agrawal (IPRMENTLAW)