First published on The Dialog.

Last month the Modi government introduced a new policy on intellectual property rights (IPRs). It lays out the government’s approach to strengthen IPRs with a view to foster innovation and protect India’s traditional knowledge, and envisions “an India where knowledge is the main driver of development, and knowledge owned is transformed into knowledge shared.” (p.1)

Several commentaries on the policy have appeared over the past month. Some have been critical of its “maximalist” orientation arguing that India is at a stage of development where its domestic economic interests are not served by excessively strong IPR laws. Others have argued that the new policy has been drafted with the interest of multinational corporations in mind, rather than ordinary Indians. MNCs are generally in favor of stringent IPR laws because they stand to gain monopoly rents via patents, trademarks, and copyrights and stand to lose the more these are infringed by local businesses. Still others have noted that Indian IPR laws were changed recently under the UPA government and that there was no need for another comprehensive policy change so soon.

In this piece I want to use the policy document to raise some fundamental questions about intellectual property and its relevance for India. In the current climate, IPRs are often seen as the only way to ensure that creators of knowledge and culture receive returns for their creative efforts. Given the structure of India’s economy and the nature of knowledge production in it, what should be our approach to property rights in knowledge and culture? Can we lead the way in offering an alternative to privatisation? These issues remain un-debated even as policies continue to be drafted and implemented.

Knowledge and culture are what economists call “non-rival” and “non-excludable” goods. Om purnamadah purnamidam…as the Sanskrit shloka goes. Sharing does not reduce knowledge but adds to it. A common property or commons approach to knowledge has been the defining feature of our society, as the policy document acknowledges, noting that “monetisation of knowledge has never been the norm in India.” (p.8)

But private property rights in knowledge and culture are rapidly replacing open-access and common property regimes all over the world. International agreements such as TRIPS go a long way in ensuring this. Within such agreements, access to developed country markets for developing countries is often predicated on stringent domestic IPR laws. The policy document notes that the traditional Indian approach mentioned above, “while laudable and altruistic”,

…does not fit with the global regime of zealously protected IPRs. Hence, there is a need to propagate the value of transforming knowledge into IP assets. This requires a major paradigm shift of how knowledge is viewed and valued – not for what it is, but for what it can become. (p. 8)

The “major paradigm shift” referred to is the shift from treating knowledge and culture as common heritage and property to treating it as private property. Globalisation has brought with it an unprecedented level of experimentation with common property approaches to knowledge and culture. The FLOSS (Free/Libre Open Source Software) movement, peer-to-peer (P2P) movement, wikimedia commons and many similar movements across the world are changing our idea of knowledge and cultural production.

India’s knowledge and culture landscape is well-suited to a commons regime. Unlike countries like the US or EU members, a very large proportion of knowledge production and culture creation in India occurs outside the corporate sector. The so-called “informal sector” which employs 90% of our workforce is the site of this production. Whether it is farmers innovating new techniques, weavers and other artisans figuring out new ways of working with new designs and fabrics, food workers innovating new products, folk singers with new songs, or countless others, these knowledge and culture producers are untouched by an IPR regime.

This system, over centuries, has created a highly diverse and sophisticated ecology of knowledge and culture in food, music, textiles, and various household goods. In this sector, dissemination of knowledge and culture is rapid. A new product quickly spreads in the market by imitation. Thus, monopoly rents for innovation disappear quickly but competition serves as a motivator for innovation. The writers of the new policy certainly recognise this fact.

Eventual privatisation of the immense informal knowledge commons is the goal of the policy. The strongest defense offered for such an effort, in a poor country like India, is that it will enhance incomes in the informal sector (e.g. see this World Bank report). The argument goes that unlike the knowledge commons such as Wikipedia alluded to above that have been developed “on the side” by people who do not earn a living from this activity, informal knowledge commons are created and sustained by those whose livelihoods directly depend on them.

It is true that lack of formal property rights makes it easy for larger market actors, say in the corporate sector, to capitalise on knowledge produced in the informal sector. Generally we are used to thinking of piracy as the other way around; small, informal businesses producing knock-offs of large brands such as Nike shoes or Gucci bags. But piracy occurs the other way too; the most famous example being biopiracy. It is the appropriation of traditional knowledge particularly of medicinal plants, by large pharmaceutical companies.

Further, patent and trademark protected products are rapidly displacing informal products on which they are often based (for example countless varieties of bhujia, sweets etc). A small “innovation” on top of a local product by a large corporation with the resources to secure an IPR results in a trademarked product. The local product on which the trademarked product is based is forced out of the market by economics of aggressive pricing, and attractive packaging and marketing. The resulting destruction of local economies means the destruction of jobs (with women being hurt more than men) and communities. Thus on the face of it, the argument for strengthening IPRs for this knowledge is strong.

But millions of scattered innovators are not easily amenable to private IPRs. One way to get around this problem is to create community-based IPRs for the informal sector, e.g. Geographical Indications (GIs) which are IPRs that cover not an individual or a company but a community of producers, such as Banarasi Sari weavers or Moradabad metalworkers. Since 2005 India has created more than 400 GIs in diverse agricultural and artisanal products. A second way to safeguard informally produced knowledge from appropriation is the Traditional Knowledge Digital Library (TKDL). Here the strategy is to ensure that patent officials all over the world have access to “prior art” that they can use to evaluate if a particular product is new enough to deserve a patent or copyright. The new policy outlines the need for expanding the TKDL to include other fields besides Ayurveda, Yoga, Unani and Siddha, that it already covers.

Both these approaches are better suited to India’s knowledge ecology being community-oriented rather than private. But they are also severely limited when juxtaposed with the immense diversity of products and scale of innovation that occurs daily in the millions of micro, small, and medium enterprises in the unincorporated informal sector. It is not only a matter of “traditional knowledge” that matters to a few artisanal communities. Rather it is the livelihood basis of 90% of our workforce. Further, in a context where the informal sector is severely underserved in terms of infrastructure (such as electricity) and several reforms that aid production in this sector are overdue, banking on more stringent IPRs to enhance informal sector incomes is, to say the least, unrealistic and unwise.

Our challenge is to develop an intellectual property regime that can aid local economies in their fight for earning decent livelihoods based on their own knowledge and resisting corporate take-over, while developing a commons-based alternative to private property rights in knowledge and culture. This will not be easy since it means taking on powerful global vested interests in intellectual property. But the payoff will be very large both in terms of helping local economies and leading the way in treating knowledge and culture as a commons.