If we look at national interest, Indian science has a stake in an open source model of innovation to bring down the cost of products. A knowledge monopoly based system of innovation may end up by making some money for the university, it will not help the Indian people at all.
KAPIL SIBAL’S VERSION OF THE BAYH DOLE ACT
The Little Man Who Wasn’t There
As I was walking up the stair
I met a man who wasn’t there.
He wasn’t there again today.
I wish, I wish he’d stay away.
THIS is an old ditty which used to be quite popular in our student days in college debates. I now find that Kapil Sibal has resurrected this in his new bill placed before the parliament with the ponderous title of “The Protection and Utilisation of Publicly Funded Intellectual Property Bill, 2008”. The obvious inspiration of this bill is the Bayh Dole Act, which is supposed to have helped innovation in the US and thus helped the US industry.
Opinion is deeply divided on the benefits of the Bayh Dole Act for the US. Irrespective of this, it has to be granted that the Bayh Dole Act had a definite purpose. It enabled universities and researchers to file patents and give it to private companies on an exclusive basis. Prior to passing of the Bayh Dole Act, rights to all inventions were vested with the US government who could give it to private industry only on a non-exclusive basis. In India, no such provision existed. Therefore a Bayh Dole type of Act here is addressing a problem that does not even exist. In other words Sibal has met a man who just isn’t there.
If this was the only problem, one may have forgiven the Science and Technology minister. He is after all a lawyer and therefore is looking to legal solutions for correcting the poor quality of our scientific research. The problem however, lies in the sweeping nature of the bill, which goes far beyond the Bayh Dole Act that has inspired it. If passed, it would make scientific research the happy hunting ground of lawyers and bureaucrats.
The Bayh Dole Act dealt with only one aspect of Intellectual Property – namely inventions. This bill – unlike the Bayh Dole Act – has in its scope the protection of all Intellectual Property if it arises out of publicly funded research. The bill says in clause 2 c) “Intellectual Property” means any right to intangible property, including trade mark, patent, design, and plant variety as defined under the Copyright Act, 1957, the Patents Act, 1970, the Designs Act, 2000, the Semiconductor Integrated Circuits Layout-Design Act, 2000, and the Protection of Plant Varieties and Farmers’ Rights Act, 2001;
This means that the scope of the bill includes every aspect of knowledge creation that is routinely done in any university – class notes, presentations, art work, software (Copyright Act), designs (Designs Act), creating new plant varieties. The bill demands that all this should be protected as Intellectual Property. And let us be clear, the protection is not for public good, it is specifically for commercial purposes. The university should have a committee – called an Intellectual Property management committee – whose sole purpose is to make money out of all the “Intellectual Property” (IP) that the university creates. The Clause 10 b) makes clear that the task of this committee is to “identify, assess, document and protect public funded Intellectual Property having commercial potential;”
If it does not, both the university and the individual researcher face stringent punishment. While what constitutes Intellectual Property remains vague and what the scientist has to do is not defined properly, the penalties are clear. The failure not to fulfil unspecified requirement of the bill will attract harsh punishments.
HYPE AND REALITY
The hype that surrounds this bill is similar to the hype that currently surrounds much of India’s current economic path. We are a “knowledge super power” and therefore need an aggressive policy of protecting software and scientific knowledge: this is the conventional wisdom doing the rounds. Hidden under the hype is the reality that most patents in India are held by multi-nationals and Indian software industry is a service industry creating very few products. If we are to become a knowledge player as we dearly want to do, we need to identify what is it that we need to do to create a culture of innovation in the universities and Indian industry. That protecting “Intellectual Property” is synonymous to “innovation” is to fall prey to the belief that all innovation comes solely from the desire of the innovator to make money. There is little historical evidence to substantiate this belief. On the contrary, numerous counter examples exist, including the free and open source software movement, which has emerged as the biggest threat to proprietary software monopolies.
If we look at the structure of science and technology, as it existed for the last 10 years or so, science was supposed to produce new knowledge, which could then be mined by technology to create products. The role of innovation was to convert ideas into products –– therefore the patenting system that provides protection to useful ideas embodied in such products.
The transformation of this system that existed for more than a hundred years has come from two different sources. One is that science and technology are far more closely integrated than before, making the distinction between scientific knowledge and technological advance more difficult to distinguish. An advance in genetics can translate to the market place much more quickly than earlier. Computers and communications have also a similar pace of development, drawing some of the sciences much closer to the systems of production than earlier. The second is the conversion of the university systems to what are essentially profit making commercial enterprises under the current neo-liberal order. The dwindling public financing of education and the rise of corporate funding has emerged as a major threat to scientific research.
Market fundamentalism is today profoundly altering how education itself is taking place. Students are regarded as consumers and the university education system is structured like any other commercial enterprise that looks primarily at its bottom line. A deeper analysis of nature, which has no immediate commercial market, is now being downgraded in favour of what the industry considers as “lucrative” research. Not only does it distort the larger system in which long term knowledge is devalued in favour of immediate and short term gain, it also shifts research priorities away from what society needs as a whole to the needs of those who can pay. Science is no longer for advancing knowledge and the well-being of society but almost entirely for generating profits for the educational enterprise itself.
The critique of this change in the education system comes not only from the Left, but also from mainstream business interests. Fortune, not exactly a Leftist publication, calls this shift “a profound system failure” (The Law of Unintended Consequences, Fortune, September 19, 2005). It continues, “For a century or more, the white-hot core of American innovation has been basic science. And the foundation of basic science has been the fluid exchange of ideas at the nation’s research universities. It has always been a surprisingly simple equation: Let scientists do their thing and share their work–and industry picks up the spoils. Academics win awards, companies make products, Americans benefit from an ever-rising standard of living.
“That equation still holds, with the conspicuous exception of medical research. In this one area, something alarming has been happening over the past 25 years: Universities have evolved from public trusts into something closer to venture capital firms. What used to be a scientific community of free and open debate now often seems like a litigious scrum of data-hoarding and suspicion. And what’s more, Americans are paying for it through the nose.”
How much are Americans paying for the Bayh Dole privatisation of publicly funded research? According to the Fortune article, “Americans spent $179 billion on prescription drugs in 2003. That’s up from … wait for it … $12 billion in 1980.” In the same period, discovery of new molecules – the real test of better innovation – has actually come down. The more secretive the universities and research institutions are about their research, more the slowing down of research in general.
The alternative paradigm of developing innovation is an open source or free software model. This has created a whole host of software tools that are rapidly displacing proprietary software. Interestingly, while software may have been the first, other sectors are following suit. Biotechnology and medicines are two areas that are actively engaged in enhancing innovation through co-operative public networking. The way forward seems to be creating knowledge as “commons” instead of knowledge as private property.
It is therefore doubly surprising that when the commons approach is deeply influencing future research, why should the Indian government be so in love with the outmoded patent and burn model of research? The big pharma and patent based innovation has not delivered a new drug for TB, the biggest killer in India for the last 50 years. As long as people cannot pay, big pharma is not interested. If we look at national interest, Indian science has a stake in an open source model of innovation to bring down the cost of products. A knowledge monopoly based system of innovation may end up by making some money for the university, it will not help the Indian people at all. Even in the US, a recently published study shows that only 5 per cent of the revenue of the research institutions and universities has come from income from IPR, 95 per cent coming from other sources. Also, most of the universities and institutions have barely met the costs incurred from providing such protection from the royalties. (Is Bayh-Dole Good for Developing Countries? Lessons from the US Experience, Anthony D So, Bhaven N Sampat, Arti K Rai, Robert Cook-Deegan, Jerome H. Reichman, Robert Weissman, Amy Kapczynski, PLoS Biology, October 2008 | Volume 6 | Issue 10 | e262)
Even if we leave the larger question aside, and take up the very narrow question of whether this bill will serve the interest which it alleges to fulfil, the bill is completely unworkable. It demands that every time publicly funded research creates something called “Intellectual Property”, the university must inform the government within sixty days. That means every time any data comes out of an experiment, the researcher must inform the Intellectual Property Management Committee of the possible value of the data, and the committee must take steps to protect this. In case it does not, the penalties are severe for the university or the researcher. Fully 30 per cent of the proceeds of the monies made from the IP must be put into the committee’s coffers for furtherance of IP protection of the university.
To the suspicious, the bill looks remarkably like an attempt by lawyers to make money out of scientific research. Every time a grant is made for scientific research, the lawyers will get their cut – this seems to be the intent of the bill. Even if we take a more charitable view, this bill will not only harm the way research is being done, it will create an environment in which the scientist will always be at the mercy of bureaucracy – either in the institute or in the government – for not fulfilling some obscure demand of IP of which s/he knows nothing about. Its only purpose will be to settle personal scores and make money for lawyers.
It is shame that on innovation, the government should show so little innovation. The current scene needs the harnessing of the enormous pool of talent we have in the country to solve the problems of the people. Instead of thinking of innovative ways of doing this, the government has fallen back on the increasingly discredited system of privatising publicly funded research. Instead, it should have looked at the Kerala Intellectual Property Rights Policy, which tries to do precisely that. But that would require imagination and creativity, which the sterile of world of neo-liberal thought cannot provide.