Intellectual Property Rights and Trade

Context

1. Increasing expansion, propertisation and commoditisation of intellectual property rights, leading to a loss of balance that IPRs are meant to reflect.

2. Increasing instances where IPRs policies and practices conflict with innovation, equitable access, and freedom of speech.

3. Unrealistic and inappropriate application of traditional notions of IP to the digital world, where content and medium are often distinct, leading to transitory RAM copies being considered copies, etc.

4. Increasing tensions between IP and propagation of materials over the Internet, criminalization of every-day actions of ordinary citizens.

5. Increasing tendency of IP protectionists to call upon access and copy restriction technologies to intermediate digital consumption of IP, displacing notions of fair dealings, exceptions and limitations etc.

6. Lack of transparency in international negotiations on IP enforcement, and increasing pressures on developing countries to sign IP treaties by using strong-arm tactics (often as a precondition to trade).

7. Uncritical (or unwilling) adoption of maximalist IP regimes by developing nations as part of asymmetric negotiation for market access or subsidies.

8. Lack of critical understanding of the role IPR plays in different stages of an industry’s or nation's growth, and an unwillingness to look at deteriorative effects of IPR, such as chilling of technological advancement especially in industries with the incremental advancement model

9. Unwillingness of governments and industry to explore questions of “negative IP” spaces.

10. Lack of understanding in judges, lawmakers, and the general public of the meaning, purpose and impact of intellectual property rights. 

Research Agenda

1. Questioning and re-imagination of the philosophical underpinnings of IPRs, to make them more consistent with a framework of equitable access to knowledge, more in line with actual practices of cultural production, and less restrictive of free speech.

2. Analysing the differences between digital and non-digital frameworks from the viewpoint of copyright, and examining the need and possibilities for a nuanced approach to “copying” in a world where everything is a copy.

3. Studying the forms of traditional knowledge protection being adopted by various countries, and especially the use of technology in doing so.  Understanding the tensions between access to knowledge commons and protection of traditional knowledge and traditional cultural expressions.

4. Questioning the dominant IPR regime from a constitutional perspective of free speech, and seeing if there is any additional protection to be gained from that constitutional right.

5. Questioning the dominant IPR regime from the constitutional perspective of competition law and supporting the research agenda of competition commissions in developing countries.

6. Questioning the dominant IPR regime from the constitutional perspective of tax law and documenting the systemic avoidance of taxation by IP rights-holders.

7. Contributing to the research agenda of activists interested in a WIPO treaty on minimum exceptions and limitations to copyright law especially from the perspective of disabled, aged and illiterate citizens.

8. Monitoring the IP policies in various states (both written, like the TK policy in Kerala, and otherwise) and analysing them to see if they promote equitable access and innovation.

9. Researching issues rising from “common carrier” status for ISPs and online service providers in order to mitigate ISP liability, surveillance, bandwidth shaping, etc.

10. Collecting information on negative IP spaces, to understand what leads to such fundamentally different approaches to innovation, and raising questions as to whether such spaces (e.g., the fashion industry) are actually embracing IP.

11. Monitoring, analysing and articulating civil society responses to bilateral and multi-lateral trade agreements that would affect access to knowledge in developing countries.

12. Unpacking and analysing the Bayh-Dole model being adopted by various countries (and under consideration in India), to see whether it spurs innovation or results in public funds being used to enrich private parties.

13. Exploring issues of IP rights in personal data, such as that held in various networking sites, etc.

Resources

1. Copyright and Free Speech (Uma Suthersenan et al., eds., 2005)

2. EFF’s IP section. http://www.eff.org/issues/intellectual-property

3. Yochai Benkler, The Wealth of Networks (2006)

4. Jonathan Zittrain, The Future of the Internet and How to Stop It (2008)

5. Chris Anderson, The Long Tail

6. Jack Goldsmith & Tim Wu, Who Controls the Internet?

7. Madhavi Sunder, IP3, 59 Stanford L. Rev. 257 (2006)

8. Rethinking Commodification (Martha M. Ertman & Joan C. Williams eds., 2005)

9. Yochai Benkler, Siren Songs and Amish Children: Autonomy, Information, and Law, 76 New York U. L. Rev. 23 (2001)

10. Wendy J. Gordon, Copyright Norms and the Problem of Private Censorship, in Copyright and Free Speech: Comparative and International Analyses (Jonathan Griffiths & Uma Suthersanen, eds., 2005)

11. Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York U. L. Rev. 354 (1999)

12. Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283 (1996)

13. Margaret Jane Radin & Madhavi Sunder, Foreword: The Subject and Object of Commodification, in Rethinking Commodification (Martha M. Ertman & Joan C. Williams eds., 2005)

14. Mark Rose, Authors and Owners: The Invention of Copyright 12 (1994)

15. Madhavi Sunder, The Invention of Traditional Knowledge (U.C. Davis Legal Studies Research Paper No. 75, 2006), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=890657