Sunday, February 6, 2011

Guest Post: A Constitutional Approach to Intellectual Property

I am delighted to bring this pithy thought-provoking post by a very close friend of mine and a brilliant mind, Divya Subramanian. Divya is currently an LL.M. candidate at Franklin Pierce Law Center, Concord. 

In this post, Divya ventures to fit in Intellectual property Rights within the proprietarial framework of the Indian Constitution. She cautions that her thoughts are testy and do not have the benefit of rigorous substantiation through case law.

That said, I personally feel she has pointed to some wonderful areas of potential research. Hopefully, we will build on her thoughts in the near future. Without much ado, here’s Divya’s post.

A Constitutional Approach to Intellectual Property- Divya Subramanian
A resident on my street, one  day walked up to my home at 10 p.m. (knowing that would be the only sane time to catch me, and of course distracting me from my favourite show on TV!) with some   papers in her hand.  She showed herself in and asked me if I could help her out.

I took the paper in hand, and alas it was a Sale deed for a house down south (in India). I politely asked her, as to how I could help her.

She said.. ”You deal in property matters right??” And I quipped…“Aunty…Intellectual Property!!!” The conversation didn’t last long after, but did leave a few lingering thoughts...

I wouldn’t be surprised if many of you have had similar encounters. It is true, a large section of Indians are mistaken on this count, and I believe that they are not to be blamed for it. The Indian Intellectual Property space has gained prominence only over the last 5-10 years, which is not long enough for a country like ours where downloading a song is perfectly normal for most.

My short stint at a place with starkly different cultural differences (including IP related culture), namely the US, makes me wonder, is the Indian Constitutional framework the one to be looked at in order to bring  a sea-change? The constitution for sure recognizes the “right to property” but does it act as the Kelsenian grundnorm, pertinently with respect to Intellectual Property??? I believe only tangentially, and not expressly.

A part of me, strongly sees the need to recognize Intellectual Property as property under the Indian Constitution. One of the driving forces behind such a belief is the way I read Section 48 of the Patents Act, 1970. 

To me, the provision seems to be imposing an absolute duty (as envisioned by Austin) upon the Rest of the World to not interfere with the right of the patentee/licensee.  Section 48, is sure subject to the exceptions under Section 47 as also the experimental use exception. The nature of this seeming ‘absolute duty’, to me, is reminiscent of the rationale behind Directive Principles of State Policy enshrined in our constitution. 

Another attributing factor is the treatment of Right to Property over time by the Indian Constitution. Its de-recognition as a fundamental right under Art.19 and inclusion in Art 300A clearly highlights the shift in thought- from a fundamental right, to a right which could have a constitutional remedy in case of a State interference, not interference by private parties. 

The fact that the government via legislations, has reserved certain exceptions/leeway (compulsory licensing in patents for instance) to itself, is reflective of its recognition of Intellectual Property as a form of pure property. However, on the flip side, would express Constitutional inclusion of intellectual property lead to a battery of writ petitions being filed, is a question I fail to answer. 

When this comes across, I often feel the way our Constitution is worded is fine, allowing room for liberal interpretation where necessitated.  But on the other hand, to my eyes Constitutional recognition of IP would also lead to greater respect for IP rights and right holders.

While the Constitution seems to have been the driving force behind many legislative amendments, perhaps including the coparcenary movement, my stronger leaning is to the view that recognition would only aid the IP awareness and enforcement movement in our country. 

A country where this has worked rather well, is the United States, where copyrights and patents are expressly recognized under the constitution. The reason for this comparison also arises from the common historical influences, however, treatment and exposure to the same, albeit incomparable.

While Art.1 Section 8 Clause 8 of the US constitution need not be the absolute guiding light, the fact that it indeed proves effective in IP enforcement cannot be ignored. The jurisprudence behind the theories of induced and contributory infringement, fair use in the US, the balance between free speech and trademark rights, all relate back to its Constitution, thus laying a very strong basis for the extent of IP protection in the country.  

Again, on the flip side, it also seems extremely utilitarian in nature, explaining for the lack of adequate “moral rights” proposition in its copyright regime.

I do not intend to state that US practices are the very filmy “pathar ki lakeer” (Kelsenian absolute), and I hold a different viewpoint on many counts that it has adopted. However, on this point, I do feel there is something we could draw cue from...

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