New technologies, Social Knowledge and Intellectual Property

New Technologies, Social Knowledge, and Intellectual Property Law

Background

Sarai and ALF have over the past year been collaborating on a cross disciplinary research project entitled “Intellectual Property and the Knowledge/ Culture Commons”. Our interest in intellectual property laws stemmed from our belief that in the globalised ‘knowledge economy’, and that in the near future intellectual property will be one of the most significant sites of conflict over the production and control of knowledge and culture. The project therefore seeks to locate contemporary conflicts around intellectual property within the larger debate on the production, distribution and control over information/ knowledge.
There is a serious reworking of the ecology of knowledge in the past few years. For instance
•    The emergence of new digital environments and low cost methods of replication and proliferation have transformed contemporary media experiences. Millions of people now have access to some form of communication technology, resulting in serious social conflicts around property rights over films and music in digital formats. Further, the emerging interface between communications technology and software is being registered at the ground level more than ever before: the entire VCD and Mp3 copy industry  is software driven. On the one hand, if cheap copy culture has broadened people’s access to communication and media forms, the new TRIPS based international legal regime seeks to restrict and regulate access by stronger laws an increased enforcement with dramatic raids and high profile court cases.
•    The emergence of new modes through which people are collaborating and creating, and in the process changing the rules of ownership, usage and distribution. The best example of this is the Free software open source movement, which challenges a number of the premises of copyright law.
•    Finally, the language of property is also reaching domains which were traditionally seen to be outside of the realm of ‘intellectual property’ , for instance from genetic information to traditional knowledge systems, traditional art and creative expression in the form of folklore etc.

The past few years have seen rapid changes in the very terms of the debate, through the introduction of new illegalities articulated in the language of older property regimes (Piracy, theft), new paradigms of conceptualizing the relationship of communities to knowledge (benefit sharing, access). While the core of these debates are given a unifying theme( namely that of property), there had been very little debate or dialogue between these various practices, or even between scholars working on critical dimensions of intellectual property. Why do we believe that such a dialogue is important?

In the past it has only been because of the coming together of various strands of critical scholarship, that new dimensions of looking at a phenomenon or posing new questions have emerged., To take an example, in the early nineties, a group of legal scholars and literary scholars gathered together to examine the relationship between literary theory and copyright. Scholars like Woodmansee and Jaszi recognized for instance that what seemed to bind the two disciplines was the investment that they made in concepts like the author, originality, expression etc. Till then a critique of intellectual property had been possible under the strait jacketed domain of law and economics, but using literary theory, legal scholars started questioning the epistemological foundations of copyright, and started arguing for a more nuanced understanding of the process of cultural production. This led to the emergence of a first generation critique of intellectual property, from outside of the disciplinary constraints of law.
Returning back to the conflicts that are emerging around open source, piracy, traditional knowledge, biodiversity, we see practices which initially seem to be diverse and divergent, in their epistemological premises and the ways in which they are socially organized. The language of intellectual property attempts to provide them with a coherence and attempts to bring them together under the new conditions of the global information regime (post TRIPS, WTO). It therefore becomes important to bring together these streams in a critical fashion as well, to see what these diverse contestations of intellectual property have to say to each other.
We wanted the workshop to be in a serious dialogic form, and towards that end we posed a few preliminary questions which we felt would provide entry points for these diverse practices to begin to speak to each other. The questions that we posed were
•    What are the modes by which newer forms of association and networks
are formed by new media forms (email, electronic newsletters, databases, lists, etc) engendered by new technologies and communication networks?
•    What are the differing ideas and practices of communities that emerge from the biodiversity debate, and from the open source movement ?
•    How do Intellectual property regimes frame the question of social and sustainable knowledge?
•    Is it possible to pose the question of social knowledge, its sustainability and its circulation beyond existing languages of regulation and control?

=================================================

Reports from the  workshop:

Opening Statements:

Jamuna introduced the workshop and the concerns that brought Hivos into the debate. Hivos for instance has a ICT policy but thus far Hivos had always looked at ICT as a tool, and felt that there was a need to move beyond this framework and instead really engage with the rather question of the architecture of knowledge under which various modes such as the open source development framework takes place, while also addressing the questions raised to some of the older practitioners form the field of biodiversity etc.

The session began with an introductory statement by Monica. Monica posed the central thematic of the workshop namely, how do we look at the new configurations/ relationships that are converging around  practises of knowledge, the possibilities of new forms and architectures of knowledge and what they enable in terms of understanding the older and more classical forms of property relations. Recognizing that the newer forms of knowledge production and sharing, in terms of the open source movement have inspired a number of innovative projects in other domains of cultural production, for instance in the world of arts/ creativity (See for instance the OPUS project at Sarai, Creative Commons project etc.), the possibility of building on an architecture of knowledge which is more open, collaborative and accessible is possible. The first session sought to then look at some of the changes that were being brought about by the various practises within the open source community.

Workshop Design Introduction by Jeebesh, Sarai: CSDS

The are massive transformation currently underway and emergence of a new regime of knowledge which radically changes our social relationship to knowledge. This relationship between social practise, social conflicts and social inequality and how they get worked out in this new regime of knowledge / property is the primary concern for the workshop.  This is a process that is taking place at the global level and almost every aspect of that which we understand in terms of the contemporary urban landscape is touched by it.  What are the kinds of legal regimes and what are the fissures, incoherence and violence which are a part of this regime.


Design of Workshop

1.    What excites us about open source
2.    different ethos of open source practitioners
3.    Linkages between new technologies and formation of communities
4.    The idea of community and sustainable knowledge in biodiversity
5.    The legal responses and challenges to these questions






Session 1: Aniruddha Shankar aka Karim, Sarai: CSDS, “The Critical Possibilities for the Digital Commons”

Karim introduced the session by looking at what the open source model had enabled and what it had averted in terms of the classical blackmail of the ‘tragedy of the commons’. If the tragedy of the commons was the basis for the justification of private property, then clearly, the open source model provided for an alternative whereby this tragedy was averted even while creating the basis for a collaborative platform and network. Karim provided an overview of how the open source movement actually works, and the various ways in which the community constantly develops and improves on existing code etc. The creation of the Concurrent Versioning System (CVS) for instance enables multiple people to work on the same document or code at the same time, thereby creating various versions, and also recording in a complex way the contribution of various people to the entire project.

Karim then went on to describe some of the other modes through which this new network works using for instance :

•    Mailing Lists – best example of this is the Linuz kernel mailing lists
•    Web based forums- Sourceforge
•    Blogs GrokLaw- SCO IBM case
•    New modes of productions
o    Open  Directory
o    Wikipedia- online encyclopaedia
o    Think cycle

Karim also attempted to trace out the fundamental shifts that were taking place in terms of the internet and what it does to the traditional modes of distribution.
Some of the models that were described were Karim include:

•    P2P networks: Decentralised file swapping networks from naspetr to gnutella to kazaa and Freenet

Apart from the fact that they are used for the exchange of music, information, literature etc, they also provide a lot of security for instance to civil society movements which require secure communication networks which are also at the same time protected in terms of confidentiality.

In the discussion that followed, Arunachalam of the M S Swaminathan foundation observed that a similar revolution needed to tale place in the realm of scientific information and knowledge. He stated that the a debate had begun open access to scientific journals. This is an important observation in light of the fact that more than 70 % of the journals in the world are owned by a handful of publishing houses. 

Shuddha posed an interesting question, which related to the central concern of the workshop. He wanted to know what the impact and consequences of these reconfigurations of knowledge production had on the classical world of academic scholarship. How for instance do academics and intellectuals look at the question of their won production and politics. What for instance would it mean for academics to reflect on their own systems of knowledge production and what would it mean to translate the terms of the open source debate onto the domain of academic production?

There was some concern expressed about whether information in the public domain introduced through the open source method could be privatized, as it had been for instance with the case of bio piracy. Lawrence responded by stating that it was important to distinguish between the unprotected realm of the public domain, and the proactive model of protecting the public domain that the new  initiatives such as the GNU GPL and the creative commons sought to create. This was a matter that flagged for discussion since there was going to be a presentation specifically on the nature of open source licensing.

Session 1: Sunil Abraham, (Mahiti), Some reflections on the practical aspects of the global free software movement programmer and an entrepreneur.

Sunil began with the experience of what it was to be a coder, and stated that the act of copying was central to the job of a programmer. Programmers begin by copying and pasting different words [or commands] from the limited vocabulary to create a code snippet.  They then cut and paste code snippets to create an application.

According to Sunil, a good programmers don’t type, they copy and paste. He also noted ironically that the fundamental difference between attitude between the world of free software and proprietary software, was the automatic recognition that free software had of the copy command.
Sunil then introduced the work that MAHITI does, which is writing software for the voluntary sector and government bodies. These organization spend public money –either in the form of donations or tax. At a fundamental level, you could argue that software written using public money must be owned by the public, that is to say licensed in the public domain. You would also not have to reinvent the wheel for every state in every country.  But more importantly we need to worry about the increasing use of software in development interventions by voluntary organizations and governance by the state.
For example, electronic voting in America and electronic land records in Karnataka. These are situations where coders can potentially be arch villains. By making small modifications in the code, they can give the candidate of their choice a landslide victory or grabs several acres of land. Before IT was used in governance, it would take armies of thugs to achieve this. Therefore the corruption in the system will be increased by bureaucrats in nexus with technocrats. Instead of e-governance we will end up with e-corruption.
Therefore the stronger argument here, is that software used by public bodies for public infrastructure must be available in public domain.  Unless they are audited by independent members of the public they could be used against public interest.

Sunil then compared the growing strength of the free software movement as against the proprietary software. The free software movement uses two models of networking. Centralised servers such as sourceforge.net etc work within the legal framework using the GPL. This is the infrastructure of collaborative knowledge production of programmers. Also they are like lighthouses at sea, providing constant points for reference for the newly initiated and super gurus. SourceForge.net for example has 7,00,000 hackers, Microsoft on the other hand has only 50,000 employees. No wonder, the richest man on the planet has identified the free software movement as single greatest threat to his business. 

While peer-to-peer networks help those want to explore the limits of the law. Those who might have to disappear overnight. A good example of the campaign against Diebold by American students. In a sense a modern day “mass civil disobedience movement”. They work because you cannot enforce a law if you don’t have a prison big enough to hold all the offenders. Most non-violent struggles for freedom have always employed mass civil disobedience.
It is said that given the current population of the world, even if you were to invent something new, at least 6 other people across the globe will independently arrive at the same invention. After building static web sites for one year in 1999, we at MAHITI decided to build our own content management system. Since we used Microsoft technologies because we were familiar with them. The complete weight of our code was about 50 kilo bytes. By year 2000, we were in trouble again, staff attrition and our own inexperience resulted in version hell. We had different clients using different versions of the software and we caught between implementing new features or killing existing bugs.
So we starting looking around for FLOSS content management projects that we could join. We were so taken up by our own smartness that we thought that we would be able to able to submit to the main tree. We were shocked with what we discovered – there were more than 50 mature FLOSS CMS projects in progress. The project that we finally selected Zope had a developer community of more than 30,000 programmers from over 50 countries. The scope was at least 1000 times more than what we had conceived. We still don’t understand 25 percent of the core code because it is uses a high degree of abstraction. And the weight of Zope Application Server and the 700 odd community contributed products crossed 300 Mb. That is 6000 times more code than we had written.
We estimated that it would take us at least 3 years years before inexperienced programmers like us would be able to contribute code to the project.  Till then we would play the role of customizers, deployers, testers and trainers. This is the most painful part of joining the free software movement, you have to give up the exalted position of project leader on your own project and start from the lowest rank of someone else’s project.
The free software movement provides us with a model for instituting humane and dynamic hierarchies. Membership on a free software project is voluntary, trust based and there is no coercion.  Everyone one’s work output lies in public domain, so subordinates can learn from the tricks used by their superiors and vice versa. This self regulating system usually ensures that the most meritorious and hard working team members rise to the top. Decision making is not by voting but by consensus.
Day 1: Session 2
Sarah:  Gender Changers

Sarah from gender changers made an interesting experiential presentation on the work that gender changers does in Amsterdam. Gender Changers works with understanding female computing environments. They derive their name from a device which enables a computer parts to change its gender. What is perhaps interesting from the point of view of the open source movement and the history of computing more generally, is the fact that it is highly male dominated community. Living as we do in a world, where the epistemological basis of science as has been questioned for excluding the experience of women, it may be interesting for us to reflect on the difference that a female computing environment could have on the nature of code, on the nature of the organization. For instance, Sarah’s presentation speaks rather well to the assertion by Sunil that the free software environment necessarily works within highly hierarchical frameworks.

During the discussion Jeebesh raised the question of an unquestioning acceptance of the presumptions of the open source model, for instance the libertarian assumptions.  He also cautioned against any easy attempt to map out the free software development, open source developments onto the domain of biodiversity because you are dealing with very different kinds of knowledge, for instance with reference to the open system of knowledge production there is a certain disembodiedness to the nature of knowledge, while in the case of traditional knowledge, we may encounter a very embodied system of knowledge.


Satish Babu: Free software and civil society: the next phase

Satish spoke of the relationship between NGO’s or broadly the voluntary social sector and ICT as one that can be traced out in three distinct stages. In the first stage, there was a hands off approach, where the social sector was very sceptical of any form of technology as it was ties to the larger baggage of modernity, inequality, differential access, development etc. The next phase of the relationship was one where NGO’s adopted ICT in a very gung ho manner, because it was in vogue for one, and it was considered crucial to their world as well as linking to the larger world of what was happening around. This phase was marked to some degree by the inevitableness of having to embrace technology as a result of globalization. This phase is however still marked by a degree of using ICT as a tool. Finally there is the ‘back to the drawing board’ phase, which marks the contemporary moment, where the intial enthusiasm for ICT is marked or tempered by a more nuanced engagement with ICT for the purposes of the activities of the particular NGO in question.
The last phase is also marked by a certain confusion though, especially with the emrgence of the open source model, whose ideological appeal is very high for NGO’s but ngo’s seem to have a certain phobia of this new technology, having invested so many years in actually learning Windows.

Satish then went on t outline what may be a more pragmatic move , or shift from proprietary regimes to free software. In his opinion it would be disastrous if one were to ask an organization to move overnight from using proprietary systems to a Linux Operating system. What is needed instead is a more staged or phased out approach fpr the shift: There are three phases which can be used for this shift
•    The first one is introducing non proprietary programmes within the windows operating system, for instance using open office instead of Microsoft office, using Mozilla instead of Internet explorer and using Konqueror instead of Microsoft Outlook.
•    The second move would be to move to a dual boot system which allows a person the ability to boot either through Linux or through Windos, and this use of Linux
•    And only after this process of acclimatizing a user, should the final move be to move to a Linux Operating system.

Session 3:

The next session focused on a few examples of the uses of ICT in aiding the creation of communities. The participants for this session were Basheerahmad Shadrach of One World South Asia, Ravi Agarwal of Toxic Links, Proff. Subbiah Arunachalam of M S Swaminathan Foundation and Manish Kumar of i4D. Broadly classified as the ICT4D panel, the concerns of this group was to examine the role that ICT plays in fostering the developmental activities and interventions of the classical social sector in India.

This panel was a mixture of reflections on the nature of communities as well as a few demonstrations of certain ICT tools were being used by communities. Prof. Arunachalam spoke of the initiatives at the MSSR which sought to create sustainable systems for community knowledge, while Basheer demonstrated a content management system used by One world South Asia which attempted to integrate knowledge systems and practises across different communities. Ravi reflected on the nature of interaction between technology and society, and the paradigm of knowledge that one shoes when choosing an ICT option. Manish reflected on the use of ICT for mapping and GIS system, something that we had difficulties to connect the theme of the workshop with.

Day 1: Session 3

This session consisted of practitioners from the field of biodiversity and traditional knowledge. Dr. Vikaylakshmi set the tone for the session  by showing a film about an effort by a local community at regaining its seeds, which had been lost after the introduction of large corporation owned seeds.    The interesting insight form her presentation was the description that she provided of the raids that were conducted on the seed bank by the police, since they were accused of violating the rights of the corporations. The new language of property as it moves from seeds to CD’s seem to have the same modus operandi when the regime of property is threatened, invoke the sovereign power of the state to ensure that property is protected at any cost. There were certain shared concerns that emerged in this session:
•    What happens when a system of property which also carries with it an epistemological assumption of the nature of knowledge encounters a very different tradition of knowledge production. Is there ever an equal relationship or does one give way to the other and what are the consequences of such giving way.
•    What are the violence that take place when this modern system ( exemplified by IP) encounters the older forms, and what gets lost in the process.
•    A history of the process of dispossession that takes place in this history of property. In the first instance you have knowledge which are considered unmodern and relegated to the time-spatial configuration called’ traditional’, when this system is attempted to be privatized  through modern instruments of property protection such as the patent regime, there are huge conflicts that emerge.
•    There is however a danger of assuming that all forms of knowledge production which is not a part of the modern regime of property were open and everyone had access to it. Aasha for instance spoke of the various forms of exclusions that can take place with respect t practises of communities guard their knowledge, as the idea of community in India is always mediated by locations of caste, gender and class. There may for instance be a vertical sharing of knowledge but not a horizontal sharing of knowledge, How do we respond to this internal architecture of knowledge and how do we attempt to restructure it to ensure that there is both vertical as well as a horizontal sharing of knowledge?
•    When attempting to respond to the crisis caused by the modern regime, the response has always been in the form of legislating for communities, but there has been no way of answering the question as to who or what these communities are.
•    There is a great violation that takes place when we revert to the language of ‘traditional’ knowledge, as the idea of tradition seems to fix the practises of knowledge into a time frame which is not considered a part of the contemporary, while in reality, most of these communities are not dead but t living communities, and the knowledge that we are speaking of are very much a part of the living community.
•    A common question that was raise, was how do we think through the idea of creating open systems of knowledge production and sharing, whereby on the one hand one ensures that these systems of community owned knowledge are not privatised while at the same time ensuring that thee is a certain dialogue between these systems and other system, which does not then isolate the body of traditional knowledge.
•    What was also clear for this panel was the ease with which the entire question of biodiversity and traditional knowledge becomes a question of national importance, national resources, national culture etc. The roe of the state  and its complicity in the relegation of these bodies of knowledge into a different temporal space is always neglected and the issue is always rendered as one of the national interest v. the bio pirates from the west.
•    While it was clear that the modern regime of intellectual property from copyright to patent was uniformly opposed by all the practitioners the question of how to move forward having recognised the dangers of IP, and the question of model to choose from , was an open ended one which needed more debate and clarification.

The first day therefore ended with a set of questions which we hoped would be addressed in some portions by the session in the second day.
============================================================

Day 2 Session 1: Dev Gangjee and Lawrence Liang

The first session in the second da was an opportunity for lawyers to reflect on recent development sin the field of intellectual property and look at the ways in which one could respond to some of the concerns of the issues of practises of knowledge production, architecture of knowledge systems that had been raised in the first day.

Dev Gangjee started the proceedings with an overview of what had been taking place at the level of the global intellectual property regime. IP is generally justified on the grounds that it is system that seeks to create a balance between the producer/ inventor/ author of knowledge/ information and culture with the interests of society. The specific form of such incentive is the limited monopoly that most IP grants, to ensure that inventors/ investors earn back their investments. This is a familiar tale  however in the  recent past we have seen a dramatic shift in this balance and a tilt completely in favour of the producer/ owner of intellectual property.

This shift can be accounted for in terms of the horizontal as well as vertical extension of IPR. For instance an example of the horizontal shift of IPR would be the case in patent law, where areas which were earlier seen to be outside of the domain of patent protection, such as  software, living organisms, business method patents etc were bring brought under the fold of patentable subject mater. This is particularly virtue after the signing of the TRIUPS where most countries have to ensure that their own national patent regime responds to the call for a widening of the scope of patent protection. In the case of the vertical extension of IPR, the  best example would be that of copyright, where in the US for instance the Sonny Bono Act or the Copyright Extension Term Act has extended the duration of copyright by another ten years. This ACT was challenged by Lessig and others on the grounds that it violated the first amendment of the constitution, but the Supreme Court of the United States held in favour of the Act.

Dev also went ahead to examine the epistemological conflicts that emerge between patent systems and traditional knowledge. Patent is a  monopoly right given to an inventor of a useful product or process. He has the sole right to sell, manufacture and use his invention. 
Traditional Knowledge may also be in the form of inventions. Indigenous people developed ways and means of dealing with their local environment. Their knowledge of the surroundings and keen observations have led to innovative ways of treating diseases, dealing with crops etc. The scientific and technical processes underlying the creation of various indigenous inventions are deliberately trivialized. Unfortunately, the world outside of their environs had failed to recognise and appreciate these forms of indigenous innovation, often sidelining them as superstitious and crude. But, the failure of the and dangers of chemical pesticides and medicines forced them to resort to  bio-medicine and bio-pesticide. This has actually helped the so called “civilised world” to understand the role of  plant based medicines and pesticides. Unfortunately, the greed for “gold” (the gold rush in US is now equated to the rush to patent plant based medicine, pesticide) has led to commercialisation and exploitation of the TK. The sunny side of  the so called ‘bio mining’ has brought into light many ways of treating ailments as well as environmentally safe pesticides. The downside, though, the holders of the TK have not received benefits for sharing their knowledge and continue to live under abject poverty and ignorant of  their rights. The Enola bean patent dispute provides a stunning example of the type of problems that surround Traditional Knowledge.

Lawrence Liang : The map is not the city: The license is not the story

Lawrence’s presentation was an attempt to understand the dynamics of what it has meant to translate the terms of the open source licensing mechanism, namely the open source licenses in the context of cultural production, and what this may mean for us when we attempt to look at systems of knowledge which do not fall under the parameters of traditional IP protection such as TK. The attempts was also to move away from a purely legal understanding of the problem, since it is grey area the GNU GPL has not been tested and try to understand the license as cultural document that seeks to document a ‘community in formation’.

The presentation analysed the various families of licenses such as

•    EFF Family: Free Licenses (directly inspired by GNU GPL)
o    GNU Free Documentation
o    Free Art
o    Free Media
o    EFF Free Audio


•    Open Licenses
o    Open Content
o    Open Publication
o    Open Music


•    The Emerging Creative Commons (empire)
o    Various Creative Commons Models
o    Open game
o    Library of science license

•    Other Licenses

•    Simputer GPL
•    OPUS Commons License
A license at first sight is a very peculiar object. It is on the one hand a recognition of a pre existing grid of social relations marked by the discourse of intellectual property, authorship and ownership. And at the same time its substantive content seeks to redefine our very understanding of modes of cultural production. Implicit for instance in the language of licenses is the dual move of the right to exclude use as well as the grant of a privileged use. How then do we begin to under the nature of licenses within a larger framework than the legal character that it inhabits.
The central problem posed by this study would be to understand the nature of licenses as cultural documents. When I speak of a license as a cultural document there are two aspects which are of importance:
Firstly it refers to a license as an attempt to document certain models of cultural production, ownership, consumption and transformation. After the visibility attained by the open source licensing culture, there have been a number of similar attempts to define and articulate a certain vision of distributed cultural production. These range from experiments in open art to open music etc. The first task would then be to critically understand Licenses as they exist, (often invisibly) as the annals of emerging models of economic and cultural production.
The second way in which I use the idea of a license as a cultural document is to understand the license as a complex “narrative contract” that attempts to translate new social imaginaries within acceptable legal forms. Thus while the idea of innovative licensing has arisen in the context of carving out alternative spaces within a stifling IP environment, it also creates the condition for the establishment of new imaginaries. If constitutions were the narratives of emerging nation sates and the ways in which a particular political community imagined itself as a 'work in progress', it would be interesting for us to examine the role of the license within such a narrative contract which defines the ways in which post national communities will engage in the political and cultural economies of the global contemporary.
The license is a fascinating document in that it offers us an opportunity to understand the complex ways in which a community translates the terms of its philosophical engagement into a document that , both abstracts the experience into a legally recognisable form. For instance the aim of OPUS was to radically reconfigure the ideas of what it means to produce in a collaborative environment, what a text consists of in, what does it mean to challenge notions of originality and authorship etc. These are obviously very complex terms of engagement, so what does it mean to translates these ideas into a 'license’. In the same manner that a constitution is an abstract, partial and often violent vision of nationhood, a license can only capture a fragmentary sense of an innovative practice, and implicit in its form is a recognition of its own injustice.

Lawrence attempted to use an analogy from political theory, namely the idea of fuzzy communities enumerated by Sudipta Kaviraj, in his account of Indian nationalism. The contemporary moment is marked to a large extent by the existence of these various fuzzy communities, who tie themselves together through the idea of a narrative contract. The narrative contract, is a metaphorical contract that more often than not works itself out through various form of public discourse, rather than through its contractual nature in terms of as binding commitments. Thus it is critical that we understand the imaginative possibility / public discourse that has opened up as a result of the Open source licensing models, and the task is not to replicate the same licensing models but to think through the idea of what it may take to create open systems of knowledge production.


Day 2 Session 2

Suman Sahai

Suman Sahai provided a broad overview of the debate on bio genetic resources and patents in India, with a particular focus of the policy level advocacy campaigns and the changes brought about by these campaigns. She started off by tracing the developments that led to the inclusion of biological and genetic material as a part of the patent regime. Initially Biological/ genetic materials always existed out side of the IP framework, but biotechnology changed the rules, when biotech companies relaised the potential that existed in creating new drugs through a  combination of modern scientific techniques and traditional systems of use of bio genetic resources for medicinal purposes. This was complimented by moves in the US courts, which slowly started recognizing the patentability of living micro organisms. The battle lines were then clear, it was a race between technologically rich countries in the west and bio genetic rich countries of the south.

Art. 27 (9) (B) of the TRIPS agreement provides for patentable subject mater and it includes micro organism and non micro biological  processes. The second major area of conflict is with respect to plant varieties. How has India responded. Through the introduction of the Biodiversity ACT, the Plant Varieties act and Geographical Indicators. The Biodiversity Act is a nightmare legislation, both in terms of implementation, but more specifically with respect to the fact that it completely ignores communities and is developed within a national framework with the state being the guardian of the inertest of local communities. It is also silent on the issue of intellectual property and merely establishes modes through which one can use bio genetic material, for instance prior informed consent. There is also a problem that the legislation faces in terms of jurisdiction as there is a clear conflict between the forest department and the forests act.

The Biodiversity ACT was the result of the initial days of the TIPS where the Indian government did not really have a sense of how to respond but through the efforts of civil society initiatives such as the Gene Campaign, there has better information in recent time s over the debate. The Plant Varieties Act in India for instance is the result of the successful campaigning by various groups such as Gene Campaign. 

India the only country to grant legal rights to farmers and the position of India, is that there cannot be any law that protects only breeder rights and PV follows a different model. The position of Gnee Campaign was clear that what we nedde was something that did not follow the sui generic model as exemplified by UPOV, and UPOV had become the only available model. UPOV is intended for the protection of plant breeders which are more often than not large corporations like Monsanto.

In India you have licensing and the statutory rights (farmers rights) farmers have explicit rights to parallel rights in India. There are Strong breeders rights and also farmers rights under sec. 39 of the act. Farmers varieties are acknowledged and collective benefit sharing is granted. There si the establishment of a National gene fund. Farmers are protected against innocent infringement. The Farmers right to sell seeds is a critical area since farmers are the single largest producers of seeds and 80 % of all seeds are produced by farmers: However the  sale cannot be a commercial sale, and it can only be within the local area and in the traditional form.

The discussion that followed attempted to question the logic of regulation that had come to place, because it does not recognise the inherent politics of who the farmers who breed seeds are, and more often than not it replicates a local system of hierarchy and access.

Sudhir Krishnaswamy: Responding to the issue of the architecture of Knowledge

The last presentation in the workshop was by Sudhir, who attempted  to tie the different strands together while at the same time trying to make an argument for how and why one could make an argument for more open systems. What brings the various strands such as TK regulation, Open source ideas, Biodiversity etc is their concern with the legal regulation of knowledge. While all of them seem to be fragmented in terms of their concerns, the question that needs to be posed is whether there should also be a fragmented response. Can for instance one make a stronger open source argument even with respect to traditional knowledge, and if so how can this argument be made?

The are two dimensions that need to be highlighted when one is speaking of a certain architecture of knowledge and these are:
•    The Character of knowledge or the epistemology of knowledge, and
•    The political economy of knowledge

Does the epistemology of knowledge, in terms of its materiality or immateriality make a significant difference in our approach to it? Thus far the framing of an ecology of knowledge has been premised on certain binaries which do not seem to help the debate. For instance the entire question of traditional knowledge has been argued on the binaries of tradition / modernity in terms of patents/ alternative systems of knowledge, and this only forces us to respond to the patent questions, and not to a larger ecology of knowledge question.

A manner of thinking through the ecology of knowledge question is provided for instance by the question of seeds and that of the open source movement. Both these realms for instance depend on a model of a User / Producer knowledge, as well as a continuous regeneration. The apparent conflict between the epistemology question and the ecology question has been answered through the reform of property. But his is untenable, if it cannot work for one then it cannot work for another. Biodiversity- starts with the epistemological assumption of community base but moves to property rights argument, and from community right to state property regimes. This is curious for a number of reasons, firstly it does not deliver and secondly it ignores the ecology of knowledge ( communities are users and producers of the knowledge). Stronger property regimes cannot be the answer.

The answer then lies in creating rule bases systems which recognise this ecology, for instance, liability rules are a great example of this system. You do not impose any restrictions on access, instead you impose a cost barrier for the access.


The workshop closed with an open house discussion which revisited some of the key issues that had been raised, debated.
========================

Conceptual Summary of the various themes in the workshop

Jeebesh Bagchi:

Notes on Social Knowledge and IP
December, 2003
----------------------------------------------------------------------------

i) On the one hand there are certain Community based knowledge systems/ practices, and these 'Communities' needs to be understood as `fuzzy` This fuzzyness refers to not-so-clear boundaries, evolving and layered protocols of  creation, sharing and transmission.
These knowledges have certain qualities:

♣    They have emerged from collective social practices.
♣    They have a temporal depth that is difficult to quantify.
♣    They are about materials and processes.
♣    The laboratory of innovation and experimentation is the field and, in this sense, open.
♣    They are imbricated in complicated practices of exclusion and heirarchies.
♣    The transmission of these knowledges have been through oral cultural forms, hereditary practices and mediation of local markets.
♣    They have survived as common resource, and without determinate authorship claims.
It is important to recognise that a large base of this knowledge has eroded over the last 200 years. It lies scattered, forgotten, out of practice/use; some are alive due to hybrid practices, and some alive due to stubborn practices.

Its very survival shows that it has a sustainability basis not yet properly appreciated.
Here it is also critical to understand that these knowledges have survived through violent histories of dispossesion and inferiorisation; and thus a large number of its practitioners are without much social resources or social representations.

The Legal Entities that currently act as interlocutors for these forms of knowledge are NGOs who have, over a long period, been working on local knowledge and practices. These practitioners have over a period of time documented, collected and organised a large number of these practices, proccesses and materials. The processes of collection have not been easy and have had to be done over a long period of gathering information and creating a sense of conservation.
Here
, it is critical to recognise that a simple practice of collecting varieties of `rice-seeds` is not easy as this is part of a larger politics of seeds that emerged with the Green revolution. This collection and documentation has been achieved within a politics of knowledge that has been in favour of a dominant paradigm of science and technology research. (In this I would request you to see the career of two biologists, Richaria and
Swaminathan.)

Now. There are very many NGOs with a huge collection of materials and processes and a `goodwill` within communities. Usually they have the consent from the communities about holding the materials and the knolwedge about processes.


Enter Multi-lateral global legal instruments. From the TRIPS onwards, the language of intellectual property is introduced into this knowledge space. The space of the IP regimes is made broader to cover huge domains of materials and practices. The critical factor is the protection given to new research that emerges from these earlier knowledges, primarily through patents. Patents are disclosures with strict monopoly over usage. Here we need to recognise the State functionaries as an important player. Like all IP insertions, great dreams of wealth create new constellations and aggregates. The nightmares of dispossesion battles a weak battle, at times emerging as bargaining rhetorics.

The Enterprise.

New pharma, seed and biotech companies need new knowledges about materials  and processes. It is critical for their survival as it will generate more  investments and wealth. State gains by getting more revenues out of this  `space of production`. The Enterprise needs `rights` to use and modify materials and processes. The Enterprise needs IP protection for its new products and processes.

Here the laboratory is a critical mediation. But these are closed  laboratories and its knowledge is made public only through the patent  regime. That is, disclose and thus retain the rights to its reproduction as  an exclusive monopoly. Where will it go in search of these knowledges (materials and processes)?

What kind of legal instruments will it use?

v) The Transaction
The present transaction debate is around:

a) Models of `benefit-sharing`.
The dominant position as articulated through State and section of the NGOs is `state institution` managing on behalf of the community and then dispensing it back into the `community`. The Enterprise pays an amount for usage and modification and then proceeds with its new products with guaranteed IP protection and enforcement. The State is supposed to distribute the amount  into the community.

Here it is important to note that from the `fuzzy` community we will move  into `enumerated` communities.

b) Producer rights.
This is a right that keeps for the non-enterprise producers to make their own variety, claim IP on it and proceed. It also guarantees that reselling of enterprise stuff can also be carried by the producers. (Here we need to bear that the players are very unequally pitched). Also, the viscious enforcement legal instrument (speaking like POTA laws) have been put into place to make sure that IP protection is being understood in everyday practice.

Critical to recognise here is that the IP protected materials and processes cannot by REPRODUCED by other producers and neither can thay be MODIFIED. This basic value of IP protection goes against the foundation of the protocols in which these earlier forms of knowledges evolved and survived.

What does Open Source ethos do to this debate?
-----------------------------------------------------------------------------
Open Source movement is a critical vantage point to enter this debate.

- It sees the USER as a PRODUCER (immediate or potential).
- It sees knowledge as collectively produced, and protects that collective
effort.
- It ensures that all user have atleast the following minimum rights:
Unlimited right to USE
and the right to make COPIES and circulate.
Some practices make it mandatory that the user retain the right to MODIFY and
profit from it. The debate is: What is the status of this new modified
version?
Some practices (i.e GPL) force the modification to be retained in as a part
of the larger code base commons. Some practices (e.g BSD) gives the
users the option of not contributing to larger code base.

BUT open source is very clear that the `common code base` needs protection  and is always to be available to all users to use, reproduce and circulate.I would think that this mode of thinking the USER/PRODUCER as a joined practice will change the fundamentals of many dicussions on biodiversity (these knowledge practices had this built into them) and culture (the  language of protection is based on a fixed idea of a frozen `end user`.)