The IP Reveries series is an experimental ‘fun’ series set in an imaginary classroom where we are using a dialogue format to raise questions and discussions around IP that traditionally don’t find a place to get voiced either due to long standing assumptions, or due to being seen as ‘too trivial’ to discuss in more formal settings. The series is authored by Lokesh Vyas and myself in equal measure. For a general introduction to this IP Reveries series, please check the introduction post here.
Misunderstanding Rights 101!
In the first three classes, (1.) we analysed the term “IPR’ and perused its app(e)alling aspects; (2.) interrogated ‘intelligence’ of IPR and noticed how indefinite the term intelligence is; (3.) parsed the ‘P’ part of IPR and saw what problems it (re)produces. Continuing our reverie-ish interrogation, in this class, we will ruminate on the “R i.e. Right” in IPR to suss up some (non)sense around it and see if the so-called ‘IP rights’ are really righteous or some other rhetoric ruse. For the previous classes, go here, here (Session 2) and here.
Class 4.1: Ruminating on the “R – Rights” of IPR!
Prof. Antilegend: Hi, IP pals. Today, I have a story to tell you. While coming to this class, I met my old amigo Mx. Metaphor from Meta-verse University (“MU”) and discussed how the overlapping meaning of ‘right’ can confuse our understanding of what it is and what it does. Today, while ruminating on the “R i.e Right’ part of IPR, I wish to run some of those ideas in our discussion. So without further ado, let’s begin and start with a recap of previous classes and tell me what you learnt and then we’ll ride towards ‘R – Right’.
Pocrati: Sure. Class 1 taught me that the term IP is full of divergence, and can make us ignore whether the umbrella term IP ushers in (non)sense. Class 2 (Part one and two) made me see that even though “I” in IPR is a focal point, it has no actual legal load, but can sometimes just be another rhetorical ruse to romanticise ‘some’ to benefit ‘others’. Class 3 further made it explicit by helping me see the power of placing an anomalous term between ‘Intellectual ..&.. Rights’ and normalising it through some strong heuristic narratives.
Mindy: Yes. Overall, we learnt to unlearn our unquestioned learning by questioning their core. … but (curiously) do we really need to do this with ‘Right’? IP is a ‘Right’ and that sounds completely fine to me. What’s wrong with this ‘right’ now? Being born into this ‘social contract’ is the equivalent of clicking ‘I accept’ in terms of conditions on websites. You’re supposed to know the rules and you’re technically bound by them even if you have no idea what they are!
Prof. Antilegend: What’s wrong with this right? Hmm … (thinking) You all noticed a hazy glaze we get about some terms we use daily when we proceed without thinking about what they mean. The same goes with rights, they go as if they are never wrong and make you believe that they are always right in every sense therefore, cannot/should not be wronged. In case they are wronged, the rights holder goes running to the state to make right, this wronged right! In a way, rights consciously or subconsciously dominate our current understanding of permissibility and justness; give structure to the form of government-citizen relationships; shape the content of laws, and for some, justify the morality or ethics of actions. When we accept them, or as the case may be – when we accept claims that use the term rights in their name – we simultaneously, knowingly or not, validate a form of distribution of freedom, authority and resources.
Feus: (Confused) right-wrong … wronged right … what is this new binary bafflement, Prof.?
Nya: Okay … See… every right comes with some legal relationships e.g. your right to life is others’ duty not to kill you and this apparently seems fine as people are to live freely without fear of being harmed by others. But to me, the same seems a bit anomalous in the case of IP which does not come out of a natural setting as explained in previous classes – but rather it is more of a (socio?) economic policy centric law? So when we define IP as a ‘right’ without understanding or questioning what a right means, we are uncritically agreeing to a certain form of distribution of freedom, authority and/or resources!
Jentham: (continuing Nya’s idea) For e.g. take the ‘Free Speech – Copyright – Fair use’ relationship: when the focus is on ‘right’, we may just overlook that (as some would argue) free speech is to copyright, as copyright is to fair use. Here, both free speech and copyright are understood in terms of a ‘right’ but the relationship is of “Norm/Rule – Exception”. You have the right to free speech, but not to copy someone else’s texts because of copyright laws. A similar relationship underlies copyright and fair use – You can have a copyright over something but (for example) that doesn’t mean you can prevent a non-commercial, educational use of it. But since fair use is often narrated as an exception and not as a right, we may not give it the equal importance. Thus, an unquestioned acceptance of ‘Right’ creates a sense of naturalness of the relationship between IP holders and users. Also, if we peruse the language of ‘right’, it gives a sense of correctness/truth as if something is due to someone owing to her/his role or status also. Thus, using the term “right”, may not only rave a sense of righteousness but may also nurture (perhaps, indirectly) their natural law justification.
Prof. Antilegend: Nice points Nya, let’s use that as a jumping board and look more specifically into what a right is in the context of IP – let’s first outline questions that may arise if one were to dig a bit deeper on this rights business:
What constitutes a right, whether it has any underlying classifications if so, what are their implications, what exactly an ‘IP right’ is (is it even a right), who holds it (i.e. creator, funder, community, public?), what action, object etc. it relates to (i.e. invention, mark, movie etc.), why is it given (i.e. morality, law, custom etc.), how it can be affected by the right holder’s actions (i.e. inalienable, waivable).
But why do I pose them first?… because every right has an internal structure i.e. their form, which performs a certain function for the right holder. Therefore, when we keep these questions in mind and understand them, we’ll be able to better answer what an IP is and what it should be called. So, tell me what is IP right?
Slato: Better! But that’s simple – it’s a right of exclusion – an ability to control/influence the actions of others with respect to intellectual creation.
Akira: (sceptical face) To be honest, the term ‘IP right’ seems meaningless because IP is not a monolithic subject but a mélange of various subjects, and thus potentially a mélange of different rights. If we look at Slato’s answer, saying IPR is an exclusive right…
Slato: Sorry to interrupt, but.. “Exclusion”. Exclusion right, is what I said, not exclusive right. The right to exclude, being the focus. Not the right to be exclusive.
Akira: True.. Ok, saying IPR is an “exclusion” right is an oversimplification, is it not? In that sense, every right has an aspect of exclusion. For instance, the right to life allows the right holder to exclude anybody from interfering with their life and the right to free speech enables the holder to exclude an interferer with the right. So, I don’t see any seriousness with this ‘exclusion’ answer. I’d rather scrutinize it further and ask – exclude what? against whom? for how long? and for what purposes? in what situations?, and to what extent? All of these questions define what an IP Right i.e. copyright, patent, trademark Geographical Indication (GI), Traditional Knowledge (TK), etc. is
Nya: Correct! All these varieties of IP rights may vary in their purpose, substance, extent, and application While the patent right …. (interrupted)
Prof. Antilegend: Sorry to interrupt, Nya! Just one caution – Resist using the word ‘right’ to define what a patent right is, that will just bring circularity. But I think you’re on the ‘right’ track. Clearly understanding what area you’re attaching this word ‘rights’ to can bring more clarity on what it refers to.
Nya: Uh yes, yes, thanks. (Pause to think) A patent is a (1) time-specific (2) legal claim on a (3) qualified (novel, non-obvious) invention, given to the patent owner, to permit the (4) exclusion of certain types of acts with those inventions (5) by third parties. The reason the free-market is allowed to be distorted this way, is that this is given for the purpose of incentivising people to innovate. Here, it is worth noting that it is granted to whoever registers the invention in the patent office, and does not need to be the inventor, scientist, funder, etc. Whereas, a trademark is a set of claims, potentially perpetual, given to the registered proprietor of the mark to exclude others from utilising that mark in a commercial manner or manner that can confuse consumers. This is given for removing the consumer confusion from the market and minimising their transaction costs. Here, the registered person has to be the user of the mark.
Jentham: Yeah … I get it now. The ‘rights’ are different in these cases. Similarly, a copyright is a bundle of automatic time-limited claims given over the expression of an idea, to the author of that work. It authorises copyright holders to exclude third parties from doing certain acts such as copying, communicating, adapting, etc. Also, I guess it’s important to mention that each of these “IP rights”, in their own way comes with a set of limitations and exceptions where its applicability is understood to have hit a limit or boundary . These boundaries are given to ensure that these state granted ‘claims’ do not unduly restrict society’s scientific, cultural and artistic flourishing.
Sugastine: And what about GI and TK? Aren’t they more about preservation/maintenance of cultural/tradition and less about exclusion?
Prof. Antilegend: GIs, TKs, Biodiversity, unfortunately, these are all things that a lot of people like to talk about and few people like to ‘do’ about. Let’s keep the how, what, and why-do-so-few–care about these as topics to discuss in another class.
Akira: From this conversation,, I realise that an IP right is just another unquestioned trope as it is not a one right but includes varied and myriad other rights. So we see the problem in saying “IP” right as though there is a monolithic substance behind the term. (thinking) … now what about the term ‘right’ in itself…
Feus: Haha … a right – something which is not wrong and should not be wronged. Simple!
Prof. Antilegend: Yes yes. It’s simple yet complicated. But regardless, Feus’ fun-fanned comment is really fruitful in this context. (smiling). A right is not ‘wrong’ in a moral science class and is also not ‘left’ in a political class, but in law classes – it can be wrong, left, or … (abruptly stopped)
Oh, wait … let me give you a short break to understand how the ‘right’ as Akira asked is to be discussed differently from social or political science classes. Think over it a bit and then we’ll get to some more juicy discussions on this rights business. Ready for the break then?
Slato: Haha, yes yes. Thanks. I will be ‘right’ back (smirking).
(*students leaving the classroom*)