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There’s an old saying: Blessed is he who manages to provoke a tenured American law professor to write out a full post in response to a mere four sentences. Jokes aside, I’m glad that Srividhya took out the time to respond to my passing reference to industry sponsored conferences in my earlier post.
Let me begin with what I meant by “mid-wiving” of conferences by universities. When industries sponsors centres or conferences in academic institutions, there is obviously an expectation that the funds will be used in the area of study of interest to the industry. The entire point of giving that money to a university rather than an industry body is to ensure that the research or conferences are conducted at an arm’s length with a degree of independence under the umbrella of a university which has its own in-built mechanisms to ensure academic independence. In the context of a conference, a university should ideally ensure that it presents views from both sides of the fence, regardless of the funder. While I don’t know the type of conferences that Srividhya has been attending, let me narrate my own experiences.
In 2008, the National Law School of India University had organised a conference on IP. The conference was largely possible due to funding from OPPI (a fact that was advertised on the conference banner and brochures) which is an industry body for innovator pharmaceutical companies. Patents and access to medicines was one of the topics at debate and the activist community was present in full strength at the conference – OPPI on the other hand didn’t even send anybody for the conference. More recently, a few months ago, I attended the NLU-Delhi conference on SEPs organised by their new competition and IP law centre which is the recipient of a generous Qualcomm grant. I was at the conference as an audience member and I sat through for all the sessions – each session had speakers providing different and opposing viewpoints. So clearly, it is possible for Indian universities to organise conferences which provide both viewpoints regardless of who is funding them. In fact, universities are worried enough about their reputations to ensure they go out of their way to ensure balanced debates at these conferences. To expect the industry to fund research or conferences specifically targeted against their own interests is even more absurd than the Global Intellectual Property Congress prohibiting OUP from hosting a stall featuring the scholarship of the speakers at the conference.
Regarding Srividya’s point on Justice Bhandari’s recusal where she says “I think, it is a perfectly reasonable to expect the judge to recuse himself from cases involving the industry in question as a show of propriety”. One cannot expect judges to adhere to some fictional code of conduct manufactured in the imagination of activists and academics. As I’ve discussed in detail on this blog earlier, there is no code of conduct or law which prevents Indian judges from attending such conferences. To add a further fact to my earlier post – when Roche appealed to the Supreme Court against the Division Bench’s order in the first Tarceva patent infringement case against Cipla, it was Justice Bhandari who dismissed the appeal – no evidence of bias in favour of Big Pharma.
Justice Bhandari’s recusal has opened the door to even sillier mud-slinging in the future. Let me provide a hypothetical example of Justice Ravindra Bhat, one of the finest judges in this country. Justice Bhat is a regular participant at the NLU-D and Jindal SEP conferences. Going by the precedent of Justice Bhandari’s recusal, should it be permissible for the Indian defendants in the ongoing SEP litigation to publicly embarrass Justice Bhat into a recusal because he attended conferences at universities which were sponsored by the SEP owning industry? Where are you going the draw line when it comes to such mud-slinging? They started with protested GWU’s conferences, they moved on to opposing IPOA’s visits, Ericsson sponsored conferences and eventually blocking OUP’s book stalls from IP conferences. Where is this list going to end?
As for the examples of judicial recusals provided by Srividhya, they are simply disingenuous – Judge Rader clearly violated a written rule of judicial conduct for American judges – the code of conduct for United States Judges clearly states that judges should not lend the prestige of judicial office to further private interests of either the judge or other persons. As for Chief Justice Roberts recusing himself for the Labcorp case – he never officially gave a reason – I’m not sure how Srividhya deduced his reason for recusal. Also, let’s not forget that even when American NGOs protested against the GWU conference, they never made an issue of Judge Rader attending the GWU conferences year after year despite the conference being funded by the industry. So why then does Srividhya preach a different ethical standard for Indian judges?
Last but not least, let us not forget the issue of how industry funding gives underpaid, overworked Indian legal academics opportunities to conference and network with both Indian and foreign academics. It is all well for foreign academics to preach to Indians about ethics but the bottom line is that even the national law universities have abysmal research budgets. I don’t see international organisations like the WTO or WIPO funding any credible IP research by Indian academics. If industry funding provides Indian IP scholars with more opportunities to travel to conferences and organise conferences within India so be it. They don’t need to wait for a stamp of approval from American academics.
In India today, it is very simple and easy to destroy reputations of individuals and institutions. One open letter mentioning words like ‘bias’, ‘lack of transparency’ and ‘unethical’ is enough to cause irreparable damage – truth be damned. We could instead have an honest debate based on academic scholarship and reason but that of course requires hard work.