Wednesday, September 25, 2019
By Saira Banu,
Image source: pmcorporatelaw.com
Libertarianism as a philosophy emerged in an attempt to cure the unfairness that plagues our world. This blog will attempt to question the basis for its very existence, along with assessing the effect of libertarian principles on intellectual property.
While it rose from a need to make living fairer, whether this principle is translated into the libertarian view of intellectual property (IP) is explored throughout this blog. Libertarianism assumes the existence of a natural harmony between productive people, and an analysis of how this harmonious existence seeks to protect or prevent intellectual property rights (IPRs) will be done. Essentially a political doctrine, human flourishing and human happiness are seen as the central takeaways of libertarian philosophy. Freedom of speech is celebrated in libertarianism, and the role and power of the government is optimally kept to a minimum to allow humans to exercise their own autonomy. While libertarians advocate “minimal government interference”, they do not prescribe to any sense of lawlessness as the government’s minimal responsibilities include protection against force, fraud and theft, as well as the enforcement of contracts. This is where we first see traces of libertarian principles in IPRs, which also emphasise the maximum freedom of the individual and minimum authority of the government.
A vital principle of libertarian philosophy is the “Non-aggression principle”. The non-aggression principle (NAP) holds that aggression against a person or property of others is always wrong, where aggression is defined narrowly in terms of the use or threat of physical violence. The NAP is considered the defining principle of the philosophy of Libertarianism and suggests that aggressive behaviour if initiated can be met with reciprocal aggression. The notion of liberty preached by libertarians requires a great sense of restraint, but the only restraint compatible with libertarianism is self-restraint.
Having established a basic premise of libertarianism and how its principles could or could not be compatible with IPRs, we will now elucidate what comprises IPRs and how it is impacted by the principles of libertarianism.
Very simply put, IP refers to creations of the mind. It is divided into two categories: (1) Industrial property that comprises inventions, trademarks, industrial designs and geographical indications, (2) Copyrights that comprise literary works, films, music, artistic works and architectural design. IPRs are treated like any other property right as they allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation. In this sense, IPRs embody the very essence of libertarianism as it restores individual agency to these “creations of the mind”, and allow these productive creators or owners to benefit from the fruit of their intellectual labour.
Several arguments exist supporting the establishment of the protection for IPRs. The WIPO argue that the progress and well-being of humanity rest on its capacity to create and invent new works in the areas of technology and culture. It further argues that the legal protection of new creations encourages the commitment of additional resources for further innovation, and that the protection and promotion of IPRs spurs economic growth, create new jobs and industries, and enhances the quality of life. Through the course of this blog, we will try to ascertain whether these are compatible with the principles of libertarianism.
Multiple scissions have erupted in the libertarian school of thought concerning the validity of IPRs in Libertarian philosophy. There is a stringent disagreement about the application of the fundamental principles of libertarianism. Two predominant schools of thought exist concerning this. The first school of thought postulates that patents and copyrights are a necessary component of a legal framework that protects open competition and individual rights, while the second school of thought is of the opinion that IP is a form of aggression or coercion, a violation of an individual’s legitimate prerogative.
IP has a central role in the global economy. Hence, the stakes are high and the public policy implications are far reaching. We will now look at libertarians who share a conflicting barrage of ideas ceding to IPRs. Murray Ruthbard defended a contract theory of copyright, provided that the work was properly contracted, as libertarians uphold the enforceability of legal contracts. He did however distinguish between patents and trademarks as the principle of attaining “copyrights by contract” does not extend to patents as the latter goes beyond the scope of the free market and the “original contract”. Benjamin Tucker, an individual anarchist was of the view that IP constituted protectionist economic privilege. During the course of his lifetime, he instituted a privatised mail delivery enterprise to challenge the US government’s monopoly over the postal system. He considered IPR as averse to individual rights and that it served no higher purpose than the insulation of the powerful against competition. He argued that copyrights and patents replaced the intrinsic worth of labour and provided a profit excess to the amount legitimately earned by them. Ayn Rand is another avid libertarian who vouches for IP, but does not reflect the same in her writings. Her values of libertarianism are enshrined in her acclaimed Atlas Shrugged, which also contributed to the popularisation of libertarianism. Rand argues that a man’s right to the product of his mind is unquestioned, while prescribing to a completely contradictory notion in her novel. What patent and copyright law acknowledges is the paramount role of mental effort in the production of material values. According to Rand, IP is validated by the protection it affords to creators in their fabrication of concrete things that did not previously exist in nature. Certain contemporary libertarian thinkers like Stephen Kinsella argue that IPRs are incompatible with libertarianism as it is nothing more than the redistribution of wealth and hence it becomes un-libertarian and unjustified.
Hence, there are varied instances to prove that libertarianism has influenced certain aspects of IPRs as illustrated above, but the fragmented ideological perspectives that accompany any school of philosophy exist in this scenario as well, preventing a reader from ascertaining a concrete understanding of the role of libertarianism in IPRs.
Saira Banu is a Research Intern at CPPR-Centre for Strategic Studies. Views expressed by the author are personal and need not reflect or represent the views of Centre for Public Policy Research.
Tuesday, September 17, 2019
By Rajesh K P,
The Draft National Education Policy (Committee for DNEP 2019) is a vision document which aims at a major overhaul of our present education system — school as well as higher education. The document is very detailed and gets into every aspect of the education system including governance, regulation and accreditation. With the mention of Early Childhood Care and Education (ECCE), there is a significant change in the way we look at foundational education. There is an emphasis on revamping teacher education with higher education reforms providing ways to achieve these goals. Talking of higher education, one could see that the policy document aims at a significant revamp of the higher education system. Two major policy documents with regard to education in recent times were the National Curriculum Framework (NCF) in 2005 and Right To Education (RTE) in 2008. ECCE is expected to make its way into the RTE Act, while NCF could see a significant direction
change with the new policy.
The vision looks grant. Capturing what National Education Policy (NEP) sets in motion is an arduous task. However, there are some aspects which call for attention. First one is the incorporation of ECCE into the thinking on education and the potential positive impact it could have on early education. Another is the aspect of regulation, which is repeated in the document as “light, but tight” Committee for DNEP 2019). The institutions which are going to be setup to ensure this lighter version of regulation do not appear to be light in terms of size and powers. This would require a closer look. The third aspect is the question on underrepresented groups (URGs) and how inclusivity is going to be addressed in the new landscape of education, higher education in particular. To conclude, we will also see some interesting use of vocabulary in the policy document. Does it have a political tinge which favours the regime in power?
Early Childhood Care and Education — a Welcome Beginning
“Every child in the age range of 3-6 years has access to free, safe, high quality, developmentally appropriate care and education by 2025” (Committee for DNEP 2019). This is how the objective statement on ECCE reads. The significance of this is the acknowledgement that cognitive development in the early ages is fundamental to the outcomes during the latter part of your education. Those who miss out early, tend to miss out altogether. There is an emphasis on improving the Gross Enrolment Ratio (GER), which is pretty poor in India compared to developed nations and even BRICS. A high percentage of dropouts is an indication of the problems which exist during the early development of a child and the reasons for this are many. Kids born into less privileged social groups fail to get the necessary attention from their parents, nutritious food in adequate amount and fail to develop the necessary social skills to further help them in education. To ensure that this is available to
all kids in the country, this policy proposes to include “free and compulsory quality pre- primary education for all 3-6-year old” (Committee for DNEP 2019). This is quite remarkable and could prove to be a major step in ensuring “equality of outcome” when it comes to early education. The restructuring of the school education system to 5+3+3+4 with five years of foundational phase restates the stress given in the policy for the ECCE aspect. The foundational phase will have more activity-based learning and the play school type of curriculum could prove to be innovative enough to achieve the ECCE goals. Improved midday meal scheme could take care of the nutritional aspect of early childhood care. Integrated Child Development Services (ICDS) linked with Anganawadi system as had some success in this area and the learnings from the implementation of this could provide valuable guidance on ECCE aspect.
Light, but Tightly Controlled?
The idea of ECCE looks significant in terms of vision as well as implementation and it would appear that the concept of “light, but tight” regulation might turn out to be similar — till one tries to go deep into the details. There is an entire chapter dedicated to explaining the structure of Rashtriya Shiksha Aayog (RSA) — a new constitutional body which would be controlling almost all aspects of education including regulatory and governance aspects. Each state will setup its own RSA which would then be controlled by the RSA at the Centre. School education regulation would be with the state education commissions, controlled by the national education commission which is the overarching body. These state education commissions do not appear to be autonomous bodies and are tightly controlled by the RSA. This could prove to be a constitutional hurdle since education appears in the concurrent list with states having significant decision-making powers. The policy document proposes to constitute RSA through an act in Parliament and if RSA is to have the powers mentioned in the document it has to have an impact on the ‘concurrent’ nature of legislation on education. It would also be interesting to see how a centralised governance system could remain light and tight. The proposed regulatory bodies report to the RSA, which also has multiple standing committees, and another Joint Review and Monitoring Board (JRMB).
Changing(?) Ideas on Affirmative Action?
Autonomy in higher education is a frequent demand from several quarters. Various groups call for greater autonomy for different reasons. The presence of a large and powerful body under RSA — National Higher Education Regulatory Authority (NHERA) with the sole responsibility of regulating higher education, and National Research Foundation that could potentially call the shots on what to research and what not to — we are looking at a potentially not-so-autonomous higher education. While things appear that way when it comes to day-to-day educational activities, private institutions seem to enjoy autonomy in terms of admission and fee structure. In terms of admission, they are not bound to abide by the existing reservation norms based on caste groups and the only criterion seem to be with respect to the economic status of the family. Private institutions are free to decide their fee
while providing scholarships based on, again, the income status. With the potential of seeing an increase in participation of the private sector (Shankar 2016) in education, this autonomy could prove detrimental to the caste groups — SCs, STs and OBCs in particular. Given that GER further declines when we consider caste groups, this could have a negative impact on inclusivity and could potentially undo the positives we might achieve as part of ECCE.
Casteism and Secularism — Glaring Omissions?
Implicit endorsement of an economic basis for affirmative action is diagonally opposite to what the Constitution envisioned while talking about a social revolution that would bring about an inclusive society. Talking about the Constitution, one cannot ignore the fact that DNEP document does not invoke secularism even while talking about constitutional principles. There is a mention about patriarchy and racism (Committee for DNEP 2019) as social issues which would be discussed in the curriculum, but casteism fails to make an entry into the document. One could argue that these are not intentional and a mention of a broad spectrum of values could cover these; but talking about inclusive education without the mention of caste and religion is as meaningless as it can get, especially in the Indian context. Given the controversies we have had over NCERT text books, specifically in the recent past (TheWire, March18,2019), the apprehensions over certain omissions are justified.
Great Vision, but…
The 480-page long document is a significant effort and a lot of suggestions have the potential to transform the education sector for good. However, the power of RSA and the potential it has to encroach on the autonomy of institutions could sound as a warning. On one hand, we talk of autonomy, yet NRF could still dictate terms on research topics. The concept of topics of national interest could be further interpreted by these authorities in a way that suits the aspirations of a political regime. The idea of a liberal education could become real only when educational institutions could enjoy greater autonomy. Breaking down the entry barrier is the way to increase inclusivity, but we cannot get there by ignoring social disparities which are largely at play (Shankar 2016). RSA’s potential to override the federal nature of education- related legislation is also a worrying sign. These sections would require a rethink keeping the constitutional provisions in mind, if we were to achieve the goals stated in this omnibus.
(Rajesh K P was a Research Intern at Centre for Public Policy Research. Views expressed by the author is personal and need not reflect or represent the views of Centre for Public Policy Research)
1. Committee for DNEP. 2019. Draft National Education Policy. New Delhi: Ministry of Human Resource Development, Government of India.
2. NCERT to drop chapters on caste struggles, colonialism from class 9 history book. 2019. The Wire, 18 March. Accessed on 19 March 2019 at https://thewire.in/education/ncert-history-textbook-caste-struggles-colonialsm.
3. Shankar, Apoorva. 2016. Role of private sector in higher education. PRS Legislative Research. January. https://www.prsindia.org/policy/discussion-papers/role-private-sector-higher-
Monday, September 16, 2019
By Ayush Kukreja,
(Image source: LegalDocs)
Copyrights, trademarks, patents, etc are terms which are often non-synonymous with economic significance and put away as indifferent to the facets of micro and macro trade. It suffices to attach the notion of ‘proprietorship’ and hence the meaning of ‘intellectual property rights’ is lost. Intellectual property rights (IPRs) basically refer to industrial and copyright laws. Industrial laws can be further broken down into trademarks, patents, industrial designs and geographical indications. While copyright laws are mostly restricted to the entertainment industry, we lay specific significance to industrial laws because they bear the most relevance for the economy.
Amidst the crippling trade war between the US and China, IPRs should be given more importance now than ever. India seems to be the next target of the US conglomerates, who cannot stand the 5th largest GDP churning country free riding the tariff benefits it enjoys. India stands at 36th rank out of 45 countries when it comes to the protection of IPRs and this explains the lack of Foreign Direct Investment (FDI), investments in Research and Development (R&D) or technology transfers into the country. The year 2018 saw India at 43rd position and the renewed ranking seems definitely promising, but it was the result of the delayed effects of the one and only policy on IPRs implemented by the Indian government in 2016. It lays the bare minimum standards for IPRs implementation in India under the World Trade Organization’s (WTO) TRIPS agreement and ensures fast track procedures for startups and legislative issues.
On the surface, all this promises optimism and reform in the “Ease of doing business” index for India but the country has bigger issues in the field of healthcare to deal with, which is where the IPRs agreements and norms allow “developing countries” like India some leeway for cheaper alternatives. Methods such as ‘compulsory licensing’ and ‘ever greening’ legally allow India to manufacture drugs at highly subsidised costs. This trendsetting activity by India has made several big pharmaceuticals take the matter to the courts where India has always courted the matter in its favour. The recent Pepsico Lays vs Gujarat farmers’ case is not just all about infringement of IPRs on the grounds of genetically modified potato seeds but also casts a moral shadow over the ethics of conducting business and agriculture. Regardless, there remains an unquestionable stance on the lack of public-private partnerships. Government interests never coincide with corporates and nobody seems to be least bothered about investing in India.
TRIPS Agreement saw the shift in India’s policy from ‘process-patents’ to ‘product-patents’ which was a huge transitional move away from the reverse engineering technique which the Indian manufactures would apply to get to the product without putting brains into it. There seems to be substantial upliftment in the R&D sector, but the lack of other forms of investments has hindered the incentive generation process. Returns on borrowing money from the banks are usually higher and have a short-time window. One dollar invested through venture capital channels certainly bears more outputs than one dollar invested in the R&D sector. Labour, capital and manufacturing are no longer the driving forces of the economy and this is the realisation India needs to have. Innovation and entrepreneurship should be the primary objective initiatives likes ‘Make in India’ and ‘Startup India’ need to devise. Globalisation as a blanket force, undeniably requires a “keeping up with the trends” strategy which Japan’s software industry failed to realise in the 90s and was forced to copy IBM illegally, following which the FBI’s probe sent the Japanese economy for a major setback.
WTO rules need to be complied with formal measures and India cannot make its membership value vulnerable to threats. US Chamber of Commerce ranks countries taking into account six indicators: patents, trademarks, copyrights, trade secrets, market access, enforcement and ratification of international treaties. The infrastructure required to enforce all this is already in the pipeline but pragmatic shifts in the nature of bilateral and multilateral agreements made by India in the arena of technology transfers will bear serious answers to the problems we are faced with. A storm of ‘intellectual’ wars awaits if India fails to realise the gravity of the situation.
(Ayush Kukreja was a Research Intern at Centre for Public Policy Research. Views expressed by the author is personal and need not reflect or represent the views of Centre for Public Policy Research)
By Puja Meiyammai S,
(Image source: Smart Prosperity Institute)
What are green bonds? How can they tackle major environmental issues faced by India and save the environment for the future generation?
In the early years, institutions like banks and non-banking sectors financed environmental projects. However, a huge investment requirement for these projects made it financially unviable. Thus, the concept of green bonds came into existence to keep these projects on track.
Green bonds are fixed income financial instruments that are lined up in the process of promoting and implementing climate change and environmental solutions. The funds are raised by issuing bonds to investors who are interested in financing green projects. The green bonds assure the investors of prompt repayment of the amount that is borrowed by remunerating them with either fixed or variable rate of return. Second, they create positive public relations and help in diversification of investors.
The green bond market in India has been flourishing for the past three years. It came to existence in 2015 when YES Bank issued the bond for solar and wind energy projects with an amount of $1.1 billion. The green bonds issued in India are certified by the United Nations Framework Convention on Climate Change (UNFCCC). Following this, in January 2016 SEBI announced the official green bond requirements for India and made it the second country to establish a national-level guideline plan next to China. Successively, a circular containing disclosure norms was sent out with all the information about the issuance and listing of green bonds in India.
In the Union Budget session of 2018, it was proposed that only A-rated green bonds are to be accepted for investment and not AAA-rated bonds. This was to help the corporate bond market expand further as green bonds are sub-sets of corporate bonds. As of 2019, India holds 8th position in the green bond market with a market value of $7 billion. India has announced a target of 175 gigawatts of renewable energy capacity that is to be achieved by 2020 and currently we have only 30 gigawatts. In order to achieve this target, India will need a large amount of money. Additionally, since we are a developing economy we need to be careful in selecting investors, especially in the backdrop of the USA recently withdrawing from the UNFCCC Paris agreement. Due to this exit, pressure on the developing economies has increased as now they would not be able to get investors from the USA, which forces them to find more domestic investors to increase the source of funds. In order to be successful in finding domestic investors, India needs to overcome the barriers like lack of proper measures for this nascent financial instrument, consider diversification of sectors and try to include national institutions, as till date only state and state-owned institutions are the issuers of green bonds. Also, it should come up with new ideas to attract more domestic investors. After rectification or overcoming these barriers, India would be able to use these bonds to tap more resources and use them wisely than the other developing economies with properly equipped technologies.
(Puja Meiyammai S was a Research Intern at Centre for Public Policy Research. Views expressed by the author is personal and need not reflect or represent the views of Centre for Public Policy Research)