People's Democracy

ENCOURAGING COMMODIFICATION OF SCIENCE

A New Threat To   Knowledge Commons

Dinesh Abrol

A NEW bill entitled �The Protection and Utilisation of Public Funded Intellectual Property Bill 2008� was introduced by the union minister of science and technology in the last session of Rajya Sabha. It seeks to lay down through central legislation the protection and utilisation of public funded intellectual property is slated for consideration in the Standing Committee of Parliament for Science, Technology and Environment on January 27, 2009. The supposed benefits of the bill providing compulsorily for protection and utilisation of intellectual property originating from government funded research are commercialisation of inventions, generation of revenues for public sector research institutions (universities, CSIR, ICMR, ICAR, MoEF, MoCIT and others), science based economic growth and national competitiveness. The minister of science and technology has also claimed that the new bill would provide the public sector research institutions and universities more independence and autonomy from the State bureaucracy. The inspiration for this bill comes from the US Bayh-Dole (BD) Act of 1980 which encouraged American universities to acquire patents on inventions resulting from government-funded research and to issue exclusive licenses to private firms.

Going by the much analysed and publicly available evidence, even in the case of American universities, it is well known that all the claimed supposed benefits are not attributable to the BD Act. There exists contrary evidence which shows that licensing fees constitute only 5 per cent of total research grant revenue generated by American universities since the enactment of BD Act of 1980. As far as the gain of encouragement to technology transfer or commercialisation of inventions originating from publicly funded research is concerned, it is again clear that the two most remunerative patents, namely the Cohen-Boyer Patent for Recombinant DNA and the Richard Axel Patent for Co-transformation, which have earned a substantive amount of money from licensing fees for American universities were commercialised before the enactment of BD Act of 1980. And what is equally important that the money earned from, for example, Cohen Boyer Patent for Recombinant DNA was through the route of non-exclusive licensing. It is also important to keep in mind that just 8 or 9 research universities have only been able to earn licensing fees to the level of about 15 per cent of total research grant revenue.

SIGNIFICANT  NEGATIVES

Information available regarding the negative impact of the BD Act is far more significant and worth keeping in mind while we consider the introduction of our own BD version in India. In United States, as a consequence of the implementation of BD Act, the practice of intellectual property based restrictive access to universities� inventions has led to a reduction in the diversity of collaborators and users. Throughout the history of development of American universities these institutions were free to interact with diverse set of collaborators and users and made the results of their research possible and accessible through the public domain without being chained in any way by the culture of patents as a way of interacting with the world of collaborators and users. Longitudinal studies undertaken for American universities have shown that the reduction in diversity of collaborators and users is affecting them adversely. The culture of sharing of knowledge and materials and public debate are under severe stress. Conflict of interest arising out of researchers subordinating themselves to private corporate interests is becoming a common problem in the case of American universities. Research problems are framed in a narrow manner. This has led to the practice of science which is often ending up ignoring totally the likely environmental and health and climate change related costs of research applications being commercialised.

However, it is important to bear in mind that Indian universities are not even as mature as American Universities and are yet to institute a culture of research. Most of them are teaching universities. Since the Indian universities are still in the early phase of building research culture, our equivalent of BD Act would come in the way of building a healthy tradition of research. Universities must maintain autonomy from both the State as well as the corporate capital. Academic autonomy of universities has been guaranteed by the State and should not be compromised through such an Act which subordinates the research of Indian universities to the corporate world. Fortunately, at the moment patenting activity is not the prevailing culture in Indian universities. Varieties developed through agricultural research were freely available and became the basis for green revolution in India.

INDIAN

SCENARIO

As far as the leading participants from the university sector in patenting are concerned, it is evident that institutes of national importance are the main players.

It is quite clear from the accompanying table that presently very few academic organisations can really claim to have the wherewithal to undertake research work for inventive activity. Their contribution to the production of inventions is via the production of basic research, for which the required resources and culture are heavily concentrated and exist in a skewed manner in central universities. The Indian Institutes of Technology (IITs), Indian Institute of Science, All India Institute of Medical Sciences, and the University of Delhi are the key players in patenting at the moment. But there too the patenting activity is a new feature and has been pushed by the decision makers more as a way of assessing the contribution of faculty to production of knowledge applicable to inventive activity. If the university is to be utilised as a contributor to inventive activity or technology development, it would be better to strengthen incubation, spin-off and technology transfer activities. These activities would need very different kind of instruments. Strengthening the capacity for patenting is hardly the way to go about involving the university sector in technology and transferable knowledge production. There is a worldwide movement growing for open source and open innovation models and the lead is being taken by the academics. Industry too is beginning to emulate these institutions. This movement is no more limited to information technology. It is spreading to bio-technology, agriculture and pharmaceuticals.

Let us learn from the incidence of conflict of interest instances growing in the American universities on account of encouragement to the processes of commodification of knowledge. It is possible that a section of our scientific community would see in this legislation an opportunity for monetary incentives for the contributors to knowledge and innovation. Prizes and research perks are a much better mechanism for encouragement to the scientific community. Let the soil remain fertile for challenging work through the mechanisms of support to research in Indian universities. Further, it may be also kept in view that in the case of industry, patents perform the function of blocking others from entering into their markets. In the case of universities, however, we need diversity to be encouraged at the end of collaborators as well as users of research. The whole talk of preparing the eco-system through this act for commercialisation of knowledge in the case of academic organisations is a misguided step. In my view, history tells us that academics should be engaging with a diverse set of collaborators and users to do sound science and not be tied to one or other business house.

Experience tells us that in the case of CSIR laboratories, where patenting has been practised, it has added to the cost. Revenue generation could never be realised through aggressive patenting that the system chose to encourage in the recent times. Further, even under the NMITLI programme, intellectual property rights are accorded to industrial partners where the collaborative research is the explicit target. Damage done by the culture of disputes over royalty and licensing fees has been our experience. Several examples of the reluctance of scientists to openly communicate and share results and materials can be cited as evidence of how this instrument might end up working ultimately in the same manner in the case of universities too.

NEED FOR

SAFEGUARDS

The challenges of the day demand that Indian universities are left free to build a culture of operating through public domain and cultivate the necessary conditions of healthy research. These institutions have a special role to play, which is one of a resource being available to public for objective public criticism. These institutions have contemporary challenges of development and poverty reduction to contribute, and the Indian public should not be made to pay twice and that too heavily both as tax payers and consumers.

Finally, in case the current political and bureaucratic leadership is insistent on using the instrument of intellectual property (patents, copyrights, plant variety protection, etc) for incentivising the researchers, I have the following safeguards to suggest to parliament for the purpose of inclusion as amendments: 1) Provide in this legislation for the institutionalisation of the practice of open source culture of knowledge protection and utilisation in medical and agricultural research, 2) Prohibit legislatively exclusive licensing and insist on the use of practice of non-exclusive licensing / licenses offered by Creative Commons to ensure the protection of public interest in publicly funded research, 3) Introduce clauses to create legislatively the infrastructure needed for incubation of inventions within the academic organisations in particular, 4) Provide legislatively a mechanism for the monitoring of conflict of interest which is bound to arise on the introduction of intellectual property based relationship with the users and corporate world in particular and 5) Introduce penal provisions to prevent the institutions from indulging in the violation of public interest and research ethics.