by R. Neethu
In 1939 Gandhi wrote: “My Trusteeship concept will survive all other theories” (Harijan, 16-12-1939, p. 376). Though his concept was articulated in reference to colonialism and independence, it has managed to survive the passage of time, becoming revitalized in this twenty-first century. The root of the Gandhian doctrine is equal distribution of resources. The resources of the world are held in common, and hence anyone who secures the bridle to control the use of resources needs to be reminded about the ‘trusteeship role’ that she has in the exploitation and utilization of such resources.
Does this require dispossession of the material wealth gained by owners? Interestingly, the answer in the Gandhian doctrine lies in recognizing the owner’s capability with respect to securing the wealth amassed by her. By contrast, if the state takes away the wealth from its owner, society will be the poorer, for it will lose the gifts of the person who knows how to accumulate wealth. The ideal strategy, according to Gandhi, would be to retain the owners’ stewardship over their possessions and to use their talent “to increase the wealth, not for their own sakes, but for the sake of the nation and, therefore, without exploitation. The State would regulate the rate of commission which they would get commensurate with the service rendered and its value to society” (Harijan, 31-3-1946, pp. 63-64).
While the Gandhian flavour blends well with an ideal conception, its enforceability is problematic. Gandhi finds the solution to this in the role of the state in ensuring that the profits gained by possessors of material wealth do not outweigh the benefits it may offer to society. Gandhian trusteeship does not recognize any right of private ownership of property except insofar as it may be permitted by society for its own welfare. The two distinct features of the trusteeship philosophy are, firstly, that the concept of private property is not self-negating so long as it does not become an autocratic tool for exploitation, and secondly, that private property is not a matter of right, and in its conception ought not to distance itself from the duty its possession encompasses.
Reading Gandhi into an intellectual property law framework, one finds juxtapositions seemingly at every turn. This is particularly evident in matters with a larger social interface like access to invention (including drugs) or creative works (fair use for study) or protection of culture and environment. Recall that the trusteeship philosophy did not completely reject private property, but instead recognized the skill and efforts invested by the one who created the property.
Gandhi’s philosophy is compatible with the utilitarian grounds for granting intellectual property rights. Although intellectual property regimes, domestic and international, seek to incentivize creativity, they also secure society’s interest in benefiting from the invention. Indeed, since the first ever intellectual property statutes like ‘The Statute of Ann’ or ‘Statute of Monopolies’, intellectual property regimes have sought to improve societal benefits by balancing the need to protect creativity along with allowing others to enjoy its fruits. The task is to find a middle ground between Hardin’s tragedy of the commons and Heller’s tragedy of the anti-commons. Both extremes lead to underuse and waste of intellectual resources. In the cultural sphere, ever tighter restrictions on copyright and fair use limit an artist’s or creator’s abilities to utilize the resource and ‘work on’ or develop the same. They can also prevent the dissemination of information and knowledge. In the field of science and technology, the effect of such a problem is expressly visible. Patent term and its extension, ‘patenting anything under the sun’ and, consequently, efforts to patent things like gene fragments have been retarding drug development, by making it hard to create a new drug without licensing several previous patents. The recent case of Association for Molecular Pathology v. Myriad Genetics decided by the American Supreme Court in June 2013 is illustrative of this problem.
How does the Ghandian outlook resolve this tension? As per Gandhian trust philosophy, right holders must place a restriction on self-interest by finding a way to discharge the fiduciary obligation they have. The equitable distribution system under his philosophy requires ‘what is essential,’ no more and no less. A more concrete application of this approach would suggest that individual right holders should be required to limit self-interest in acting as a trustee. In the IP framework, that means less commodification and monopolistic exploitation by the right holder. Thus, the creator must offer society better access to his works or allow usage of his inventions to encourage research and allow creativity to grow in the society. Using TPM (Technology Protection Measures) or other tools in limiting access must be reconsidered in the light of the benefit the work can offer to the society.
What would be the role of the state that regulates IP? While individuals and corporations may be required to limit self-interest in acting as a trustee, the state has an obligation to execute the will of the society and hence limit exploitation by individual right holders. The state would therefore regulate the rate of commission (the ‘exclusivity rights’ in an IP regime) which the right holders get commensurate to the service rendered and its value to society, and would also contribute to the larger benefits of the trust by utilization of resources in case the right holder did not pitch in to the trust effectively. The 2013 Novartis v. Union of India judgment decided by the Indian Supreme Court may be illustrative of this tendency: the state, through the court, restricted the IP protection after carefully balancing the rights of the IP owner against societal needs.