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CIIPC – CPIP Conference – Back to Basics : The Role of Property in the IP System

The Centre for Innovation, Intellectual Property and Competition (CIIPC) at National Law University Delhi and Center for the Protection of Intellectual Property (CPIP) at George Mason University, Washington D.C. organised the conference: “Back to Basics: The Role of Property in the IP System” on March 22-23, 2018 at National Law University Delhi. The conference began with the welcome address by Prof. (Dr) G.S. Bajpai, Registrar, NLUD and Prof. Mark Schultz, Professor, Southern Illinois University School of Law and Director of Academic Programs at CPIP.

The Welcome Address can be accessed here

The final programme can be accessed here

All pictures of the conference can be viewed here

The first panel was invited to the stage for discussions on ‘Why Intellectual Property is a property right and why it matters?’. This panel was moderated by Prof. Mark Schultz and the speakers included Prof. Sean O’Connor, Prof. Jay Kesan and Mr R. Parthasarathy. Prof. (Dr) Raman Mittal and Dr David Lund presided the panel as discussants.  It was noted that the question of whether IP is a property right is very consequential for regulatory certainty. Both ex-ante and ex-post rationale for the IP system were elaborately discussed. The challenges presented by a service economy would see more and more people pulling materials behind paywalls and the consequence for how we think about IP was discussed. Also, how India views IP system as a property right in the context of several ruling of the courts in tax matters was elaborately discussed. The implications of IP as property for fueling knowledge transfers was the focus of this panel.

The video for panel 1 can be viewed here

The second panel was on ‘Intellectual Property as a Property Doctrine’ and was moderated by Prof. Yogesh Pai. The speakers in the panel were Prof. (Dr) Ramakrishna Thammaiah, Prof. Adam MacLeod, and Prof. (Dr) Feroz Khader. The discussants were Mr Ashutosh Kumar and Mr Eashan Ghosh. The panel discussed several important questions with doctrinal implications in the context of IP and property. Because all IP includes the right to exclude, injunctions play a significant role. There are certain implications of all of this. First, if the nature of the rights is exclusion, how far do the remedies follow the rights. Secondly, even though IP is structured as property, each of the various forms of IP rights have their own variations. The implications of the shift from property rules to liability rules (both in the context of eBay decision of the US Supreme Court and Indian court rulings) was discussed. The consequences of granting interim injunctions when patents are invalidated on trial was the focal point. The panel also deliberated upon reasons that make IP (more so patents) different from other property rights as a consequence of textualisation.

The video for panel 2 can be viewed here

The third panel titled ‘The Innovation Industries: The Value of Patents & Trade Secrets’ was moderated by Prof. Jay Kesan. The speakers for the session included Prof. Mark Schultz, Prof. (Dr) Prabuddha Ganguli, and Mr G. Nataraj. Ms Sunita Sreedharan and Dr S. K. Murthy were the discussants of this panel. This panel focused on the role of trade secrets in the context of India’s common law protection. The panel also focused on unique challenges to the property notion of IP in the context of artificial intelligence. This was followed by a dialogue on how practitioners view trade secrets and patent protection. Panelists discussed if they were clear alternatives or whether go hand-in-hand and whether or not a one size fits all approach to patents for all technologies is relevant.

The video for panel 3 can be viewed here

The fourth and the last panel of the day, discussed the role of ‘The Creative Industries: The Value of Copyrights’ and was moderated by Prof. Sean O’Connor. The speakers included Prof. Sandra Aistars, Prof. Eric Priest, and Prof. Prashant Reddy. The discussants for this panel were Dr Achille Forler and Mr Ananth Padmanabhan. Panelists discussed the implications of weakening of copyright protection in favor of the copyright exceptions industries and the importance of the principle of technology neutrality in copyright protection. Drawing universal lessons from research on Chinese creative industries, it was observed that the existence of transferable property rights enables the existence of markets for creative works by allowing monetization and by helping create ‘transferable assets’. The panel further discussed how copyright as a property regime evolved in India through history. The panlist also noted with surprise how the authors in India took the lead in fighting for copyright. Usually the authors are the weaker parties as the publishers and other actors are overwhelmingly powerful. Panelist also noted that perhaps the property story is taking a backseat and the data story is taking over in the context of digital platforms.

The video for panel 4 can be viewed here

This was followed by a keynote dinner at Hotel Radisson, Dwarka. Prof. (Dr) Arul George Scaria, (Co-Director: CIIPC) introduced the keynote speaker Mr Dhanendra Kumar, Honorary Principal Advisor, Indian Institute of Corporate Affairs and Former Chairman, Competition Commission of India. Mr Kumar delivered the keynote on the topic: “Innovation in the Digital Economy: Challenges for Competition Law and Policy”.  This was followed by a soulful musical performance by Prof. Sean O’Connor, University of Washington School of Law, Seattle, United States.

The video of the keynote can be viewed here 

On 23rd March (Day 2 of the conference), the fifth panel discussed “Intellectual Property & Competition Policy”, which was moderated by Prof. Jay Kesan. The speakers for this panel were Dr Geeta Gouri, Mr Alvaro Ramos, and Prof. (Dr) Vikas Kathuria. The discussants for the session were Mr Ashutosh Kumar and Mr Pranav Mehra. The panel began with a discussion on Incentives and Liabilities in the context of IP and competition law by recognizing the relationship between law and economics since both operate within bounded rationality and hence presents unique challenges. The question of symmetry between IP and property in the context of competition law was elaborately discussed. It was noted that selling IP protected products (especially in the context of trademark exhaustion) on a two sided market becomes more complex. Holdup and holdout theories including evidence in this context was discussed by panelists. Finally, the panel discussed how the role of competition law in the context of IP was to only protect the competitive process rather than the outcomes.

The video for panel 5 can be viewed here

The final panel, titled “Intellectual Property, Innovation, and Economic Growth” was moderated by Dr Shubhashis Gangopadhyay. The speakers included Prof. (Dr) Amit Shovon Ray, Prof. (Dr) Kristina M. L. Acri, and Prof. (Dr) Lalitha Narayanan. Dr Amit Kapoor and Mr Parag Kar chaired the session as discussants. The question of how IP and alternatives differ in terms of economic efficiency was discussed in the context of  costs and benefits of the IP system. Other panelists disagreed on non-market alternatives to the IP system. Panelists discussed how the most innovative economies are those with strong IP protection. The discussion in the context of GI protection and its linkages with economic development focused on how obstacles to growth as collective IPR, the benefits should accrue to all those who are able to reproduce the uniqueness associated with the region. The panel noted that there are countries which are stuck with inherited prosperity and on the other hand, there are countries with created prosperity. Hence IP contributes to ecosystem linkages in order to boost innovation or competitiveness. It was noted that as the service sector becomes important, it requires investment in human capital, which is often lost sight of in the IP and innovation debates. The question of how do we help creation of assets or do we leverage IPRs to help manufacturing sector in the context of India’s abysmal participation in standards development process remains a challenge. The panel noted that all this would invite a fundamental thinking on the role of IP in economic development.

The video for panel 6 can be viewed here

The conference concluded with a brief address to the gathering by Prof. (Dr) Ranbir Singh, Vice Chancellor, NLUD and vote of thanks by Prof. Yogesh Pai, Co-Director, CIIPC. He profusely thanked Ms. Shrinkhala Jaiswal for coordinating the entire conference and the student volunteers and support staff at NLUD for executing the tasks with a sense of responsibility.

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