IPR 2 PART 2

Transcribed by TurboScribe.ai. Go Unlimited to remove this message.

Nothing, okay, but understand that if you don't engage then I will keep on teaching a lot more.
So if you want the portions to be smaller for the exams, try to do a lot of discussion otherwise I
will keep on talking and it will keep on coming in the exams. So it's a self-fulfilling circle,
discussions basically.

Anyways, so this reading, how I plan to take it, we won't go page by page, he said this first, then
this, then this. Let's do something different, we will start from the last page, okay, because a lot
of, some people would say, don't read this book from the last page, it will be a spoiler. We will
come to the spoilers first, we will do something different.

So the last part of the reading basically talks about the value of theory itself, theory. So I
personally think he should have put this section in the very beginning, what we are trying to do
basically. We are trying to see the value of theory for our discussions, which is sometimes a bit
hard to grasp or agree, but he does it towards the very end, like value of theory.

So two things he says about the value of theory, one, at one level he says that theoretical
discourse, theoretical discourse, right, yeah, so at one level he says that theoretical discourse,
what it does for us is it introduces us to all these problems in a more multifaceted or
multidimensional way. So if we only have one understanding of it, we will arrive at solutions
from one understanding of it, and we will ignore the other issues that are happening with it. So
that's what he says that, or helps to explain why codes when presented with, yeah, there's
theories they can help identify non-obvious attractive resolutions of particular problems.

So that's what he means here as well, that sometimes it is non-obvious as to what kind of
solution has to be proposed, to be arrived at, but the first level, the first step itself is to
understand the problem itself in the very beginning. If you don't understand the problem itself
properly, the solution that you will come to would again be half-baked, half-cooked. So he uses
the example of, yeah, we'll take that up now, the Bashneer-Grover thing, right, did you read the
Fisher thing? He uses this example very, very good, very, very expertly he uses it.

Yeah, so, towards the end, I'll give you a hint, we're talking about the end, so, yes. You must
have read about that article that you yourself shared, that you must have read, right? Yes. So,
what they're basically talking about is personality rights or rights of publicity, right, because
what he's trying to do is, he's trying to create a brand name of himself and trying to stop others
from using it to publicize their interests, their commercial interests, to advance their
commercial interests.

So, that's the basic idea of publicity rights over here. In India, it is being done by trademark law,
through trademark law, but that's, it can be done differently as well. A lot of judicial precedent
in other countries, they give right, they have a more interplay between right to privacy with this,
and how publicity rights help you maintain your right to privacy, other ways of dealing with it as
well.

Here, we are seeing it from the point of view of trademark. That's just a way that they have
expressed it. And it doesn't, like, that's not the only way is what I'm trying to say.

But, so the larger concept is the right to publicity of your own personality, personality rights,
basically. So, how Fisher deals with it for his first problem about, for his first point that he
makes about the value of theory. He says that value of theory, it gives us unique perspectives to
a situation.

So, he discusses all the four theories that we are going to talk about from the point of view of
this personality rights thing. Right? So, first is your, he says economic perspective or utilitarian
perspective. From there, he says that, so utilitarian perspective inherent in the IPR area now.

I'm moving towards this. We are still not talking about the Banthamwada. That was much more
rudimentary.

Now, we are talking that it has an undertone of economics always in the IPR area. So, because
they had to modify it to apply it to IPR. So, what he says is that the IPR, the utilitarian or
economic theory of IPR is inherently based on you being, on a creator being incentivized to
work more, to create more, then you give him a reward, then he creates more, then you give
him a reward, that way.

But, when, once you give a certain person a personality right, that stops further creativity. So, it
is antithetical to the utilitarian dream of a carrot and a stick, basically. That the carrot always
hangs in front of the stick, so you keep moving forward towards it, but then the stick moves
and the carrot moves and you keep going forward.

So, that's what he says about the utilitarian theory, that it sometimes means that a person who
has a personality just keeps coasting through on that personality itself rather than improving
on anything. The second theory he talks about is labor, as we were discussing that there is
some property, you put your labor into it, it should, the result of that should be yours. He says
that labor here would fail because personalities are not just a, it is much more nuanced, it is
much more complex.

Personality is not always out of labor. He identifies certain areas. He says that fame results from
luck sometimes, from fickle public tastes.

We know that a lot today in the social media space, a lot of people and personalities are, you
are like, how did he become like this? So, yeah, fickle public tastes are always present. And
again, those people, the people that you think have fickle public tastes think that you in return
have the more fickle public tastes. So, who knows? Nobody knows.

So, that's how this theory fails to provide for that. Personality itself cannot be bracketed into
labor or your effort only. And sometimes it's also about the efforts of third parties that are
associated with you.

You, people have a big PR team, public relations team. You cannot compete with them. For
example, I cannot run for PM because I don't have a PR team.

Right? So, that might happen. So, yeah, this is the other point. Then he talks about personhood
itself.

So, the personhood theory, the personality theory is another part of the moral rights
perspective. And he says that when you give somebody the ability to make money from their
persona, it again leads to the loss of autonomy over your personhood. So, it is a system where
you incentivize decreasing personhood or decreasing personality.

Right? Personality doesn't remain your own. It goes into, it becomes a thing of its own. It
gathers speed and it gets out of control, basically.

So, it fails from the personality perspective as well. Okay. So, see, personality theories, the
personality or personhood or autonomy theories say that IPR should be such that it allows you
to fuel your individuality.

To fuel your personality, to create it and to conserve it. But when you have a, when you have
personality rights, which are inherently coming from the public, then your autonomy, that
autonomous space over your personality that you have decreases. Right? So, for example, if
somebody, if once your image becomes of a certain kind in the public sphere, it gets a life of its
own, basically is what he is trying to say.

Right? Then you can try as much as you can to change it. Sometimes it can't. It's not in your
hands.

So, his autonomy is not as, is not in the kind of autonomy that you have over your personality
then. Right? So, that's what he said. It might fail from that perspective as well.

Lastly, he comes to the social planning theory and he says that it somehow centralizes the ideas
of, of this personality worship of one person. Personhood worship starts. And that takes away
your own semiotic powers, your own democratic powers to choose.

Because once a certain kind of personalities start becoming famous on the public sphere, they
will remain that way. Everybody will be that way. So, the person who is watching it has less
power to affect it.

So, from a social planning perspective also it fails because then it will lead to a society which is
less diverse. It will only be a parodization. Right? It becomes almost like a parody of itself.

To what level those people will go to have a certain personality. So, he says, see, this is what he
is trying to say that when theories are there, you have different ways of looking at the same
thing and appreciating it and when you arrive at a solution, it will be much more pluralistic in its
form. So, that's his one first reason for engaging with theories.

The second reason, he says, is quite straightforward. Second and third is almost the same.
What he says is that it allows for a better discourse among the stakeholders in the society.

So, for example, sometimes, so, he takes the example of judiciary and congress because they
call it congress, the legislature, basically. And enforcement agencies, patent office and all those.
All these people, he says, have a bit of a disjunction.

But when you, if you express your vision, one of these instruments of the state, like congress or
something, if they express that we are trying to create this sort of a law, then the other wings
can get on board with it or if they have a disagreement, they can exactly tell them why this
would not work for them. Otherwise, what he says is that congress makes a law and all of a
sudden it is realized that the judiciary cannot implement it in the proper way and the
enforcement agencies, the state agencies, they have some other problems of, like practical
problems regarding it. So, he says it leads to a better discourse as well.

And then he says that the third point is related to it. Basically, it's an offshoot of it. That it also
leads to a better discussion between the state and the people who are the civil society,
basically.

The public, the civil society organizations, NGOs, think tanks and all. That's the kind of idea that
he is trying to bring in. So, this is about the value of theory that he talks about.

So, the reason for doing this before is, so at least we know that why are we discussing like
theory. Why don't we just go to like section 2, copyright, originality, works, there are this kind of
works, literal, non-literal, and then bye-bye. Why we are trying to think on a deeper level,
basically, is why I took this part before taking on the actual theories of it.

So, now coming to the theory part of it. So, did someone read at least the first part,
Utilitarianism? Utilitarian and... So, Utilitarian, right? So, you are really Utilitarian with your
approaches, right? I will read two pages. It will start from the starting.

It will be fine if I read two pages. But you didn't know that you will start from the end. So, yeah,
Utilitarian, what were your thoughts about like, what are your basic thoughts about
Utilitarianism itself? you are BA and you will be matched, so you must have done utilitarianism
at some point.

BBA people had no idea about it. Maybe they were not being very true, maybe. But... They were
saying that we have never studied utilitarianism.

I asked him, why? You came up with a very controversial statement. Fine. But, yeah, anyways,
utilitarianism.
So, you must have had an idea, right? So, I drew the wrong flower? He said that BBA people had
no idea about it. Okay. So, anyways, anybody else? That's fine.

That's a good way of looking at it. On a basic level, that's where the two of them differ. So,
utilitarianism, if you have read it in, I don't know, PoliSci or OSHO or something, that's pain and
pleasure.

So, that is the basic level of utilitarianism. What they say is that they visualize social welfare as
the greatest good of the greatest number of people in that manner. That everybody tries to
maximize their pleasure and minimize their pain.

So, that's how they see it. But, in the IPR space, that's what Fisher is trying to bring about in his
reading that these people have a very different understanding of utilitarianism. They have
taken a much more modified or a much more nuanced look at it.

So, they just couldn't abstractly talk about pain, pleasure, IPR. Aisa nahi ho bata ho. So, they
based the social welfare on economics, basically.

So, what they said was, what they have tried to say is that when you avoid economically
inefficient results, social welfare will climb. Cost saving, basically. So, they play with these two
things.

Cost of expression and cost of production. So, he says, imagine if there is an absence of IPRs.
So, you will have a cost of expression.

That's always present. Cost of expression means that you are a creator. You create something,
some content or some creative content, basically.

You are an innovator. You create something which has never been done before. That takes a lot
of investment into it.

Those are your costs of expression. For example, if you are an innovator, a lot of price must
have been paid, a lot of investment must have been made in your conditioning in order to
become that innovator. That would include your education, the kind of research opportunities
that were provided to you by the state or by private organizations or whatever.

Those are your costs. Your conditioning since your childhood. Those are all the costs that went
into it.

Now, those pile up every time you create some product. Cost of production, if there was no IPR,
would be very less. So, if there are two persons, one person says, I will create something,
something new.

And the other person says, why should I create? I will just copy. Copying is so much easier. So,
he will just say the very cost of production then become very minimum if there is no IPR.
So, a system like IPR had to come about where the costs of expression, where the costs of
production were artificially inflated. So, you created the system outside it where you say that if
you copy from someone, then you will have to pay a lot of costs through injunctions, through
compensation, all of that. So, then you bring both of these things on the same level.

Cost of expression and cost of production. Otherwise, if there were no IPR, everybody would be
incentivized to copy somebody else. So, everybody would keep waiting for somebody else to do
it.

Like it happens in the class as well. If someone is taking notes, I will take it from here. It will
work.

Rather than taking your own. So, that way costs of production are brought on the same level.
And that's the basic purpose of the law, he says.

Another level on which he talks about it is if it tries to... IPR laws basically they try to reduce the
cost for the public as well. They reduce social wastage of resources. So, he takes the example
of, if one of you read it, of Cheerios, the cereal that you get.

So, a lot of people prefer it, Cheerios. And a lot of people would like to have it from the market,
like the original product itself. Now, if there are no IPRs on Cheerios, you can't trademark it, you
won't have a trade name of Cheerios.

Everybody would put Cheerios on their labels and sell whatever products they have. Now, this is
social wastage because the public's time and resource will get wasted if there is no right over a
particularly unique identity of Cheerios. So, that might happen.

So, that's how he, again, tries to explain the economic perspective. So, what they are trying to
say is that there is an undertone of economics always present when you talk about IPRs. And
that's the way, they say it is the best way to explain IPRs.

Right? That's their basic argument. Now, what tools that they use, maybe we'll do it in the next
class because there is only, it's like 2 already. We'll do a round of attendance.

Transcribed by TurboScribe.ai. Go Unlimited to remove this message.