India Fights the Criminalization of Shared Property
By Staff News & Analysis - November 29, 2012

A License to Steal … India Skirts Patent Laws to Help Companies and Poor … For years, India has refused to respect the patents of foreign pharmaceutical companies suspected of slightly altering their drugs merely to extend their profitability. In doing so, it helps not only the growing number of domestic generic drug makers, but also the millions who can hardly even afford the copycat drugs. – Der Spiegel

Dominant Social Theme: Contravening copyright is thievery.

Free-Market Analysis: Patent is not copyright but increasingly the two are being treated in much the same way these days. Both terms are expressions for law enforcement efforts to control what we can call "shared property."

The problem, especially in the modern era, is that shared property is replicable property. Drugs and movies come to mind. Today, drugs and movies are easily created and moved from place to place. It is a recipe for endless legal warfare because the state's determination to snuff out the uncompensated use of shared property is in conflict with what used to be called natural law. In other words, it can't be done.

This is, in fact, the reason that both copyright and patent law are under increasing attack. When the state tries to enforce laws that are unenforceable, the underlying paradigm eventually, inevitably, receives scrutiny. In New Zealand, Kim Dotcom – accused of copyright violations – is receiving an increasingly sympathetic hearing from judicial officials who believe he is being bullied by US law enforcement agents.

Copyright used to be an exclusively civil matter but the treatment of Dotcom has made clear how much its status has changed. Dotcom at one point lost everything from his freedom to his company to his assets. Some of his assets have been unfrozen but he is still in legal jeopardy, at least so far as his freedom is concerned.

The law and reality exist only uncomfortably side-by-side. A study that we recently reported showed that when certain media was downloaded, it actually had a beneficial impact on sales. Additionally, as Dotcom has pointed out, the strategy of releasing movies gradually around the world is an invitation to copyright violations. Movies are easily re-filmed and then resent around the blogosphere.

Now there is this article in Der Spiegel drawing attention to copyright violations in one of the more populous countries in the world. We weren't aware of this controversy but given what is going on generally with copyright and patent law, we're not surprised.

This is not a hypothetical issue. Despite the insistence of cadres of lawyers, politicians and law enforcement officers in the US and elsewhere, copyright is becoming not only a controversial subject but also a much flouted legal standard.

Much of copyright and patent law currently contradicts what we mentioned above – natural law, which used to be the standard from which jurisprudence was measured. Throughout history even a king, if he issued laws that were obviously difficult to enforce, was seen as a tyrant and not necessarily worthy to lead. Only in the past few hundred years has it become stylish to define law as legislative rather than immutable.

For most of human history there were easily recognized laws that the state – such as existed – was obliged to recognize. For instance, one's property was seen as fairly inviolable (extant war, anyway). To make it otherwise contradicted natural law. But these days a plethora of legislative elements reduce the constancy of contractual rights to ownership. There are issues of taxation, right-of-way, divorce and numerous other considerations, all adjudicated by the state itself.

We should also point out (as we have in the past) that the whole idea of state involvement in justice is a relatively new concept. Throughout history there have been numerous manifestations of what we call "private justice" in which third parties reviewed infractions and then "judged." Additionally, people often solved quarrels among themselves.

The idea of public justice is in some sense fraught with conflicts of interest. Almost every part of the Western world's current system is funded by the state, from the judges themselves to the prosecutors, to the law enforcement officials and penitentiary operators.

When it comes to copyright, the same sort of process is in play. The big media companies and pharmaceutical companies want copyright enforced and they support significant lobbying efforts to ensure that their business paradigms are enforced. In India, however, other forces are at work, evidently. Here's some more from the article:

Two uniformed attendants in turbans push open the large wooden door to Courtroom No. 5 at India's Supreme Court, in the heart of New Delhi. Then white-haired Judge Aftab Alam and his equally dignified, gray-haired colleague Ranjana Desai take their seats. Across from them, an army of lawyers in black robes prepares for the next round in the legal dispute between Novartis, the Swiss pharmaceutical giant, and the Indian state — and, or course, the domestic pharmaceutical competition.

For the last six years, Novartis has been fighting over a patent for its cancer drug Glivec, appearing before Indian authorities and lower courts. The drug has earned billions for Novartis since it was approved in 2001.

Almost 40 countries, including China and Russia, recognize the company's Swiss patents, but India does not. In defending its position, the Indian Patent Office argues that the drug is not a true novelty, but rather a variation of an existing drug. Non-governmental organizations, such as Medecins Sans Frontieres (MSF, also known as Doctors Without Borders), accuse Novartis of trying to extend its monopoly on Glivec for another 20 years by making minor changes to the drug. The 2005 amendment to the Indian Patents Act outlaws the practice known in professional circles as "evergreening."

For the Supreme Court in India's capital, the case is about more than just one drug. And for other multinational pharmaceutical companies, the issue revolves around what they can have patented in India.

On the one hand, they are pursuing the goal of capturing the enormous market on the subcontinent, which is growing as the country of 1.2 billion slowly becomes more affluent. On the other hand, India's own pharmaceutical industry is also taking advantage of its Western competitors' patent disputes to go on the offensive with cheaper copycat drugs, or generics.

MSF is already warning that India's role as what it calls the "pharmacy for the poor" will be in jeopardy if Novartis wins its case before the Supreme Court. Indian companies are known for the production of affordable generic drugs that even those in lower socioeconomic groups can afford. In Africa, for example, Indian generics play in important role in fighting the AIDS epidemic. More than 80 percent of all the AIDS patients treated by humanitarian organizations like MSF get their drugs from factories in India.

When we unpack this, we discover numerous anomalous statements. For instance, we're not at all sure what AIDS is let alone whether there are drugs that actually successfully "treat" it. AIDS may be a complex of conditions that have been gathered under one nomenclature. In fact, that does seem to be the case, given what is evident in Africa.

Also, we note that the fight to undermine drug patents is being led by the state itself, though obviously the state is being used by certain private Indian interests to press a case that is favorable to India rather than to Western pharmaceutical giants.

The pharmaceutical industry is generally questionable, in our view. People are not apt to investigate the past with any proficiency but most pharmaceuticals come from nature, from plants and trees. The American Indians used over 100 different "pharmaceutical" remedies and few reportedly died from infections.

In the West until fairly recently, the suggested response to most illnesses was often the ingestion of arsenic and the application of bleeding. Within this context, pharmaceutical drugs can be seen as a step forward. But not necessarily a large one, in some ways.

Because pharmaceutical drugs are not "natural," but developed in laboratories, they only mimic natural cures and inevitably come with "side effects" – which are not actually side effects but yet more manifestations of the drug itself.

The Western pharmaceutical industry is what we call a manifestation of directed history. Everything from the laws and regulatory authorities to the creation of the "drugs" themselves has been developed to generate a medical industry that otherwise would not exist.

Within this context, the attack on copyright and patents is undermining not just the drug industry but is having even larger ramifications.

After Thoughts

The argument over patents taking place in India is but one more manifestation of what we call the Internet Reformation. We fully expect at some point that it will spill out over state mandated boundaries and become a larger cultural conflict, as is already taking place in the West.

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