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Intellectual Property Rights in South Asia



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8.5 Intellectual Property Rights in South Asia


Chair: Dwijen Rangnekar

Panelists: Rahul Cherian, Inclusive Planet, Chennai Joyojeet Pal, University of Colorado at Boulder and Polytechnic Institute of New York University

Title: Copyright and Accessibility in India

Abstract: With the signing of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in several countries around the world, there is an increased global awareness of rights-based discourses around disability. This has important legal implications for signatory nations. There is a constitutional side to the CRPD, which refers to the amendment of national laws to remove discriminatory law or include protections where necessary. On the economic side, there are commitments (or stated intent) in terms of state spending on disability issues and provisions for accessibility as well as labor market legislation such as affirmative action or requirements that private sector companies ensure accessibility. Having ratified the convention, India is among the nations with a responsibility not only to ensure and enforce rights for persons with disabilities in the spirit of the convention, but also to create social and economic conditions that allow for equitable social inclusion. Issues of copyright are therefore of much significance. With digital formats, there is potential to exponentially increase reading and listening material for people with print impairments, save for legal hurdles. In this article we consider the relevance of the constitution and other local laws and policies of the ‘Right to Read’ in a copyright environment in India where hardly any materials are available in accessible formats for people with print impairments. We examine legal discussions over the proposed copyright amendments, which take a ‘corporatizing approach’ of material regulation through established disability organizations. This excludes individual disabled non-print material users, community groups, and educational organizations from creating and disseminating material in accessible formats. The case of copyright law is key in this scenario, since the matter is at an unusual intersection of what would be seen as regulatory eminent domain from one perspective, but as an attack on the prevalent intellectual property regime from another. In the light of these, we discuss the discourse and the reality of accessible materials for persons with print impairments in India.

Panelist: Ruchira Goswami, National University of Juridical Sciences, Calcutta

Title: Naming the Unnamed: Folk Music and Intellectual Property Rights in India

Abstract: Over the last two decades the cultural integrity and cultural autonomy of indigenous peoples has come to be recognised internationally as a fundamental human right. Traditional communities around the world are regularly forced to confront issues of cultural appropriation and cultural theft. The protection against such exploitation of traditional writings, languages, customs, songs, paintings, handicrafts, rituals and ceremonies, traditional medical knowledge, legends and myths, referred to collectively as traditional cultural expressions (TCE) or folklore has emerged as an aspect of the “cultural and intellectual property rights” of indigenous people and, is, today a key issue in the international arena. Folk music exploitation, are subject to massive misappropriation. The core of the problem in this case is the absence of fixation, leading to mutilation and distortion of folk music apart from non-recognition of folk artistes. Developments in technology and the ease with which mass reproductions, broadcast and distribution can be carried out in the digital era have multiplied manifold the possibilities of exploitation of folklore, which is blatantly expropriated and commercialised to suit the needs of the market. Moreover, the economic interests of the community in question suffer because no share of the returns from commercial exploitation of the cultural property is conceded to the traditional communities which develop and maintain it. The impact of such action is further heightened in the case of developing countries, which are very rich in folklore, but have weak systems of cultural property protection. The paper argues that the existing regime of intellectual property is grossly inadequate for protecting traditional cultural expressions and must be suitably expanded to incorporate a human rights understanding in order to fully accommodate the interests of traditional or indigenous communities. However, it is also argued that intellectual property laws developed in the context of advanced capitalism and designed to protect individual knowledge operates within a world view that is significantly different from that of traditional communities. The ‘universality’, ‘neutrality’ and ‘generality’ of modern law fails to grasp the hierarchies and fault lines within communities and tends to reduce community to a traditional monolith. Hence this legal regime might partially succeed in protecting moral and material rights of communities over their cultural expressions but would be unable to comprehend the emotive aspects of cultural expressions (folk music in this case) that are created in particular social and historical contexts within communities. The ‘historic disavowal of affect’ in legal scholarship and practice is evident in this disjunct between the life worlds of modern legal systems and TCEs generated essentially in a communitarian culture. 

Panelists: Joy Dasgupta, Greater Himalayan Bio-cultural Society Anungla Aier, Nagaland University Tika Laxmi Gurung, International Relief and Development Raquibul Amin, International Union for the Conservation of Nature and Natural Resources

Title: Who Owns the Chilli? Discourses of Traditional Biodiversity Based Knowledge Systems across National “Borders” in the Eastern Himalayas

Abstract: The overarching discourse at the international level has been to recognise the importance of traditional knowledge systems and the contributions made by traditional/Indigenous people. The International discourse also has been to transform the notion of Biodiversity being a common heritage of mankind to one where biodiversity came under the jurisdiction of the nation state. This process was completed explicitly at the International level with the passage of the Convention on Biological Diversity. The apparent contradiction lies in the fact that on one hand the nation-state now has ownership over biodiversity but on the other hand the knowledge is held by local communities. These “communities” cross national boundaries, this is more so the case in the mountainous regions of the tropics and sub-tropics. The Eastern Himalayan region is no exception. It is a region where political boundaries and ethnic boundaries do not match. There are many groups who are present on both sides of the political divide. Examples include the Rai’s, and Limbus divided between India and Nepal, the different Naga communities between India and Myanmar, the chin speaking groups between India, Bangladesh and Myanmar. This paper would like to discuss the implications of this with reference to the traditional agro-biodiversity based knowledge systems which permeates the region. The paper argues that ownership of these knowledge systems transcends political boundaries in many ways acting not only as cultural but also territorial markers. The paper argues that the emerging biodiversity related regulatory regimes in the region does not take into account the boderlessness of these knowledge systems and tend to assert unilateral notions of ownership. This has clear ramifications for any future Access and Benefit sharing regime as it will be impossible to prove ownership or validity of any particular knowledge system within the boundaries of any particular nation-state.

Panelist: Sophy Joseph, Researcher-cum-Teaching Assistant, School of Law, IGNOU

Title:  Farmers’ Rights under Plant Variety Protection (PVP) Legislation: Issues and Concerns

Abstract: The idea of farmers’ rights has evolved in the context of fast development of the legal protection of commercial breeders’ rights over seeds developed with the help of modern science and technology. While the rights and interests of commercial breeders are recognised and protected under the legal regime, similar efforts taken by farmers for centuries are left legally unrecognised and unprotected. Primarily, this asymmetry in recognising rights of farmers and farming community equally with commercial breeders form the major rationale behind the concept of farmers’ rights.1 

Farmers’ role as a conservator has contributed to enrich the biodiversity. Farmers develop local varieties over long period of time as a result of their selection and cultivation. They select their plant types with keen observation of traits of crops and identify favourable environmental conditions for minimizing the risk. Their experiments have led to development of several traditional varieties, which are used by plant breeders to develop improved varieties.  The commercial breeders acquire private property rights over their seeds and monopolize the seeds. Farmers have to buy seeds from them at exorbitant prices.  

The concept of farmers’ rights has become an explicit part of Indian legal system through the Protection of Plant Varieties and Farmers’ Rights Act, 2001. The ownership approach and conservatorship approach included in the provision is discussed here. Farmers’ rights provision under the Act has invited several critiques both from a conceptual and implementation point of view. In this back ground, this paper seeks to explain the nature and scope of farmers’ rights in India and further captures key critique relevant for meaningful development of the concept.  This paper also attempts to critically evaluate some of the recent developments in India relevant to farmers’ rights.

8.6 Title: Court-ing Law: Ethnographies of Court Practice

Chair: Anuj Bhuwania

Panelist: Vasudha Nagaraj, Lawyer, Anveshi Research Centre for Women’s Studies  

Title: Interrogating Practices of Criminal Law: Notes from a Murder Trial 

Abstract: The canvas of the Indian criminal law is ever widening and has many dimensions to it. A detailed study of such a powerful and omnipotent system requires that one be attentive to the location from which one critiques it. Despite the similarity in evidence and procedure that determine its operations, there are variations in its discourse when the subject seeks its protection as a complainant or runs and absconds from its jurisdiction as an accused. This paper explores the domain of the latter category, that of being the accused/defendant in a criminal trial. Contrary to the constitutional fiat of equality before the law, criminal prosecutions are known to vary if one is an accused in the jurisdiction of ordinary or the extraordinary law, rich or poor, man or woman, wife or a concubine, Hindu or Muslim. These in turn are known to influence the ways in which the prosecutor, defense lawyer and the judge exercise their competence and discretions. There is a thriving commonsense that such “discretion” has the capacity to operate as the dividing line between guilt and innocence, life and death, incarceration and freedom. This paper seeks to substantiate in close detail about how this discretionary capacity actually determines judicial outcomes.  

How is culpability fixed in a criminal case? To fix culpability, the law has to reconstruct the story of the crime in all its details according to rules of procedure and evidence laid down in its codes. No enquiry is as bound to the rules of procedure as much as the legal enquiry is.  Adherence to the procedure is believed to be the foundation of the criminal justice system that gives it credibility as well as legitimacy. The central objective of this essay is to problematise the reconstruction undertaken by the law or more clearly the work undertaken by the policeman, public prosecutor and the judge. What are the key concepts in this reconstruction of crime? In order to answer this question I begin by analysing the legal category of murder in the Indian Penal Code, in its voluntary and mitigated forms. What are the specific modes in which the definitions and categories of the statute get translated into everyday criminal practice? I investigate these questions by analysing a murder trial in a district court of Andhra Pradesh and see how the category of judicial discretion inflects the formal procedures of investigation and trial.



Panelist: Anu Sharma, Doctoral Candidate, CSLG

Title: Niptara Courts: Critique of Official Discourse on Access to Justice

Abstract: This paper will detail the politics of judicial reform and access to justice by providing an ethnographic account of the Special Courts held in Tihar. Special courts are held for those under trials who 'voluntarily' wish to confess their crimes before a metropolitan magistrate. These courts, however, are only for the first time offenders. They were started at the initiative of former Chief Justice of India, A. S. Anand. He conceptualized formation of such courts for the first time offenders who are languishing in jails for petty offences and who are ready to confess their crimes. I trace the figure of the "confessing undertrial" to problematize the construct of 'special courts' as a reform measure. I characterize these courts as "nipatar" courts since these courts produce specific numerical narratives of the incarcerated, which are not overtly concerned with issues of substantive justice. We are told again and again the higher number of disposal of cases through such courts; the greater is the success of judicial reform. I emphasise that such reform which works on the silence of the undertrials neither provides "access" nor "justice" to the poor rather it helps to decongest the jails. These courts, at best, work for the 'niptara' of petty cases.

Panelist: Gaia von Hatzfeldt, PhD in Social Anthropology, University of Edinburgh

Title: Vernacular Justice: Adjudicating Corruption in Rural Rajasthan 

Abstract: This paper will address the ways in which constitutional laws are drawn upon by the rural poor as a means of articulating demands for social justice. Through an ethnographic case study of anti-corruption public hearings in Rajasthan – known in the vernacular as jan sunwais – it will examine the ways in which paradigms of legality are reframed 'from below' in the public sphere. The jan sunwais designedly engage with the formal rights discourse, particularly the Right to Information (RTI), and draw on official state legal symbols, yet invest these with local norms and concerns, thereby transforming ‘the law’ to meet their own ends. Jan sunwais are collective forums, modelled on the rituals and language of official courts, where witnesses and testimonies are used to explore the inconsistencies between the claims of the state and the experiences of the people. This indicates an eclectic mix of state laws and local norms of justice in demanding an impartial form of governance. Thus, the cultural process through which the law comes to be articulated in the jan sunwais generates an alternative space for ‘sighting law’ and poses a counter narrative to monolithic forms of legal rationality 

The act of calling corrupt local government officials to account in a jan sunwai setting by means of the RTI not only presents a mechanism of redress against acts of injustice and corruption, but, further, has reverberations on the ‘political consciousness’ of rural populations. The processes of audit and verification within a jan sunwai induces a space in which the state’s idea and performance of transparency and accountability is contested, questioned, appropriated or rejected in locally meaningful terms. Consequently, jan sunwais appear to be instances in which notions of participatory democracy are made locally tangible and culturally meaningful. Participation in a jan sunwai thus indicates a transformation of political imaginaries and subjectivities through the medium of the legal framework.



Panelist: Daniela Berti, Social Anthropologist,CNRS-Center for Himalayan Studies , Paris

Title: Suicide Notes as Legal Evidence: An Ethnography of Criminal Proceedings in Domestic Violence Cases 

Abstract: Compared to most of the proceedings usually followed in criminal law cases, where evidence is mostly based on the oral corroboration of witness statements and on police records, in cases tried under section 498a ("Husband or relative of husband of a woman subjecting her to cruelty") judges are relatively more apt to consider the psychology, feelings, or state of mind of the victim as pertinent elements to be explicitly used in order to argument their final decision. This is particularly true in suicide cases where the deceased leaves some notes or letters (as distinct from dying declarations, in dowry murder cases) in which she expresses, sometimes in a quite conventional way, her troubles and the reasons which may have pushed her to put an end to her life.  In some cases, these notes may even be the only piece of evidence which remains in case the prosecutor witnesses resile from what they are supposed to have stated to the police and are declared hostile at the time of the trial. In this paper I will go into some of these cases in order to show the interpretation given to these suicide notes by the defense during the trial and in the final order written by the judge. I will also discuss the different ways in which these notes are considered by the Session judge, by High court judges or in Supreme Court judgments. The analysis will be based on ethnographic material from two Session Courts of Himachal Pradesh, on first hand documents collected in the field and on Supreme Court decisions published on the internet.  

8.7 Title: After the Naz Judgment: Examining Legal Controversies and Debates in the Wake of Section 377

Panel Coordinator: Ashwini Sukthankar

Chair: Alok Gupta

Panel Abstract: This panel draws on both meanings of the word “wake,” as elaborated by Barbara Johnson in The Wake of Deconstruction: not only the churning and turmoil that follow the passing of something, but the sense of mourning that “wake” evokes in the Christian tradition. It might seem odd to mourn the historic judgment that led to the decriminalization of “sodomy” between consenting adults in India, but here, it is the coalitions and moral certainties of the campaign against Section 377 that we miss. Through this panel, we identify and discuss some of the issues that present themselves, in the “post-377” imagination, as questions on which positions must now be taken: same-sex marriage, gender-neutrality in rape laws, and the age of consent. It is already apparent that there are sharp divisions on each of these, among the same groups who found common ground in opposition to Section 377. We also point to a potential area of agreement – the need for more expansive thinking on anti-discrimination protections – which may anchor our joint thinking in the fraught times ahead.  

Panelist: Tarunabh Khaitan, Tutor in Law, Oxford University, UK

Title: The Anti-Discrimination Principle

Abstract: One of the most remarkable aspects of the judgment of the Delhi High Court in the Naz Foundation case was its use of the anti-discrimination principle to find that the criminalisation of adult consensual sexual acts between persons of the same sex is unconstitutional. The Court recognised that the constitutional protection against discrimination is available to all groups disadvantaged on the basis of an autonomy denying characteristic (such of race, sex, caste, sexual orientation, disability etc ). This protection is available not only against discrimination by the state but also against discrimination by private individuals. These and other aspects of the judgment have important lessons for how we should conceptualise progressive politics-the connection between law and politics is not, after all, a one-way street. The judgment emphasises that discrimination is not just a queer concern. By identifying the wrong of discrimination in the denial of autonomy, the judgment transcends the pitfalls of identity politics. It presents a normotive vocabulary for articulating queer concerns without the need to pigeonhole lives into essentialised categories. It does not, for example, force a disabled dalit lesbian woman to fit her experiences into unidimensional boxes. Instead it paves the way for the recognition of intersectional discrimination.It also notices the connection between different facets of disadvantage. As such, it calls for a coalition between all those who find their ability to lead autonomous lives threatened, whether by the actions of the state or societal forces.

Panelist: Arvind Narrain, Alternative Law Forum, Bangalore

Title: Gender Neutral Rape Laws: Are they the Way Forward? 

Abstract: Post the reading down of Section 377 by the Delhi High Court, the struggle has moved to how can one get Section 377 off the statute books? One of the ways in which this could be done is through the reform of the rape law. This paper will explore the emerging differences between a feminist position occupied by some groups and a queer perspective on the need for a gender neutral rape law. In the context of rape law reform in India the latest fault line between a feminist and a queer perspective has been the question of whether the law of sexual assault should be gender neutral. Women’s groups have contended that since sexual assault is a crime specific to women, sexual assault should be specific to women, while queer groups have argued that the offence of sexual assault in its very essence is meant to protect not just women but people of different gender identities and sexual orientations. This paper will map out the different perspectives before arguing that we need to move towards a gender neutral definition of rape. 

Panelist: Ashwini Sukthankar, LLM student, Columbia University, New York

Title: Do Children Have a Right to Consent?

Abstract: Some of the most difficult engagements in shaping a challenge to Section 377 were those between queer groups and child rights activists, since the law served as the only provision criminalizing the sexual abuse of children. With the “reading down” of Section 377, the law now applies only to situations where there is no consent, or consent is vitiated by the age of one or both of the sexual partners. There have been some calls for a thoughtful reexamination of the age of consent in India, based on an understanding of the evolving capacities and desires of children between the age of puberty and 18, and the opposition to criminalizing relationships based on meaningful consent. This paper will assess positions on the age of consent, locating these within broader approaches to children's capacity, including child labour and juvenile justice. In particular, it will look ahead and chart activists' thinking on debates looming on the horizon, including:

  • Whether the age of consent should be gender-neutral, or lower/higher for boys than for girls

  • Whether homosexual sex and heterosexual sex ought to have the same age of consent

  • What are the intersections with other areas of law, including provisions governing marriage, or sex work?

Panelist: Siddharth Narrain, Alternative Law Forum, Bangalore

Title: New Asian Values:Emerging Jurisprudence around Sexual Orientation and Gender Identity Rights in Asia

Abstract: The last decade has seen enormous changes around sexual orientation and gender identity rights claims and legal recognition in countries across Asia.  A region that lagged behind when it came to Lesbian Gay Bisexual and Transgender (LGBT) rights has now seen a range of incredibly progressive legal changes, mostly through court decisions, in this area. While there are still a large number of countries in Asia, which lag behind when it comes to LGBT rights, the changes that have taken place have had an impact across the region. We argue in this paper, that what we are witnessing today is an emerging ‘Asian’ jurisprudence in Asia, as a counterpoint to conservative notions of ‘Asian values’. This emerging jurisprudence has given an Asian twist to notions of gender identity and sexual orientation, producing a distinctive legal discourse.  This paper will examine recent legal developments in Nepal, India, The Philippines, Indonesia, Thailand, South Korea, Mongolia, Pakistan, Fiji and Hong Kong including judicial and administrative decisions and measures taken by National Human Rights Institutions.



1 See, for example, my Introduction to Chhatrapati Singh, Water Rights and Principles of Water Resource Management (New Delhi, The Indian Law Institute /Mumbai, NM Tripathi Ltd. 1991.) Interested readers may also find an evidence of commonality of our view in The UGC Curricular Development Centre Report on Legal Education and Research (New Delhi, 1993.) Cutting across the staid sterile debate about liberal and professional legal education (which even more acutely inflects the globalization of Indian legal education and research [LER,] CS proposed that we may never lose sight of the idea of a just LER that also seeks to create ‘soldiers for justice.’ I may here only say that the labours of CS -11 in this sphere need wider attention.


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