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Public Domain in India

An interview with Lawrence Liang. He is a researcher at the Alternative Law Forum, Bangalore, one of World-Information.Org's partners for the 2005 India program.

Q: You are a member of the Alternative Law Forum at Bangalore. What does the ALF do?

Lawrence Liang: The Alternative Law Forum provides legal support for people marginalized on the basis of class, race, caste, gender, disability or sexuality. We provide services for people who are often have no access to them. Our main work is to conduct research on issues of globalization, urban studies, gender, as well as intellectual property and public domain.

Q: Indian researchers and activists have been at the forefront in questions of intellectual property. What is your particular approach?

Lawrence Liang: If you take the critical scholarship on intellectual property in India, there is an older generation that emerged in the context of biodiversity and traditional knowledge, which has a nationalist twist to it. It emerged from an older debate around western modernity versus tradition, western epistemology versus the indigenous context, etc. I would characterize that as the first generation.

Q: You refer to people like Vandana Shiva and their critique of biopiracy?

Lawrence Liang: Yes, Vandanda Shiva, Suman Sahai, Darshan Shankar, and all the work that has been on biodiversity, etc. What is problematic about these debates is that it remains dependent on the discourse of development, pitting developing versus developed countries. In addition, it responds to a crisis of property, and seeks a strengthening of property rights within a nationalist model.

Q: What are the particular features of the “second generation” of research? How do you avoid being developmental and nationalist?

Lawrence Liang: One thing that the first generation of research does not do is address the larger problem of the ecology of knowledge, which is a much larger debate about how knowledge is produced, distributed, shared, etc. We address this question following three different avenues. The first refers to a response to the public domain problem, especially as configured through the liberal US constitutional discourse. The second is the emergence of the entire free software and open source movement, and the challenges that it throws up in terms of models of production of knowledge. The third avenue concerns the globalization of the media industry, and the emergence of a highly vibrant grey economy. We feel that the earlier model of IP protection does not capture these three parts. It does not address the public domain question, the collaborative knowledge production question, and the question of the grey economy.

Q: As Lawyers, do you also litigate for clients in these fields?

Lawrence Liang: We do that, but not in the realm of IP. There, we do mainly research and publish pretty extensively. And we also teach in various places, including distance learning institutions, the National Law School, other law colleges, media colleges, and we are invited as guest lecturers.

Q: As a privately organized NGO, what kind of responses do you get from governmental authorities that deal with IP issues?

Lawrence Liang: At the ALF, we have a division of labour where I would work on the grey economy, trying to promote an understanding of its legality in a nuanced manner. We also do some policy work, for example with regard to an amendment to the copyright act that basically tries to follow the DMCA (US Digital Millennium Copyright Act) model. We were trying to oppose that, showing how such a law would be harmful for creative innovation. Right now we are also supporting a campaign in pharmaceutical policies. But our focus is not so much on policy advocacy, because you cannot really defend the grey economy and be on policy bodies. With regard to government, we try to push for the open source model, arguing that public money should go into public intellectual property.

Q: In a number of countries, such as Vietnam, Mexico, Peru and Brazil, the national governments have adopted policies in favour of open source models. What is the position of the Indian national government in this regard?

Lawrence Liang: There is not an official position. The President of India made a statement saying that we should move to free software and promote the use of open source software. But unlike the situation in Brazil, where the government is actually taking an initiative, here the government is not taking an initiative.

Q: On what grounds?

Lawrence Liang: The institutional capture in the Indian context is very high. All the members on the policy bodies, for example, are primarily law firms who represent companies like Microsoft and the other mega corporations. They are the ones who are on the policy bodies.

Q: India has emerged as a major site for outsourcing. Does that have anything to do with the government's position?

Lawrence Liang: I would not look at it primarily from a governmental angle. I think if you made a national interest case out of it they would buy the argument. But if you look at the large representation of private players within policy making bodies, you will find all the major Indian software producers, and they all work very closely with Microsoft. There the pressures are greater, and there will be no advocacy for open source, because of the ties with Microsoft. On the other hand, Microsoft has now taken a back seat with regard to IP enforcement. According to one Indian Microsoft strategist, there has been a conscious decision not to push for enforcement against piracy in India, because in the past such attempts had an almost immediate effect of people moving to open source software.

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