The geopolitics of software patenting

Once upon a time, the Indian hockey team won six consecutive Olympic gold medals and 24 successive matches from 1928 to 1956. The last Olympic gold that India clinched was in the 1980 Moscow Olympics. Since then, it has been a 44 year long drought when it comes to gold medals. 

There were many causal factors ranging from insufficient investments in the sport, outdated coaching methods, and greater competition from around the world. However, one factor that contributed to the steep decline was the introduction of a new playing surface called AstroTurf in the mid 70s. During British rule, the game was introduced to Indians and became popular in India because the playing equipment was relatively affordable, and all it needed was an open grass field. When the International Hockey Federation (FIH) altered the rules to make synthetic AstroTurf the mandatory playing surface for international hockey tournaments, Indians were at a massive disadvantage. 

In today’s currency, it costs around Rs 5 crores or more to build one AstroTurf playing field. Former Indian Hockey captain, Zafar Iqbal said that AstroTurf brought about a drastic change in the way the game was played and India was left behind as we could not install the turfs due to lack of funds. Grass, on which hockey had been played internationally for nearly a century, allowed skilled Indian and Pakistani players to trap the ball, dribble and pass. On the other hand, AstroTurf suited the physicality of European and Australian hockey players based on raw power rather than technical skill. Affluent Western countries like Holland, Germany and Australia have hundreds of AstroTurf grounds. It is therefore no surprise that, since 1980, Europe and Australia have dominated world hockey.

If Indian sports administrators had resisted the change, Hockey might have been India’s most popular sport today, rivaling even cricket. However, that was not to be as the administrators allowed the change in playing surface from grass to synthetic AstroTurf. Sadly, they were also slow to adapt to it once the rules had been changed. Indian players who grew up playing on grass found it difficult to play international tournaments on AstroTurf, a surface they had little exposure to. India has fared much better in cricket, where it is now a dominant force. Spin friendly pitches have allowed local players to blossom, even as we have started producing world class fast bowlers on a consistent basis.

Our choices must be our choices

There are many striking parallels between Indian hockey’s fateful AstroTurf moment and the Indian software industry’s software patents moment. However, there is one critical difference. Just as AstroTurf tilted the playing field in favor of the wealthier developed countries, software patents will tilt the playing field in favor of the developed economies who have a huge head start in this area. Whether it is AI or e-commerce, or online shopping and payments, the larger MNCs have acquired huge arsenals of patents. Under the Patent Cooperation Treaty (PCT), which India is a signatory to, these MNCs can acquire a priority date and apply for the same patent in India. The net result is that Indian companies will have to pay royalties to these MNCs or pay around Rs 3 crores to defend themselves in court. Overall, patenting is a part of a broader Intellectual Property(IP) protection strategy that includes copyrights, trademarks, trade secrets and business agreements. At a national level, even if Indian companies aggressively patent their ideas, it will take many decades for them to catch up with other countries where software patenting has been practiced as an integral part of business processes for a long time. 

Since patents are jurisdictional in nature, India has the ability to prevent itself from being AstroTurfed out of the IT industry.

Indian companies are aspiring to climb the value chain from being contractors who provide manpower and software development services for hire, to companies that create and sell their own products and brands globally. Keeping India free of software patents will allow Indian companies to innovate freely without worrying about expensive litigation, or paying royalties to MNCs. At the same time, the jurisdictional nature of patents enables them to file for patents in countries that allow it. 

The irony is that, unlike the Indian Hockey Team, India’s software industry is currently playing on turf that is favorable to it. Fifteen years ago, proprietary software was the norm, and companies had to pay huge license fees to acquire these proprietary software programs. The growth of the Free and Open Source Software (FOSS) has changed all that. A study by Harvard University and University of Toronto found that the value created by FOSS is $8.8 trillion. FOSS is based on collaboration, community and the shared ownership of knowledge. The Linux Foundation, a leading FOSS organization that hosts 300+ FOSS projects, estimates that these projects have created 1.15 billion lines of code worth $54 billion. Similarly, the Apache Software Foundation estimates that the 350+ projects it hosts have created FOSS worth $22 billion. These projects cover the most fundamental technologies from cloud computing, distributed computing, big data and analytics, blockchain technologies and many others. 

To move away from the playing field of FOSS to the playing field of software patents would be a self-goal of momentous proportions. Article 10 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to which India is a signatory of, says that, “Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).” Since TRIPS does not compel signatories to patent software, we would be voluntarily sacrificing an international treaty exception that we enjoy. As we have pointed out in previous articles, India will gain very little from this move, while it allows others to establish a chokehold over us. This would be like laying out the red carpet for the colonizers of the East India Company all over again. One hopes that wiser counsel prevails at the highest levels of decision making in India. 

In the recent past, India has been very assertive in protecting its own interests. For example, India refused to buckle under Western pressure and purchased Russian oil in a bid to keep oil prices (and inflation) low in India. As the Honorable Foreign Minister, Shri S Jaishankar said, “Diplomacy, international relations, good ties, friendships are not about giving other people a say in our choice. Our choices must be our choices.” The software patents issue has seen an indecisive, wishy-washy approach by the Indian government since the 2005 amendment was passed, with the Computer Related Inventions Guidelines being changed multiple times. One hopes to see the same clarity of thought and resoluteness in protecting Indian IT industry and startups from the scourge of software patents. 

References:

1. See the Linux Foundation homepage at https://www.linuxfoundation.org/. Accessed on 5th May, 2022.
2. See the Apache Foundation homepage at https://apache.org/. Accessed on 5th May, 2022.