Prof. (Dr.) Shamnad Basheer, who recently passed away in an unfortunate accident, was one of the most influential IP personalities of our generation. His contributions to intellectual property rights resonated beyond his home country – India. He was also the founder of multiple humanitarian projects like IDIA (Increasing Diversity by Increasing Access) and P-PIL.
After completing his law degree from the National Law School of India University, Prof. Basheer went on to complete his master’s and a doctorate in law from the University of Oxford. Thereafter, he taught at many internationally renowned universities, including George Washington University and the University of Pennsylvania in the US. He also holds the distinction of becoming one of the youngest professors in India, when he went on to become the Chair Professor of Intellectual Property Rights at the WB National University of Juridical Sciences in Kolkata.
Despite his stellar academic achievements, Prof. Basheer’s interests went much beyond academia. In fact, towards the latter part of his life, he devoted a substantial amount of his time towards fostering a transparent environment within India's IP rights ecosystem, as well as creating a democratized, dynamic, and equal society for all. Through the IDIA project, which he established in 2010, he embarked on a mission to ensure that the best law schools across India are accessible to students from the most marginalized sections of the society. The end-goal of the project is to help create an equal society, where diversity of opinions and identities is not just respected but encouraged.
Keeping in line with the values he stood for, he founded the blog "SpicyIP" in 2005 to democratize the discussions surrounding intellectual property rights in India. This blog has been one of the most popular IP rights websites not only in India but also worldwide.
Last December, we had the honor of hosting Prof. Basheer, when he visited Iran as a visiting instructor at a workshop hosted by the Iranian Ministry of Justice, and partially sponsored by Kanoon IP. In a friendly and wide-ranging interview, we talked to him about his work and what motivates him to continue fighting the good fight.
Professor Basheer, first of all, let's starts with intellectual property rights that form the major part of your work. What motivated you to study law in general and intellectual property law in specific?
In fact, my interest in the field of law goes back to my interest in the subject of justice that I had been particularly keen on since my childhood. If you have read Charles Dickens' “Great Expectations”, you may have noticed that it talks about how children are quick to spot injustice. This is because of the innocence of children, who carry no prejudices or bias. As a child, I was also very sensitive to injustice. If something seemed unfair to me, I would react quickly and talk about it. So, perhaps, I carried this trait with me even when I grew up!
However, my family was initially opposed to the idea of me studying law. Like all Indian parents at that time, my parents wished their child to become either an engineer or a doctor. There was still not enough knowledge and information on the importance of the field of law and its impact on society. Therefore, I applied for engineering exams after finishing school. However, my interest in law led me to join law school, albeit without my parents' permission. I liked engineering, but it wasn't something I was always looking for.
My mind has always been and still is, on the subject of justice. One of the films which stuck with me as a kid was "To Kill a Mockingbird". The movie is about a child whose father (played by Gregory Peck) advocates for a black man who had been falsely accused of raping a white woman in the highly segregated society in America at the time. The lawyer had to confront the community and his neighbors in order to mount a defense for the accused. Thus, some of the films and books that I was exposed to as a child as well as my childhood in a country like India, had shaped my interest in law.
Shortly after starting my education in law school, I informed my parents about it. They did not so agree with the major I had selected for educating I used this as an opportunity to work while studying. I took up a job as an apprentice at a law firm, where I was tasked with drafting petitions. This helped me develop my writing skills and more importantly, observe closely injustice in society.
Regarding your second question of how I became interested in intellectual property and patent law, I have always had an interest in law as well as engineering and natural sciences. The fact that my high school major was closely related to science and mathematics could also have played a role. Based on these interests, I devoted my post-graduation thesis to gene patents. The Institute of Science was located near the Faculty of Law, and my friends at the institute helped me a lot in learning lab terms and techniques. The subject of my thesis and my interest in the natural sciences and engineering made intellectual property rights and patent rights more attractive to me, and also made me more eager in this field.
You talked about an interest in science and its relevance to the subject of IP. This is something that may be challenging for some of our audience and people who deal with patents. What do you think of a lack of scientific or technical background for the patent lawyers?
Legal work related to patents can be divided into two categories; one category includes drafting technical-legal applications, searching prior art, etc. and the other one involves prosecution and litigation. In many countries, such as India, involving lawyers without a scientific and technical background in patent drafting and search and some other prosecution is not allowed. However, lawyers, having a law background can do their job well in litigations in courts as well as in policymaking. Even in a country such as the US, only lawyers could handle heavy patent litigations.
In general, but not as an absolute rule, lawyers and jurists have shown greater potential to work in patent policymaking and litigation in courts. Of course, these individuals, if they have had any interest or studies in the sciences, may have given them an edge. Nevertheless, in general, I don’t think there is any specific rule which dictates one’s success in the practice of patent law, because the market and customer opinion will prevail finally.
Now let's continue the interview with the IDIA project. Please explain more about this project, since I am very interested to know about your incentive for undertaking this project.
IDIA stands for "Increasing Diversity by Increasing Access to Legal Education". The main purpose of this project is to have a dynamic and non-discriminatory society while maintaining diversity and respect for social differences among individuals. To better explain this concept, let's look at the philosophy behind this project.
In India, the cost of good universities is normally above the median income level of the society, and therefore, only the children of wealthy and privileged families can enter these universities. Moreover, these universities have a very difficult entrance exam, which is in English. Therefore, in addition to paying high tuition fees for the good universities, the students cannot pass the entrance exams if they have not had sufficient English language training in school.
It is not possible for all Indian students to meet all these preconditions. In the public schools of India in various provinces (the schools having a reasonable cost for the majority of the population), courses are generally taught in the language of that province, not in English. In India, every province has its own language. In general, we have 23 official languages in India in different provinces. For example, there are seven official languages even within the southern provinces of India. The school students in slum and rural areas, despite having high intelligence, are unable to successfully participate in the entrance exams to good universities, due to lack of English education, apart from the fact that they are mostly unable to pay tuition fees of these universities. Therefore, most law students are generally from wealthy families who are well educated in English.
But what made me start this project? From the beginning of 2006 until the end of 2007, I taught at George Washington University. Late in 2007, a dean of a well-known Indian law university called me and said we need you in India and asked me to come back. I had started adapting to life in the US and felt no reason to return. He made his best efforts, and after several long telephonic conversations, I decided to return to my country for doing some work.
I went to teach at that university, which he was a dean of, and which was also the third-ranked law university in India. The first course I taught there was on the subject of the legal protection of new plants. To understand the concepts better, it was necessary for students to have a very basic understanding of plants and agriculture. In the class, I asked the students, “Which one of you have seen a seed or know how to grow it?”, “Which one of you know which crop is grown in which season of the year?”, “Which one of you has seen the plow (a plowing device still used in some parts of India)?”.
None of the students in that class had any information about these basic topics. Many of them had never even seen a tractor. Well, when you grow up in a city and have a wealthy family, it is common that you have little knowledge of this kind of stuff. I went to the dean of the university and said that these students represent only one-thousandth (1/10000) of the Indian population. Where is the rest of India's population? Should only these students contribute to justice? How they can help develop a non-discriminatory society? Are they able to realize the rights of the general public?
I followed up on this matter with senior officials and the Ministry. They claimed that there was no ban on entering universities and everyone could apply and enter. However, no reply was given on the question that how can they even apply for a university in which applying itself cost them a hundred dollars (almost a monthly income of an underprivileged family). Thus, I decided to start the IDIA project by myself and with help from my friends.
The project began in the villages of the northeast of India. We went to the underprivileged schools in one of the provinces and asked the students which one of them was interested in being educated in law? The importance of law education in that area was still similar to what it was when I entered college. There was no interesting prospect for them. So, as the first step, we had to try creating an interest in them by explaining the importance of the legal field and the benefits that can be gained through studying in this field. A number of students in these villages then expressed their interest. The first phase began with teaching English to these students, and then additional training for analytical and writing skills was given. At the end of this phase, 5 students from that province were able to enter the top law universities. Then we continued this program with other states and now we have covered students from 20 provinces.
What is the model for selecting students? Are you still involved in student selection?
Except for the first state, in all other states, the job of student selection is taken by volunteer law students. And I'm also working on other activities of the project with them. These volunteers go to underprivileged areas and after briefing sessions, they select students on the basis of criteria such as interest, analytical ability on different subjects, ability to learn, and so on. After these students are selected, they are taught for 2 years.
Once these students enter law schools, we go to law firms and other institutions and ask them for sponsoring these students. Therefore, these students do not pay any tuition fees. The cost of studying law at a university is almost $5,000 a year, which, along with some living expenses, are paid by these donor institutions.
How are the law firms encouraged to sponsor these students? This seems to be one of the hardest parts. Isn't it?
This part of the project was not a difficult part for IDIA; because many of my friend’s work in the top and well-known law firms, and sponsoring these students by way of scholarships is not expensive for a large law firm.
Moreover, there are many people who are interested in the project and like working as a volunteer. In IDIA, there are less than ten full-time staff members, but there are 500 volunteer students in different provinces.
Almost 10 of the students who entered India's top law universities through the project have graduated and all are working in the best law firms. For example, one of the IDIA scholar’s mother works in a library and her monthly income is about $ 150, and this scholar earns about $ 5000 a month after graduating by working in one of the top Indian law firms.
How do you evaluate the relationship between this project and creation? Can such projects be set up to create a creative community?
We have to admit that, first and foremost, creativity is only thinking differently. When a society is capable of accepting differences, it automatically turns to creativity. When everyone goes to a particular type of school, they learn particular and similar lessons, eat similar food, and even do similar leisure activities; the differences seem strange and accepting them becomes difficult.
For instance, for students studying in big-city schools in India, it is a bit difficult to understand a student from a north-eastern Indian province, who speaks a different language and looks different than the rest of the Indian population. People in those areas live in the mountains and eating some kind of insects is common for them. However, this student is a rich source of information about plants, insects, and nature because of the lifestyle they have. We will lose this very rich information by ignoring or eliminating this student from our typical training cycle.
In fact, the purpose of the IDIA project is to provide the context for accepting these differences. An acceptance that will ultimately take advantage of all the available potential and create a creative community that is profitable for the country.
I completely agree with you. For continuing the interview, let's talk about your blog, "SpicyIP". What motivated you to create this blog? Why did you come up with the idea of making intellectual property law and its concepts accessible to the public through this blog?
To tell you the truth, my primary reason for starting this weblog was simply escaping from the boring days I had at that time. I was a guest researcher at the University of Illinois at Champaign County, USA. A good city, but very boring for me who used to live in crowded cities! Living without a car is almost impossible in most cities in the USA, and I had no car at the time. Writing this blog was purely for the purpose of entertainment in that city. After a while, I noticed that the blog had visitors and some comments, so I decided to take it more seriously.
As people's knowledge of intellectual property law in India was very low, this lack of knowledge led to significant violations. Lawyers and employees of the patent offices used this deficiency and imposed huge costs on t
them in their favor. Therefore, we decided to make available all information on various aspects of intellectual property rights online.
On the other hand, at that time (2005-2006) no information was available on patents filed and granted. We set up a campaign through the blog and wrote to the Prime Minister, the President, and all the relevant officials. We repeatedly pressured the Ministry to make the patent information available to everyone.
In those petitions, we pointed out the claims of the Indian authorities and government that India was a superpower in the IT field. Why in the digital age, a country such as India, with so many IT professionals had not been able to make it's patent information available online yet? The philosophy of patenting should be to make it public so that everyone can benefit from this information and innovate. In response, we heard that anyone who wishes to obtain patent information can easily visit the patent offices. But is this convincing? How many people are willing to go to the patent offices?
All these campaigns and petitions to put pressure have made the patent documents’ information public since 2007. Following the publication of the patent documents, we found that there was corruption in the Indian patent system: either between some of the lawyers or some of the patent office staffs there was the same corruption: bribery.
By observing files that had become publicly available and accessible, we discovered certain illegalities; for example, a patent that should not have been granted was granted due to the corruption of office. We started writing about these things on the blog. Because of these eye-openers, two employees of the patent offices were arrested and sent to prison in the early months following the publication of these articles on the blog.
Didn't you face resistance from the opposition groups?
In the beginning, we had a lot of opposition. The arresting of two people due to corruption, for example, was when I worked in Mumbai and used a motorcycle to go around the city. For a month after those two offenders were arrested, a car was always in pursuit of me, because it was hard for them to accept the fact. Numerous posts on the blog were dedicated to the importance of transparency in all patent procedures and their impact on the reduction of corruption.
Gradually, as more and more readers became aware of the fact that our blog was a major contributor, the pressure on registries to provide information increased. Currently, all information is accessible. It is easy to see what a lawyer has set up for an invention, as well as what patent officials have done for a grant or to refuse an invention.
Altogether, SpicyIP’s role in improving India's intellectual property is undeniable. Is it true?
Yes, and of course many people consider us as leftists because of our conflicts with the system. But we don't care. Our main goal has been to enhance transparency, which my colleagues and I have constantly strived to achieve. For us, it makes no difference whether we are considered as left-wing or right-wing or moderate. Transparency is a goal we have achieved to a great extent.
Let's go back to the blog "SpicyIP". You said you started writing in the days when writing a blog was your only fun. After that, how did you keep writing as your activities grew? In addition to you, this blog has other writers who are in line with your thoughts and goals. How were you able to attract them?
This goes back to my most important God-given talent. My most important talent is to discover the talents of others. In fact, I have the ability to discover the talents of others and put them on the path to developing their talents. This talent also helped me in the blog. Through my students, I managed to create a team that was interested in achieving that goal and they are much better than me nowadays. I give them the freedom to write and tell them to just write. This is your job. They have good analytical ability to write. They feel and sniff out corruption within the system very fast and write very good analytical articles
How do you provide funds for the website content?
Content is provided by the team I mentioned earlier, all for free. This has a mutual benefit. They write what they have in mind, and I help them write better on what they have in mind. I am very obsessed with writing and checking the posts, even up to twenty times so that there is nothing wrong with the concept being conveyed. This amount of obsession in finding flaws in their writing made them very frustrated at first. However, their mistakes were gradually corrected. I learned this obsession while working at one of the leading Indian law firms. My boss was very sensitive to using correct spelling and punctuation at that time. If I misplaced a semicolon, he would throw the text at me. Working there made me very good at writing.
I tell my teammates that I don't pay you to write, but when you write a blog you will get training that is not available anywhere else. Every blog post is published with great sensitivity. This is both for the benefit of the blog, which aims to create transparency in the society, and for the students who have formed the writing team. Writing on this blog teaches students how to convey critical thinking, in addition to enhancing their skills. It also has the advantage that after three months of writing, their names are also listed at the bottom of the posts and provide them with fame.
It is very important to learn how to write and convey concepts. I do not want to confuse readers with terms like Article 2 of the Law of x. Writings should in a way that excites the reader.
One issue that just came to my mind, and I can cite it as an example to help readers understand the issue, is the practice of referring to American judgments by Indian courts; why did India suddenly cite US court cases? India was a British colony and our laws were set out by the laws of English courts. Referring to court cases, in fact, expresses a kind of legal system, known as a judicial or record procedure or a "common law" which is prevalent in some English-speaking countries as well as countries that once used to be British colonies. Why did the movement shift to US court cases in the 1980s and 1990s?
We examined and found that the origin of this shift dates back to the time when one of the Indian lawyers cited the criticized cases in McCarthy's book. McCarthy is a well-known judge whose famous book deals with trademark infringement and unfair competition. The reason for citing this book, which contains famous US court cases, was that they are both famous and transparent. Americans, in general, are oriented at one side of the case, and the result is more specific; while the British are conservative in their cases, the outcome of their court cases is largely uncertain. As such, it has become increasingly common to refer to US court cases in India. We have explored this in the blog and analyzed and described the advantages and disadvantages of citing each of them (American or English cases). These are points that you may not learn in any classroom, and readers will love this new, useful and analytical information provided for free. This information will be useful for the future as people will notice the change in strategies.
But at the same time, we need to be careful during writing content and be careful not to be accused of anything. Edits and revisions take place several times to avoid citing incorrect information. However, there have been cases that we have been accused of, but because we believe in our work’s accuracy, it does not matter to us.
What was the reason for the name, "intellectual property with spicy taste"?
Intellectual property always has a spicy taste in India and it is always a challenge. For example, during this workshop, I was asked as to why I have two mobile phones and why I don't use a dual SIM phone instead. This goes back to the spicy taste of intellectual property in India, to one Indian patent that we call a bad patent, which has been granted unfairly. This patent claims dual SIM and therefore, its patentee has the right to prevent the import of dual SIM mobile phones. The lawyers in the case (the three lawyers) demanded a large sum of money from Samsung to share in the import interest. They prosecute consumers of Samsung phones for using the dual SIM so that Samsung filed a lawsuit according to the consumer rights law in India that is still open. We wrote about this issue on the blog and tried to make it clear to readers and to identify the perpetrators. This led to a dispute among the lawyers in the case of whether to continue.
Thank you for your participation in this valuable interview, we will be really grateful to add any remarks if you have any explanation or advice for us on intellectual property activities in Iran.
I believe that in countries like Iran also, it is necessary to make intellectual property laws more transparent. The ambiguity of Iran's intellectual property law is due to the fact that no one has entered it and looked at it analytically. You can start by researching and writing about things that seem ambiguous. By doing so, you can make a great contribution to intellectual property protection in Iran.