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Traditional Knowledge and Intellectual Property Rights : A historical perspective

Presented at Second International Law Conference organized by Indian Society of International Law, New Delhi, 15 Nov. 2004.

Rajesh Kochhar


Indian nationalist leadership of the late 19th century was in a confused state of mind. It could not decide whether it should challenge the colonial empire’s might and incur its wrath or appeal to its sense of noblesse oblige and ask for small favours. Mahatma Gandhi resolved the dilemma by squarely placing the west on the defensive on ethical grounds and for all times to come. (In fact, Mohandas Gandhi became Mahatma Gandhi precisely when he accomplished this.) Third world countries find themselves in a similar pre-Gandhian dilemma on the important question of intellectual property rights associated with traditional knowledge (TK) of which they are the repositories. Should they individually nit pick or should they collectively take a principled stand. The latter option , desirable as it is , is difficult to exercise , the more so because the concept of noblesse oblige seems to have disappeared from international affairs.

The term third world was coined in 1952 by the French demographer Alfred Sauvy (1898-1990) to denote the economically underdeveloped countries. The First and the seond worlds were then described as an afterthought.Capitalist, industrialized countries constituted the first world, whereas the Soviet communist block represented the second world. The coinage was inspired by the expression third estate which denoted the commoners of France before and during the French revolution as opposed to the priests (first estate) and nobles (second estate). With the collapse of the Soviet Union, the second world has disappeared, even though the term third world continues to retain its original meaning.

We would like to define the three worlds in a connected and physically meaningful way, using the industrial revolution as a marker, with the third world retaining its original composition. In this new scheme, the third world comprises countries whose societies have essentially remained untouched by the industrial revolution. The second world consists of (west European and other) countries which have been transformed through industrial revolution, industrialization or by association, but have retained some memories and sensitivities from the pre-industrial times. The first world comprises a solitary country, USA, which is a social product of post-industrialization era, representing a total break from earlier times. The second world has been influenced by intra-European responses and colonialist experience, while the first world has been fashioned entirely by its conscious and subconscious reaction to the Europe it left behind.

When the world was Euro-centric, it was easy to define what was new. If Europe did not know of it, it did not exist before. In 1738 William Champion was granted a patent in his capacity as “the first European to produce metallic zinc”, even though the process was known to have been brought from east Asia (It originated 2000 years age in Aravalli Hills, Rajasthan, India.) However 100 years previously, in 1608, when Hans Lipperhey applied for a patent on telescope, he was turned down “on the ground that it is evident that several others have knowledge of the invention”. By the same logic, in today’s decentralized world if knowledge is available anywhere, it should not be possible to patent it.

Just as the first, physico-chemical, industrial revolution went hand in hand with European colonial expansion, the second, biotechnological, revolution is being attended on by globalization. The industrial revolution was an entirely self-contained European exercise, though it was facilitated by the subjugation of third-world countries. (If zinc metallurgy had not been imported from Asia, it would have been invented afresh.) But the on-going biotechnological revolution needs the third world. It is the third world’s traditional knowledge in civilizationally vital areas of food and health care that is being molecularized for incorporation into the broad-stream of modern science. This would have been a laudable exercise were it not for the retreat of the state and the weakening of internationalism. No body would have minded enrichment of science if some firms were not getting enriched in the process.

Third world countries are inherently incapable of protecting their TK. They have become aware of its value because of the scientific advancement in the west. Most TK of the world is undocumented. Even in countries like India where it was partially committed to paper under colonial auspices, what is now the written word was not self-contained. It was meant as an aid to a living oral tradition. In any case, ancient documents were not prepared to withstand the scrutiny of a modern-day patent attorney. Nations can be expected to plead their case in a court that is above all of them. A country cannot expect to win a case in the domestic court of another country according to the law laid down by the latter. (In the period following the celebrated cancellation of a turmeric patent on India’s objection more than 200 patents have been granted on turmeric, some to Indian organizations themselves. None has been challenged : most are unchallengeable as US laws stand.)

Patent laws in Europe followed by USA were enacted to deal with mechanical contraptions and to protect and further localized interests. Globalization has changed the rules of the game; and molecularization the game itself. Novelty needs a new definition and a new sensitivity. If traditional knowledge provides the initial clue, mere use of sophisticated instrumentation to “unlock” the chemical secrets of plants should not constitute an inventive step. TK should be viewed as a global heritage, to be protected by the world as a whole. The burden of protecting TK should not fall on the emaciated shoulders of its third-world repositories. If any organization exploits it commercially, it should pay a royalty into a global fund meant for the welfare of the world’s poor.

When the Paris Convention on Industrial Property internationalized patent laws in 1883, they had been in existence for 400 years. Today we must frame global IPR laws for situations for which there is no precedent. These laws should not be petty. They should be enshrined in a framework that is universal by being ethical. In 1733 what is now USA was earnestly appealing to England to grant recognition to Thomas Godfrey, the first ever inventor of sextant. Haughtily, London refused. USA has come a long way since. Now that USA has emerged as the solitary world power, its laws should also evolve. It must set an example for rest of the world by amending its own antiquated and parochial patent laws to truly reflect the spirit of a global world.

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Information and communication technology: Role of war and pornography


Rajesh Kochhar

DIMENSIONS of SCIENCE Lecture on 10 June 2003 at India International Centre, New Delhi

War and pornography have played a significant role in the development of information and communication technology (ICT).Both war and porn are manifestation of baser instincts in man and therefore demand a certain degree of perseverance from their patrons. War, or more correctly the preparation therefor, represents state support to the hilt for creation of a new technology, whereas porn represents select public support during its teething days, paving the way for eventual widespread and varied use.

When a new technological process or product is first introduced or used, it is in response to a felt need.Very soon however it generates a momentum of its own, drawing into its fold new adherents whose needs could not have been anticipated before.History of science and technology provides many examples of this.

Innovator vis-à-vis user

By liberating human enquiry from the constraints of physiology, telescope transformed astronomy (and science).Yet telescope was not invented by an astronomer.More importantly, it could not have been invented by an astronomer.It was a spectacle-maker, already in possession of convex and concave lenses, who combined the two, by accident or otherwise, to create an instrument thatcouldsee far.Notsurprisingly, the veryfirst useenvisaged for telescope was in spotting  enemy ships hours before they became visible to the unaided eye.That was in 1608.Almost four centuries later, Hubble space telescope liberated optical astronomy from the constraints imposed by earth’s atmosphere.Yet again, space telescope was not the first one in space.There were others before it, placed in orbit face down by military for spying on terrestrial targets.Obviously, fear of the enemy is a bigger driving force than love of stars.

It did not take terrorists long to recognize that hiding their messages in soft-porn pictures through internet provides them with a safe and convenient way of keeping in touch with one another.Similarly an underworld don has discovered the virtues of being in jail.State protects him from his blood – thirsty rivals while mobile phone permits him to run his business uninterruptedly.

Combination of live sports commentary and wireless telephony has revitalized Satta trade.Havala operators have also upgraded their modus operendi.They no longer use a currency note expressly torn into two as an identifier, but the innocuous cell phone number.In all these cases, a system developed by others for their own purpose has been put to good use by new entrants.Chillingly, internet has opened entirely new vistas for child abusers who can now form an alliance among themselves and target their victims safely and unobtrusively.

The above examples illustrate a general “law”. The bigger the beneficiary of an innovation, the less their chances of having been its author.

The rather eventful journey of a technological product from its inception till mass use can be broadly understood in the framework of a new model involving three-overlapping stages (ECM model)

ECM model 

I.Experimental stage.This stage belongs to the technologists and specialists who create and develop a new product over a period of time to a level that it can be made available to the non-specialist for use.

II.Committed-use stage.This class of user, by virtue of his commitment, remains undaunted by the defects and shortcomings of the new product, gives it vital support in its nascent state and thereby helps its further development to a stage where it can be considered user friendly, and economically viable.

III.Mass-use stage.This stage is characterized by what we may call “Moronification of technology”, whereby a technology is simplified to such an extent that it can be used without application of mind or without any attendant risk.The product is now ready for mass use, which as stated earlier generates its own momentum, and creates its own culture freeing the technology from its previous history.

Colt’s revolver: A case study

We shall now apply the ECM model to the case history of revolver, a major 19th century technological product invented by Samuel Colt (1813-1862) in USA.Working as a sailor on a ship bound for London and Calcutta and by observing the ship’s wheel, or possibly the windlass, Colt in 1831 came up with the idea of a gun with a revolving cylinder that could fire multiple shots from a single barrel.He first made a crude model in wood and then got prototypes made by a gunsmith.In 1835 he patented his revolver in England and France.Next year he received a US patent and started production.The period 1831-1836 corresponds to the first, Experimental, stage of the model.

The second, Committed-user, stage may be said to last from 1836 to 1873 with major patronage and incentives for improvement coming from the military.An ordinary rifle required time for reloading and therefore could be fired only once or twice in a minute.In the same time however a native American could devastatingly fire 20 arrows.Repeating firearms would be extremely effective against arrows, and the US military did order some from Colt.But since there were not too many native Americans to be shot, the number of orders was small, and the Colt company collapsed.

Colt’s fortunes were revived with the war against Mexico in 1847, when the government placed bulk orders for revolvers and rifles.American civil war,California gold rush, colonization of American west, Crimean war and demand from Europe all brought tremendous prosperity to Colt, and improvements in his death machines.Early guns were very heavy, complicated, “easily fouled up”, and potentially lethal to the shooter.The last defect was remedied in 1873, with the development of the metallic-cartridge revolver, the mainstay of a model ironically called Peacemaker, which soon became not only the standard issue of the US army but also the most popular gun in the west.In the committed use stage, the revolver was aimed at a designated enemy; in its mass-use stage, it could be aimed at friends and strangers also.

Internet

Internet is a child of fear.It was created to withstand a nuclear war.A traditional communication system collects all information at a central control, processes it and then sends it somewhere else.This system would collapse if a nuclear attack destroyed the central control.US Defence department in mid-1960s started funding research to create a computer network without a central control system.The key to the new network was “packet switching”.A dataset was broken into small packets, each labelled with the destination address.Once they arrive at the destination, the packets would be reassembled.It does not matter in what order and by what route a packet reaches its destination.A packet could be sent to an intermediary site.If this site was not working or was processing slowly, the packet would find another route and eventually reach its destination.This internet is based on a principle similar to the old Indic philosophy:Destination is important, not the route.Internet is decentralized by design and inherently anarchic.Neither can its connectivity be thwarted nor the content censored.Therein lie internet’s strengths and risks.

The first network created in 1969 was called ARPAnet, after the funding agency, namely Advanced Research Projects Agency.In 1972, internet e-mail address incorporated the now-familiar @ sign.In January 1983, a new protocol called Transmission Control Protocol/Internet Protocol was introduced to handle a large number of hosts in the network.The same year ARPAnet was split into ARPAnet and MILnet, both remaining under Defence department.It is a measure of the role of military in the early years of internet that as many as 68 of the 113 nodes went to MILnet.(ARPAnet would be closed in 1990).

In the early 1980s, a number of large and small specialist networks came up including the one for high-energy physicists.It is this network that created World Wide Web, in 1989, which enables a computer to access information stored elsewhere.Web’s ability to transmit moving and stationary images and sound gave internet a vitality, creators of web or net could never have imagined.Web was thrown open to public in 1991.The term “surfing the net” was coined in 1992, and the net itself was commercialized in 1995.

The period from ARPAnet (1969) to commercialization of web-fortified internet (1995) is then the Experimental stage of our ECM model.

Table 1 ; Internet 1969-1995

1969 ARPAnet established. 
1972 @ sign introduced in e-mail address. 
1983 TCP/IP introduced as regulatory protocol. ARPAnet split into ARPAnet and MILnet, both under US Defence department. 68 out of the 113 nodes went to MILnet. 
1989 World Wide Web created. 
1990 ARPAnet closed. 
1991 Web released for public use. 
1992 Term “surfing the net”  coined. 
1995 Internet commercialized. 

Committed-use stage

(Please note that in the following no moral judgement is made on the website content)

Porn sites were among the very first ones on commercialized net.Sex has always sold, but never so well as on the net.Porners have benefitted from the net, and strengthened it in the process.Porn sites have contributed at three levels:technological innovations; standardization; and lessons for mainstream business.

Since porn sites did not get any support from venture funds, they had to make money and quickly.They acquired top-class hardware and high bandwidths, and went on to hire thousands of highly skilled workers like network engineers, programmers and graphic designers.They gave valuable business to companies like Sun Microsystems and Silicon Graphics.In a little publicized incident, when a porn portal clandestinely arranged to route calls from a client through more expensive lines, it had the technical expertise of AT&T at its disposal.

To many porn customers who were abashed to visit a traditional sex shop, e-commerce came as a godsend.No wonder porners have been pioneers in e-commerce.They were the first to accept credit cards for on-line payment and to use shopping-cart technology.Porn sites have been the earliest adopters of innovations such as streaming video. Porn-site profits often reach 30%, compared to a paltry 0.2% profit in online stock trading.Getting over their early revulsions, mainstream companies like Disney and Warner Brothers are trying to benefit from technologies and business practices originating from porn services.

In the early years, porn sites accounted for as much as 80% of total e-commerce revenue.The figure has since come down to about 20%, signifying transition from the Committed-use stage to Mass-use stage for the internet.

Mobile internet

In the early 1980s Europe had a number of analog cellular telephone systems, operating within boundaries of different countries, incompatible with one another in equipment and operation.Keeping in mind requirements of a unified Europe, expanded market for each type of equipment, and advantages of economy of scale in 1982, Europe set up a study group called Groupe Special Mobile (GSM) to study and develop a pan-European mobile system.GSM standard was issued and commercial service started mid 1991.The most basic teleservice provided by GSM is telephony.Additionally, a number of data services are also offered.A unique feature of GSM, not found in older analog systems, is the SMS (Short Messaging Service) whereby short alphanumeric messages can be sent.Messages can also be stored in the SIM card for later retrieval.GSM systems now exist on every continent and account for 65% of the world’s mobile networks.Very aptly, GSM now stands for Global System for Mobile communication.

SMS is an example of a peripheral feature that caught on without the knowledge of network operators and went on to become the mainstay of the system.SMS was rather difficult to use.It was left to the young people to master the technique and use the service, developing in the process a whole new economical language of their own, combining letters, numbers and other symbols.While a phone call cost money, SMS was free.Network operators were technically unable to bill pre-pay customers for SMS.The technologically savvy young mobile – owners made use of this loophole to the hilt.It is only after seeing the huge popularity of SMS that the network operators rose to change prepay customers for SMS messages.

Next generation of mobile phones will provide internet connectivity, which means that it will be possible to view pictures and video on the screen of a mobile phone.Operators have paid an exorbitant $ 1 bn as license fees for running 3G mobile services in Europe.Unfortunately for them 3G has miserably failed to repeat the technological success of GSM.Much of the money spent by operators on 3G is already considered unrecoverable.“The only services that are likely to generate the necessary revenues to pay for the licenses will be thoroughly unsavoury ones such as pornography, gambling, and worse”.A great advantage of buying pornography over a mobile network is that billing can be handled by the operator without the subscriber having to submit credit card details over the internet. Many porn groups have signed agreements with operators in Britain and Spain as well as several other European operators for porn-related SMS.

“In new technologies, adult services usually account for 80 per cent of traffic.It has been so with video, the internet and DVD.It is natural to assume it will be the same with mobile internet”, according to CEO of an “adult services” company.

To sum up, baser instincts of man play a major role in the development of science and technology.Sad but true.