Views expressed in this piece and in the TIF piece are author’s own.
Vanakam readers!
I have written a longish piece for the India Forum (TIF) on why we need more evidence to justify the current subject matter expansion that is taking place across various domains (from GUIs to GenAI to data exclusivities) and not simply operate on faith. This lament is not new; previously, Prof. Basheer and Swaraj, in many different words, brought up the same concern. The context might be different; the lament is the same. In this piece, I point to the growing subject matter expansion that is taking place across IP domains in the name of ‘innovation’, to create a ‘level playing field’, or to ‘align with global standards’. I criticise this trend and argue that it operates more on faith than on reasonable empirical foundations. I am reproducing excerpts from my piece for the benefit of SpicyIP readers:
“The Indian intellectual property (IP) landscape is undergoing a quiet change. Various government institutions have been active on the IP front, issuing concept notes, circulars, and guidelines, making claims to protect ‘innovation’, create a ‘level playing field’, or ‘align with global standards’.
The content of these guidelines, notices, and circulars seeks to have the effect of increasing the scope of subject matter that is otherwise normally protected, or creating new instruments of exclusion to cordon and close off information goods as private property. This subject matter expansion is happening across various domains, from Graphical User Interfaces (GUIs) to pharmaceutical drugs to generative artificial intelligence (Gen AI) and across intellectual property (IP) laws. This expansion is unwarranted, unsupported by existing evidence, and methodologically flawed.
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What does all of this mean? IP rights impose access costs and reduced competition on consumers to enable information producers or owners to secure private value from the social value generated by the said information through a market-based exclusionary regime. There is no first-order normative principle supporting exclusionary rights over non-rival information; rather, as Syed and Bracha argue, exclusion serves only a second-order institutional purpose: instead of relying on centralised state planners to fund innovation, the state grants temporary exclusionary rights so producers can charge market prices, using decentralised consumer demand signals to channel what gets created. However, using market-based property as a tool within capitalism (a system of generalised market dependence) carries a rider. While IP is only meant to provide limited cost recovery, capitalist markets operate on the imperative of limitless profit maximisation and ceaseless expansion—driving rightsholders and lawmakers to convert every uncaptured social use of information into private exchange-value, inevitably triggering rights creep. Thus, any subject matter expansion regime must be seen in this light and must be supported by evidence that increased access costs and the decrease in competition that accompanies such expansion are outweighed by the benefits of ‘innovation’.
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To list a few of the recent developments, on 23 January 2026, the Department for Promotion of Industry and Internal Trade (DPIIT) issued a concept note proposing amendments to the Designs Act, which broadly advocated for protecting GUIs, icons, and virtual goods under the Act. As I have pointed out elsewhere, GUIs are protected under three distinct regimes though they should not be protected under any of them. It has also been pointed out that GUIs are the ideal poster boy of IP expansionism in the absence of any legal conceptual moorings to constrain such expansion.
Similarly, on 8 December 2025, a Working Paper on Generative AI and Copyright was released. It advocated a statutory licensing model for AI model training, potentially again expanding the scope of subject matter and including uses and information goods that are otherwise not protected by copyright law. The Central Drugs Standard Control Organisation (CDSCO), in its notice dated 8 October 2025, sought to create a level playing field between first mover and follow-on manufacturers on clinical trial data, which establishes the safety and efficacy of a drug.
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The consensus in IP law is that the system must be carefully calibrated to deliver the maximum social and economic benefit. To achieve this, the IP regime must strike a balance between rewarding innovation and ensuring public access.
But as has been pointed out by Mark Lemley and William Fisher, evidence for the justification of the existence of the IP system is barely forthcoming. In a sense, one is caught in the middle. It is unclear what the specific benefits and harms of the existing IP system are, and whether one outweighs the other. In other words, no one is able to say whether the benefits of the existing IP systems outweigh the costs that accompany them, or vice versa.
It would then make ample sense to maintain the status quo and neither expand nor contract the scope of IP rights as they currently exist until coherent reasons are provided. But, unfortunately, as can be seen, that is not the case.
In India, the issue is more serious. The Indian IP regime is woefully data-poor—very little empirical work examines how India’s IP system actually functions. To illustrate this point, take a recent Kerala High Court decision involving Ribociclib (a breast cancer drug). The court chose not to issue directions to the union government to exercise government use provisions under the Patents Act for the simple reason that there was no adequate data on “number of diagnosed patients; patients consuming medicines and those not consuming them [Ribociclib] due to high cost; and patients who have benefited from existing health schemes.”
This does not mean there has been no empirical work. Studies have been done on the impact of introduction of product patenting on generic competition, in addition to Sunil Mani’s article discussing patent filings based on data from the Intellectual Property Office (IPO). The IPO, in its annual reports, along with the World Intellectual Property Organization (WIPO), puts out some interesting statistics on the functioning of the IP regime in India. However, these publications merely offer explanatory data or highlight the potential negative effects of the current ecosystem. They fail to address fundamental questions, such as whether India should expand IP protection to encompass new digital information goods.
The central question remains—why are India’s executive and judicial bodies pushing to expand private monopolies over knowledge or information without empirical justification? Across pharmaceuticals, software, design, and GenAI, policymakers are actively closing off public information goods based on wafer-thin assumptions—vaguely invoking “innovation” or “global standards” as a substitute for evidence.
When the state builds an exclusionary runway for information without data, the costs are paid by everyone. As the late legal scholar Basheer reminded us years ago, intellectual property policy cannot be built on mere faith; instead, it must be driven by empirical facts.”
(These are 950-plus-word extracts from the longer 3000-word piece. To read the original piece in full, please check The India Forum piece here)