Dr Ghayur Alam is the Dean, Undergraduate Studies, and Senior Professor in Business Laws and IPR (Intellectual Property Rights) at the National Law Institute University, Bhopal. Professor Ghayur Alam’s research paper on patent has been published by the World Trade Organisation journal. He is the only Indian to get space in 10th volume of the journal. His note has also been published in the newsletter of WIPO-WTO Colloquium 2021 and he was a valuable contributor towards the WIPO-WTO colloquium.
In this conversation with Vranda Agarwal, he shares with us some valuable insights on good legal research and its value in contributing towards meaningful legal discourse.
1. Can you please introduce yourself and give us a glimpse of your journey as an academician?
My odyssey as a law student coincided with many path-breaking events and processes taking place globally and locally. Indian economy was on the road of liberalisation, privatisation and globalisation; Uruguay Round of Negotiations had two more years to go; Earth Summit was close to conclusion, personal computer had disrupted typewriters, and internet was born but was in its infancy. The WTO Agreement had come into force few months before I graduated in law and Dolly was to be cloned very soon. After graduating in law and given the scenario, I decided to be on-board international trade law, IP law and technology law in LLM course. During the course of study at the masters level, I cleared UGC NET and wrote three research papers. First research paper examined the hypothesis that rise in crime rate is explained by the rise in population and certainty and severity punishment does not affect crime rate and the study was empirical statistical. Second research paper analysed and critiqued the provisions of the Arbitration and Conciliation Act, 1996. Third co-authored paper on “Biotechnology and Contemporary Law” was presented in an international conference.
The year I completed LLM, National Law Institute was established at Bhopal. Before commencement of teaching National Law Institute became National Law Institute University (NLIU) by an amending Act of legislature. I applied for a teaching position at NLIU and got selected. I came to Bhopal on 27-7-1998 and joined the services from 1-8-1998 as Assistant Professor of Law. When I joined the university, the university was existing in the gazette notification. Land was not earmarked, funds were not released, no building was identified, no appointment was made, and no student was admitted. Within few days of my joining, Professor Virendra Singh Rekhi, the Founder Director with the tremendous support of Mr Digvijay Singh, the then Chief Minister of Madhya Pradesh was able to get a government building allotted for a period till the buildings of the university come into existence. The building allotted to the university was home to some buffaloes and other domestic animals who were made to make way for the advancement of legal education. Cleaning and maintenance work of the building started in the first week of August 1998 at a war footing under the direct supervision of the then Director and the then Chief Minister and was completed on 31-8-1998. In the meantime, thirty students, through All-India entrance test, were admitted to the first batch of BA LLB (Hons.) course. Inaugural function was held on 1-9-1998 and classes also commenced immediately thereafter.
Being the first person to join as member of faculty, I got the opportunity to supervise the cleaning and maintenance work of the building, get photocopies made of letters to be sent to the provisionally selected candidates for admission, go to the post office to send the letters and facilitate the admission process. Witnessing the university land in a building from the gazette notification, arrival of students, arrival of other teachers and non-teaching staff, development of curricula, evolution of learning-teaching method, recognition from University Grants Commission (UGC) and Bar Council of India (BCI) have been learning and satisfying experience.
My first interaction on common law method with the students was on the very first day of the university immediately after the inaugural lectures by Justice M.N. Venkatachaliah, former Chief Justice of India and Justice J.S. Verma, former Chief Justice of India. To the first batch of students, I taught more than fifteen subjects including common law method, law of contract and sale of goods, criminology, sociology of law, international trade law, constitutional and administrative law, banking law, jurisprudence, accountancy, anti-dumping law, cyber law, and IP law.
For the last twenty-four years at NLIU, I am learning from my students. Students are the most effective teachers of their teachers. I owe a lot to them for they are keeping me younger and agile. Students do not allow their teachers to have the problem of generation gap. Every batch of students brings refreshing vibes and intellectually stimulating energies.
2. Intellectual property rights is a field of law which extensively relates to science. This is something a lot of lawyers and even researchers struggle with while dealing with this law. How do you think this can be effectively tackled by the lawyers and students alike?
People may be divided into various categories on several On the basis of “thinking” people may be divided into two categories. Those who think it is simple and doable and those who think that it is difficult, complex and hence is doable with lot of pains and hassles at best or cannot be done at all. Things are not simple or complex by their nature. Nonetheless, it is the state of mind or thinking that determines whether something is simple or complex. In hindsight we all are wiser in hindsight. Once a complex is known, it is simple. Till a simple is unknown, it is difficult and complex. Point is: am I working or am I not working for it and towards it. If I am not working for it or towards it, it will remain difficult, complex and not doable.
First of all, my apologies to everyone who is reading this piece if I appear to be boastful. I am only trying to narrate my journey as a student with all humility and modesty at my disposal. I studied science till VIII class. In high school, I did not study science. In 10+2, I studied commerce and heard the name of copyright, trade mark and patent. When I was doing 10+2, the university introduced “foundation course” for all 10+2 students from across the disciplines. The idea of introducing the foundation course was to introduce all the students of 10+2 to basic concepts and theories of all the other disciplines. I must admit that some of our batchmates took this course as an extra burden and some of us took it as an opportunity to learn about other disciplines. I belonged to the latter group. Commerce students were taught biology, chemistry, physics, mathematics, english including phonetics, history, sociology, and political science. Perhaps, none of us realised the full impact of foundation course on our lives. Now when I reflect on it I become nostalgic and salute the vision of those who introduced foundation course for us. It follows that the educational institution can shape the persona of their students in tremendous ways. After doing 10+2, I took admission in BCom (Hons.) and thereafter I became a law student. To cut the story short, I did not get any certificate or degree in science after VIII class, yet I find science and technology fascinating, meaningful and easy to comprehend once I understand their basic building blocks.
My first brush with IP was in LLM course. I started flirting with it since then. My romance with IP and technology began when I worked on a paper titled “Biotechnology and Contemporary Law” in 1997. Since then, I never looked back. I fell in love with IP when I introduced two courses on IP law in 2001 at NLIU at the UG level. As luck would have it, I married a microbiologist in 2004. She helps me better understand patents on life forms and biotechnology patents.
In 2007 I introduced courses on IP law for LLM students. A PhD student successfully completed her PhD thesis on trade secret law in 2012 under my supervision. Four students have successfully completed their PhD thesis on different dimensions of patent law and eight students are reading for their PhD under my supervision on topics relating to IP law and other laws.
A person trained in the artificial reasoning of law is expected to understand and analyse all types of facts under the sun. A person trained in law is equipped with the ability to learn new facts – technological, social, economic, political – efficiently and effectively. She also has the ability to see whether the given facts fit – squarely or other otherwise – or do not fit at all into the existing legal categories.
Law is a discipline singularly empty of born geniuses. Learning law and doing law requires hard work, continuous reading, lot of thinking, persistent practice and perseverance.
First of all, law students, lawyers and researchers should develop the habit of reading, critical and creative thinking. Brain of homo sapiens has tremendous potential. No fact is beyond the capacity of human brain. A person trained in law knows what to do with facts and how to know if they fit or do not fit in legal categories.
IP law is challenging. Patent law is the most challenging branch of IP law for it deals with invention. Invention by definition is new – something that has not been understood by anyone except by the inventor. Understanding such a thing by definition is a tall order nonetheless if one is trained in law one can understand it. Real question is whether one is trained in law or is not trained in law. If a person is trained in law, she will find a way to handle IP law efficiently and effectively.
3. Legal research especially in areas as dynamic as IPR forms an integral part of legal discourse but many a times the young graduates face a difficulty in approaching it the correct way. As an academician do you have any formula which you use while starting out any research?
Educational institutions are expected to show students the correct way of learning and doing research. A student is expected to give her/his best to herself/himself by working hard and interacting with the teachers in a meaningful manner.
Research is about new and useful ideas. Teachers are expected to train the students in the art and science of research and lead the students by example and not merely by lectures and sermons. Teachers are expected to demonstrate the processes and substance of research. Students are expected to learn on their own and from their teachers as much as possible. It is increasingly becoming a fashion to miss the opportunities that come our way. Student life is the best part of life, yet many students do not realise it and lament about the opportunity that is missed. My advice to all my students has been that give your best to yourself in your student life. Be selfish as a student, without harming others, so that you can prepare yourself to help yourself and others.
Formula of starting any research is cliché. Research begins with the identification of a problem. All problems are not legal problems but some problems are legal problems. First question in legal research is whether the given problem is a legal problem. A legal problem may exist within and without law. A legal problem may be conceptual, definitional, theoretical, doctrinal, statutory, institutional, structural, implementational, and so on so forth. Second step in legal research, therefore, identifying the nature of the problem and formulation thereof. After the formulation, the third step is to read and know if existing literature deals with the problem and if so to what extent. The area not covered by the existing knowledge should become the focus of research. Fourth step is to identify the most appropriate method to carry out the research. Fifth step is to prepare a plan to carry out the research as per the available time and resources. Sixth step is to write the research report according to prescribed or any other accepted method of research. It is said that a research report should be read, reread and edited at least for twenty-five times before submission. Research begins with preliminary reading – further reading – writing – thinking – reading – writing – and it goes on and on till it reaches a logical, meaningful and useful conclusion which may help promote further research and inform policy choices.
Read, reread and re-reread … think, rethink and re-rethink … write, rewrite, re-rewrite … discuss with peers. Only formula is work hard. If one is hardly working, one is not cut to do research.
4. Please tell us about your paper which was published at WIPO-WTO journal and the journey to this accomplishment.
Monsanto’s Bt cotton patent, Indian courts and public policy present a legal and policy analysis of Indian patent law with special reference to an invented nucleic acid sequence (NAS) after being inserted into a seed or plant becomes part of the seed or the plant. May I advise the readers of this piece to go through the paper which is available on the website of WTO. I also request the readers to write a critical review of the paper demonstrating the weaknesses and loose ends therein. This is how knowledge develops and we evolve intellectually.
At the WIPO-WTO Colloquium 2019, I came to know that maximum number of abstracts, in comparison to other countries, was received from India. I had a sense of satisfaction. Review process at WIPO-WTO is very rigorous. After the acceptance of abstract, I was invited to participate in the colloquium and present my paper. Around thirty papers were presented and we were told that only 12 to 15 papers will be published. I was keeping my fingers crossed. When I received the preliminary review report suggesting both formatting and substantive changes, I was relieved. I sat for 37 hours without any break, except for biological needs excluding sleep and carried out the required changes and met the deadline. After a waiting period of few months, I received the second review report for making some more improvisation that I made to the best of my ability. Finally, I received a final review report suggesting some more changes. It took around 22 months from the date of submission of abstract to the publication. During the long-drawn process, I discovered myself more deeply and got an opportunity to estimate my standing in the world of IP scholarship.
5. WIPO-WTO colloquium is an excellent effort towards stimulating debate on IP issues. How was your experience with it? What is your opinion on presence of such initiatives in not just field of IPR but the entire legal system?
WIPO-WTO colloquium is significant in many ways. It provides an excellent opportunity to interact with IP scholars, IP practitioners and IP administrators from across the world and build academic network. One gets the opportunity to measure one’s own standing in IP scholarship. Discussion on existing and emerging issues of IP provides meaningful insight into IP jurisprudence.
Such initiatives in other branches of law will definitely help develop meaningful and holistic discourse on legal system. Financing of such initiatives is often a challenge in launching such initiatives. Existence of WIPO-WTO, cooperation between WIPO and WTO since the inception of WTO, visionary leadership at WIPO-WTO towards academics and research are some of the main reasons of the initiative called WIPO-WTO colloquium. Other international organisations may also launch such initiatives. Such initiatives by international organisations promote not only research but also promote fraternity and idea of global citizenship. Educational institutions may also launch such initiatives in different branches of law. A colloquium on the legal systems of the world will be more meaningful to develop the dialogue and debate on the entire legal system.
6. In law school, a lot of young minds incline towards mooting rather than publications due to lack of opinions and brevity in the beginning and also somewhat monotonous nature of research involved in publications. As they progress, they develop the opinions and reasoning but struggle with their busy schedules and often times end up not putting out their take owing to lack of confidence. How do you think they should handle this and how should they go about understanding the concepts and making meaningful contributions?
Every homo sapiens on the planet earth has only twenty-four hours a day. A miniscule of them become winners of nobel prize and other international recognition and prizes. Circumstances are never ideal for anyone. The moment I am breathing is the best moment. Depends what choices do I make for myself.
If I am not mistaken, flagship program of NLUs is undergraduate program in law. Where the focus is more on teaching, less on learning and lesser on research. UG level curriculum by necessity are designed to prepare professionals and not scholars. At UG level, students are more interested in mooting, internships, pre-placement and other co-curricular and extra-curricular activities and may be rightly so. Therefore, research generally takes a backseat at the UG level. LLM and PhD courses generally do not get the attention that they deserve. Universities are established for learning-teaching but they make their mark only by quality research, scholarship and publication. Culture of research, scholarship and publication in NLUs does not seem to be encouraging. Most of the NLUs have poor student-teacher ratio even below the ratio prescribed by UGC and BCI. In comparison to best law schools of the world, student-teacher ratio is even poorer in NLUs. Apart from teaching, teachers are also involved in administrative works. Although NLUs claim to do continuous evaluation of students by conducting mid-term and end-term examinations and project writing, yet the focus seems to be on summative assessment rather than formative assessment. Summative assessment mainly focuses on memorisation and reproduction of memorised knowledge in the examination. Hardly the emphasis is given to critical analysis and creative outcome. Unless the focus shifts to formative assessment on a continuous and regular basis, students will not know their individual strengths and weaknesses. One problem that plagues almost all the educational institutions, not only unique to NLUs, is the absence or at least lack of innovation in learning-teaching method. Although it is claimed that Socratic method is the method of learning-teaching, yet lecture method mainly the form of monologue seems to be the dominant method for centuries. I may be forgiven to say that change is not the only constant, it has a sibling called learning-teaching method. Because of monotony of lecture method, students learning quotient get governed by law of diminishing marginal utility, even if they do not study economics. Students hardly get the opportunity to learn the processes of doing substantive research.
It is a misconception that mooting can be done without research. Research is integral to mooting. If a student is active in mooting, the student is active in research. In fact, mooting is research plus.
My two words advice to student is work hard. Everything else will fall in line naturally and automatically.
7. As a professor you encounter a lot of students doing as well as avoiding a lot of things. Please advise the readers on how and where to start if they wish to make a career in IPR laws. Also, what can be the possible options for them as they embark upon this journey?
The students who are avoiding studies cannot be called students for one does not study is not a student. During student life many of us do not realise the importance of time and discipline. Depends, am I taking discipline as punishment or as freedom?
There are seven IP statutes in India enacted by the Parliament plus trade secret law as declared by courts. One must study the statutes and related judicial decisions to have a basic understanding of IP law. Lot of material is available on the websites of WIPO and WTO and may fruitfully utilise them to start with. WIPO also offers several on certificate programs for free in the area of IP law.
Umpteen number of options are available in the area of IP law to students, teachers and professionals. Students may go for master degree program in IP law in India or abroad. They can publish. Both on the litigation side and transactional side, there are enormous opportunities for even today only handful of lawyers are available in this area.
8. The pandemic has changed the way world operates. How is the IPR system dealing with the change? How do you describe the shift in the system since the time you started studying the IPR vs. now when anything and everything is seen in terms of intellectual property?
IP and particularly patent emerged as one of hopes during pandemic. In one of my papers, awaiting publication, I have argued that the world needs more and more patents on pandemic related medicines and vaccines. More patents mean more players, more players mean more supply, more supply more availability, more availability means more accessibility, more accessibility means less prices and so on and so forth. No doubt IP is increasingly becoming ubiquitous and getting expanded both from within and without. IP as such is not an evil. Certain trade practices in the name of IP may become evil. Yet till IP remains a means to promote social good it is good. If it promotes hindrances to social good, law must intervene and stop such practices.
In my opinion, however, it is an overstatement to say that “now anything and everything is seen in terms of IP”. It may be better to say “now IP is affecting our lives at the fundamental level in unprecedented ways”.
9. There has been a lot of debate and discussion around the intellectual property in agriculture practices which is also very relevant for our nation. What is your view on this? How do you think fresh approach by young minds could help the cause of nation as well as of IPR laws?
Agriculture has been neglected by IP till 2001 in India. With the enactment of the Protection of Plant Varieties and Farmers’ Rights, 2001 some aspects of agriculture have been brought in the family of IP. Exclusion of invented seeds and plants under Section 3(j) of the Patents Act, 1970 does not seem to be in the interest of the farmers. India may experiment with petty patents for invented seeds and plants for a short span of time. Let us see if our agricultural scientists can invent new seeds and plants to increase crop yield of healthy and nutritious food crop with the help of biotechnology and gene-editing.
10. Any message that you would like to share with all the young students and practitioners who are capable of great things but lack confidence in themselves.
Confidence comes from within if one is hardworking and honest. Every night before going to bed ask yourself the question: Did I give my best to the work that I did today? If the answer is in affirmative then nothing more is required. If the answer is in the negative, then introspect and try to do your best next morning. Main reason, to my mind, for lack or absence of confidence is lack or absence of hard work with honesty. To work is nature.
