Yoga Wars: Patents on Yoga Positions?

• This is the first post in our “yoga wars” series where invited commentators and members of the research group on cultural property write on the uses and limitations of patents as an international instrument for protecting yoga.

Whenever the rights to Disney creations like Mickey Mouse threaten to expire, copyright is extended in the United States. It appears equally bizarre when a yoga teacher applies for a patent for practicing yoga at 105 degrees Fahrenheit (“hot yoga”). Are these two connected? From an economic point of view, these are two examples of the allocation of property rights. In the first case, a copyright exists which the author can sell and which allows the holder to exercise certain rights from which he can exclude others. These rights are relatively comprehensive in terms of reproduction, but they are relatively soft when someone refers indirectly to the work. In the second case, an inventor of “hot yoga” can apply for a patent if he creates something sufficiently new which she documents accordingly in the application. Like in copyright, the work itself is not protected from being viewed by others. The work of an author is, in the end, public and a patent application is as well. In both cases, the issued right is intended to offer an incentive to create something new, because – so the argument – if we hold a formal right to what we create, we can sell someone else a license to use our product or sell the rights to its reproduction. But in both cases, this justification is absurd: Walt Disney’s Mickey Mouse was created long before and the extension of copyright only secures the copyright holder extended monopoly rights. At the time of its creation the author of Mickey Mouse did not calculate in a period of 70 years after the death. This was certainly not his incentive. And the resourceful yoga teacher only changed the outside temperature without creating anything substantial novel. Ultimately, it was for him little more than an attempt to earn additional license revenue, which he wanted to take from those who had the same idea simultaneously or previously. Considering that prevailing temperatures in many parts of India correspond to the temperature mentioned in the patent application anyway, it becomes all the more absurd.
The establishment of patents for infinitely small inventions (why not a patent on yoga at 106 degrees Fahrenheit?) is at best zero and most often negative. The idea put forward by the Indian government to catalog all existing yoga positions and define them as a public good is a good defense against new patent applications on traditional knowledge in India. But does this help generally in the protection of traditional knowledge? In principle, if I know something that I want to protect, I keep it for myself. Secrecy is not only effective where certain groups want to protect religious ceremonies for example, but also in small and medium-sized enterprises where it is a common strategy for dealing with new innovations. For these enterprises gaining the formal protection of a patent and defending it is too complicated, and they prefer to use their time advantage and staff-retention strategies in order to exploit their idea commercially. But exactly this is no longer possible if a catalog is created containing all existing yoga positions. Therefore, each actor with access to traditional knowledge must carefully consider whether he will reveal his traditional knowledge or – like small and medium-sized enterprises – bet on secrecy. Is the knowledge already available publicly, then she can, by means of its official registration, ensure that it remains in the public domain.
Prof. Dr. Kilian Bizer is Chair of Economic Policy and SME Research at the University of Göttingen and project director of the sub-project “The Law and Economics of cultural property: An economic analysis of the institutions of rule-making” within the research group on cultural property.