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Approximately five years ago two lawsuits relating to ownership claims in yoga grabbed international attention. These disputes, termed “the yoga wars”, set off a series of reactions among interested parties from around the world. This article will trace two reactions to Bikram Choudhury´s decision to apply for, and attempt to enforce copyright and trademarks claims to a specific series of 26 yoga postures. These reactions are based upon the premise that yoga ethically exists in the commons. However, as will be demonstrated, this notion of the commons is not static, but is complex and differs significantly in each instance employed.
Yoga is a several thousand year-old South Asian spiritual philosophy that trains the embodied mind to accept ‘Truth’ through a combination of physical and mental practices. In the past five decades, cosmopolitan consumers attracted to alternative health systems have created a market demand for a commercial yoga that focuses upon the physical performance and benefits of the practice. In 2004, it was estimated that commercial yoga generated more than $8 billion internationally, most of that amount stemming from US and European markets. In an effort to preserve control over some aspect of this profitable market different parties have, in the last several years, registered thousands of yoga-related IP claims. Figures from US government agencies indicate that there are 2,315 trademarks, 150 yoga-related copyrights, and 135 patents on yoga accessories registered in this country alone. However, this is not an isolated phenomenon and similar intellectual property claims can be found in other states around the world including Japan, the European Union, and even India. Despite these numbers the first attempts to enforce such claims did not occur until 2002.
Bikram yoga, often disparagingly referred to as the “McDonald’s of yoga”, is a highly profitable practice that was pioneered by the notorious yogi, Bikram Choudhury, who immigrated from India to the United States 30 years ago. Bikram’s signature series involves a specific arrangement of 26 postures and two breathing exercises performed over a 90 minute period in a studio heated to 105°F. Approximately five years ago Bikram began officially registering copyrights and trademarks on his yoga series. In 2002 he began his first lawsuit for copyright violation against a studio owner who was his former student. This suit was settled out of court and no decision was established about the validity of Bikram’s claims. However, because Bikram continued to threaten legal action against other studios and the issue remained unsettled, Open Source Yoga Unity (OSYU) was formed to address these issues.
OSYU’s mission is to protect “the public nature” of yoga in all its expressions and to bring Bikram to court, thus, “ensuring [yoga’s] continued natural unfettered practice for all to enjoy and develop”. OSYU attempted to achieve this vision through a lawsuit against Bikram for declaratory judgement that his copyright was invalid.
Like the earlier case, however, the OSYU dispute ended before reaching a legal conclusion when both parties agreed to settle out of court in April 2005. The OSYU argument for a public domain practice is, debatably, a position that remains true to the philosophical root-ethics of yoga. However, traditionally speaking, practitioners of yoga are not always allowed unfettered access to the knowledge. Instead, traditionally, access to yogic knowledge is restricted by a guru or teacher, who has the responsibility to determine if a student is capable of safely receiving advanced spiritual instruction.
Because the logic behind claims to own yoga seemed incongruent with both its traditional practice and IP law, the Bikram lawsuits received international media attention. This publicity prompted the reactions of several actors including that of the Indian government, who contends that since the country shares a special relationship with yoga, the state has both the ethical and legal right and responsibility, to protect the practice from privatization. Thus, because certain entrepreneurs are moving to “own” specific aspects of yoga, and some countries are allowing this to occur by registering IP claims, the state has no other choice, but to act as a protective guardian. This equation of state and cultural guardianship that has been particularly emphasized in the case of yoga due to the practice’s economic, spiritual, and political significance in India.
Though it appears that the government of India first became concerned with global circulation and private IP claims to yoga after the Bikram lawsuits, it had previously been concerned with the piracy of its cultural heritage from the late 1990s. This concern was triggered by patent claims on traditional Indian uses of agricultural and botanical products such as neem, turmeric, and basmati rice. Though the government of India has successfully challenged some of these patents – it took several years to develop sufficient legal evidence, with the cost of the process amounting to millions of dollars.
Concerned that similar situations could recur in the future, the Indian government decided to create a Traditional Knowledge Digital Library (TKDL) as a preventative measure. As a result of the Bikram lawsuits, one section of the TKDL has been dedicated to the documentation and digital preservation of yogic practice. Once completed this portion of the TKDL will contain thousands of pages of ancient texts translated into five languages and illustrations of a few thousand postures.
Originally, the TKDL was intended to function so as to negate private property claims to Indian traditional knowledge and early discussions imagined an open access system. However, this decision was revised after discussions with advisors from international organizations, who feared such openness could destroy the state’s future use of its traditional knowledge as an economic resource. Thus, access was only to be granted to IP examiners. However, presently there have been indications that access may be granted to others on a sliding fee scale that is pegged to the identity of the party (i.e., educational institutions and pharmaceutical companies would pay different fees and have different access rights).
The intended use of the TKDL, which under its terms of use policy, is presently defined as a proprietary database of the Indian government, seems to be in flux. This volatile state demonstrates the Indian government’s changing conception of the commons, and who is entitled to access of these commons, in which yoga and other similar traditional knowledge systems reside. This instability is mirrored in how other organisations, such as OSYU, employ similar notions with respect to a practice that, arguably, may not have been “traditionally” subject to an absolute free and open access from its inception.
tags: irvine-and-tucson-usbangalore-india united states culture
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