Recently, the Union Cabinet approved the Modi Government’s Intellectual Property Rights Policy which is clearly based upon the pro-IP ideology. The national intellectual property policy is the first of its kind policy which is drafted for India and rewards big capital. The policy deals with all types of intellectual property together in one structure and aims at encouraging the intellectual property owners by sanctioning them monopoly rights.
The policy aims at governing the Trade Marks, Patents and Designs Act which was controlled by the Controller General of Patents, Designs and Trade Marks, Copyright Act which was administered by the Ministry of Human Resources and Development, the Semiconductor Integrated Circuits Layout-Design Act controlled by the Information Technology Department, the Biological Diversity Act which was under the Ministry of Environment and Forests and the Protection of Plant Varieties and Farmers’ Rights Act which is under the aegis of Ministry of Agriculture.
The very purpose of the national intellectual property is to create awareness about the need of intellectual property rights as an economic tool and a marketable financial asset. Here, the policy-makers should be reminded of how the public banking system was robbed when it relied on the valuation of the Kingfisher to release funds to Vijay Mallya.[1] Such a policy will enable the inventors to ascertain their ability for protecting and generating intellectual property rights and thereby help in strengthening the IP culture which in turn will generate employment opportunities and will help to cause wealth in the economy.
The tough measures which have been taken by the Government in the last two decades have led to the establishment of a Trips agreement and a dynamic IPR regime. Furthermore, India was the first country to ratify the Marrakesh Treaty, 2013 for access to published works by visually impaired persons. The accession to the Madrid Protocol in 2013 is a move towards global alignment for proprietors of mark.[2] Also, the courts in India have lucidly expressed the purpose of our laws by regularly enforcing IPRs through judicial pronouncements.
The intellectual property in India is regulated by various rules and regulations and the legal provisions should be implemented in a way so as to avoid any kind of conflict. Issues relating to technical, economy, and legal should be resolved by consensus as they are for the benefit of the public at large.
Mission and vision of the new IP Policy
Intellectual property promotes culture, science and technology, traditional knowledge and biodiversity resources. Knowledge is the main component of development and knowledge owned is transformed into knowledge shared. This policy aims to bring about a balanced intellectual property rights system in India in order to stimulate creativity and innovation, accelerate security of food, and protect the environment.
Objectives of the new IPR Policy
(1) Awareness of IPR
Earlier, monetisation of knowledge was never a tradition in India but our age is driven by the knowledge economy and hence there arises a need to propagate the value of transforming knowledge into IP assets. A number of IP inventors and creators are unaware of the benefits of IP rights.
This policy adopts a slogan of: Creative India: Innovative India[3] and suggests linking it with other national initiatives like “Make in India”, “Smart Cities”, etc. It is also suggested to set up a “Hall of Fame” to celebrate the success of IP innovators and distribution of awards, World IP Day should be celebrated in different cities, IP Museum should be established, IP should be included in course and curriculum of educational institutions and universities, media should be engaged so as to educate them about the importance of IP related issues. Moving exhibits such as road shows, IP promotion in multiple linguistics and pictorial representations for those who are unable to read should be made a part of this programme.
(2) IPR generation
The number of IP filings and grants has tremendously increased in the recent years in India, however, the percentage of filings by Indians remains relatively low.[4] India is among top five filers in the world with maximum being filed by Indians. Much contribution to the Indian economy is brought from the copyright sector. Research and development needs to be promoted through various tax benefits so that affordable drugs could be developed. The digital library of traditional knowledge should be expanded beyond Unani, Ayurveda, Siddha and Yoga. This objective can be achieved by developing affordable drugs related to neglected diseases, focusing at IPR driven research, encourage innovation in agriculture and pisciculture, increasing domestic filing of patent application and generating technologies relating to the cybersecurity.
(3) Legal and legislative framework
Innovation is the driving force of knowledge in the economy which helps to develop a strong and balanced legal framework. The existing laws were enacted to consider the national requirements and international regimes. India shall remain committed to the Doha Declaration on Trips Agreement and Public Health. Cinematograph Act can be amended to an extent so as to provide illegal duplication of films.[5]
(4) Administration and management
The object should be to modernise the IPR administration which is service oriented. The IPOs now have the challenge to make their operation more cost effective and efficient and at the same time become more user friendly by giving user friendly services to the users. Technical cooperation should be promoted with continuous efforts in areas like training, human resource development and other services.
(5) Commercialisation of IPR
In order to capture the monetary value of the IPRs the entrepreneurship should be encouraged. It is important to link IP creators and investors, because financing is crucial for entrepreneurs. Public platform should be created so that the innovators can approach the potential users, buyers and funding institutions. This object aims to promote free and open source software, provide opportunities of e-commerce and promotes public sector initiatives for IPR commercialisation.
(6) Enforcement and adjudication
The national IP policy aims to adjudicate upon those who infringe the rights of the IP owners. There is a need to identify the piracy and counterfeiting. Multi-disciplinary modules are also required for the other stakeholders. This objective can be ordained by educating the general public on the shortcomings of counterfeited products, establishing IP cells for controlling offences relating to IP, referring the case relating to the IP disputes through commercial courts, set up at appropriate level, creating IP modules for the benefit of Judges, conducting regular IP workshops and promoting alternative dispute resolution.
(7) Human capital development
The purpose is to expand the human resources with the view to build national capacity for providing leadership in the field of IPR. With the implementation of this object, there will be enhancement of multi?disciplinary human and institutional capacity for policy development. Steps such as developing skill development centers, encouraging women innovators, starting distance learning IP courses and collaborating IP training with WIPO and WTO should be taken in order to achieve this objective.
Conclusion
The new IPR policy follows a maximalist agenda without recognising the shortcomings of IP.
The policy in no way shows how it will be able to ensure the socio-cultural development of India. The data shows that if India had opted for early Trips implementation, the market power of foreign firms would have been greater and the people had suffered the drawbacks of the strong intellectual property regime. Furthermore, India supplies a number of pharmaceuticals to the US and Europe market, it is ironic that the policy would give a little more than lip service to India in case of generic pharmaceuticals. The policy focuses on improving the IPR output at various universities, laboratories and other institutions but it does not look at the Council of Scientific and Industrial Research Laboratories which have failed to yield patents that could earn CSIR revenue. As suggested by the national IP policy the connection of universities and institutions with the IP laboratory is next to nil.
The policy considers IP rights as an economic tool whereas it is a regulatory tool for the Government and the Government should not use it as an incentive.[6] The policy should be guided by a contract between the society and State on the basis of its consequences for the development process. Incentive should be awarded only by asking as to which kind of innovation is being offered by particular system of reward. The policy seeks to promote open source drug discovery but it failed to announce an open source licensing which is law-favouring. The policy states that IP education should be given at all schools and universities and proposes awareness programmes but the greatest concern is that awareness on an IP maximalist agenda will destroy the balance between IP and public interest which the courts have tried to maintain.[7] The policy proposes a maximalist approach which will not suffice for India’s socio-economic requirements.
Moreover, the national intellectual property policy was drafted by the FICCI’s IPR coordinator who is the convener of the Committee which was set up to frame policy. The policy is the result of the pressure administered by the US, Europe and Japan based multinationals for bringing a strong and systematic IP system. This policy is more inclined towards US Government and it would not be wrong to call this policy a gift to the US Government as it is framed after facing immense political pressure from the US to only to serve the benefit of pharmaceutical transnational corporations. The benefits to the public that are contained in the policy will be undermined when the policy will be implemented. Therefore, there is a possibility that this policy could cause pressure in the economy rather than minimising it.[8]
*Fourth year student, Dr Ram Manohar Lohia, National Law University, Lucknow.
[1] Dinesh Abrol, Who gains from the Modi Government’s Intellectual Property Rights Policy # (The Wire, 22-5-2016) <http://thewire.in/2016/05/22/who-gains-from-the-modi-governments-intellectual-property-rights-policy-37795/> accessed 31-5-2016.
[2] Government of India, Ministry of Commerce and Industry, Department of Industrial Policy & Promotion, National Intellectual Property Rights Policy, 12-5-2016.
[3] Swaraj Paul Barooah, India’s National IPR Policy approved (Spicy IP, 13-5-2016) <http://spicyip.com/2016/05/indias-national-ipr-policy-approved.html> accessed 9-6-2016.
[4] K.M. Gopakumar, Why New IPR Policy is Inadequate (Vol. 51, Issue 21), <http://www.epw.in/journal/2016/21/commentary/why-new-ipr-policy-inadequate.html> accessed 10-6-2016.
[5] Government of India, Ministry of Commerce and Industry, Department of Industrial Policy & Promotion, National Intellectual Property Rights Policy, 12-5-2016.
[6] Dinesh Abrol, Who gains from the Modi Government’s Intellectual Property Rights Policy # (The Wire, 22-5-2016) <http://thewire.in/2016/05/22/who-gains-from-the-modi-governments-intellectual-property-rights-policy-37795/> accessed 31-5-2016.
[7] Dinesh Abrol, Who gains from the Modi Government’s Intellectual Property Rights Policy (The Wire, 22-5-2016) <http://thewire.in/2016/05/22/who-gains-from-the-modi-governments-intellectual-property-rights-policy-37795/> accessed 31-5-2016.
[8] K.M. Gopakumar, Why New IPR Policy is Inadequate (Vol. 51, Issue 21), <http://www.epw.in/journal/2016/21/commentary/why-new-ipr-policy-inadequate.html> accessed 10-6-2016.
