“While we should seek light from whatever source we can get, we should however guard against being blinded by it.” – JusticeP. Jaganmohan Reddy in Surendra Pal v. Saraswati Arora (1974) 2 SCC 600)
Intellectual Property Rights are territorial rights, aimed at incentivizing innovation by offering monopolistic rights to the inventor for a limited duration in exchange of bringing the invention in the public domain after the expiry of the duration. The poignant aspect for the present topic is that IP rights are territorial rights. Thus, these are rights the State grants to exercise within its boundaries and, more importantly, to incite innovation amongst its citizens and to confer the benefits of such inventions over its subjects. Despite the feature being rudimentary to IP jurisprudence, it is curious to note that any discussion of the Indian IP laws is deliberated and scrutinized in the light of the IP laws of Developed Countries, in particular, the United States of America. Not only do we conceptualize IP laws in India as per the model in USA, we sanctify the grievances of the US lobbyists who have been impressing their demands for stringent IP protection.
It may be argued that India, as a member of TRIPS and other relevant treatises, is bound by its international obligations. USA and other Developed Nations set an example of the purportedly strong IP regime. It is fair to state that the Indian IP laws leave a lot of questions unanswered. However, it would be grossly inaccurate to assert that the Indian IP regime falls contrary to its obligations under TRIPS. As one of the leading IP figures of India, Dr. Shamnad Basheer stated that India has merely exercised the flexibilities warranted under TRIPS and in doing so it has aimed to cater to its national developmental goals. While honoring international commitments is crucial, it is equally incumbent that the State shape the laws with due regards to its developmental priorities. It is towards identification of such policies which could balance the dual disparate concerns that the IPR Think Tank was constituted.
The National IPR Think Tank (NITT) has been shrouded in controversy, right from its constitution. Prior to the inception of the Think Tank, the Department of Industrial Policy and Promotion (DIPP) had constituted a committee of India’s leading figures in IP, namely, Dr. Shamnad Basheer, Yogesh Pai and PrabuddhaGanguli. The committee was invited to identify core principles that would form the basis of the national IPR policy. Upon the submission of a draft, the committee suggested that the draft be made public so as to invite further discussions. However, the Commerce and Industry Minister Nirmala Sitharaman, instead announced the formation of a six member panel to identify policy which captures the spirit of IP stimulated growth in India. The panel headed by Justice PrabhaSridevan, former chairperson of the Intellectual Property Appellate Board and former judge of the Madras High Court, included Prathiba Singh, Senior Advocate; Punita Bhargava, Advocate, Inventure IP; UnnatPandit, Cadila Pharmaceuticals; Rajeev Srinivasan, Director, Asian School of Business; and Narendra Sabharwal, retired DDG, WIPO.
If one were to overlook the discourteous manner in which the invaluable contribution and efforts of the leading scholars of the country was treated, the composition of NITT further raises more concerns than inspiring any confidence. The composition has drawn the ire from most quarters on the grounds that it lacks independent experts with grounding in IPR issues.To a great extent the furore over the constitution of the panel has stemmed from the non-transparent manner of selecting panellists and the allegations of nepotism is the appointment. Surely the NITT mainly comprised figures who are individuals with significant repute and experience. Nonetheless, the obvious omission of the any luminaries from the academic field gives credence to the apprehensions. It has been alleged that while the candidates in the panel accommodate representation of corporate and pharmaceutical industry, it lacks representation of the individuals who are experts in IP or who represent voice of public and social health activists.
The mission of the NITT was aimed to identify IPR policy which enable the IP laws to cater to the national objectives without compromising India’s obligations. If the IP regime of India has to be reworked, it not only requires representation of corporate interests but also inculcation of the counter narrative.
NATIONAL POLICY DRAFT
The panel released the National IPR policy final draft on 18th April, 2015. The panel has laid down the objectives policy under the following heads:
- IP Awareness and Promotion
- Generation of IPRs
- Legal and Legislative Framework
- IP Administration and Management
- Commercialization of IP
- Enforcement and Adjudication
- Human Capital Development
The key findings and conclusions of the panel can be set out as follows:
- Any progress sought to be achieved by virtue of evolution of IP protection would be rendered facile, unless the advantages of IP are recognized by all the strata of the society. The NITT seeks to raise public awareness of IP laws by the use of a National slogan “Creative India, Innovative India”. IPR can be promoted by interlinking existing national development schemes like Make in India, Digital India, etc. Further the policy seeks to encourage permeation of IP monetization amongst the MSMEs, R&D and Science and technology institutes, academic institutions, etc.
- The policy highlighted its vision towards creation of IP awareness and creation of by following suggestions:
- Improving/ introducing the IP curriculum in educational institutions, by working in collaboration with WIPO, WTO and/or other foreign institutions.
- Sensitizing IP related issues by engaging the media.
- Introducing support systems for MSMEs, startups and grass root innovators in order to encourage innovation.
- The policy had proposed a sea of changes in the legislative and administrative framework, such as:
- Addressing the gaps in of laws on trade secrets and suggested recognizing Utility Models
- Formulation of a legislation/sui generis system for protection IP in the form of Traditional Knowledge and inventions from public funded research.
- First time patent fee waiver and reduction to MSMEs
- Providing statutory incentives like tax benefits based on IP creation
- Restructuring, upgrading and granting autonomy to IPOs
- Establishment of an IP Promotion and Development Council (IPPDC), aimed at under taking promotion of IP and undertaking projects to create awareness and utilization of IP.
- Creation of a Multi-Agency Task Force to coordinate between different agencies working towards IP protection.
- Setting up branches of IPAB in five regions Ahmedabad, Bombay, Calcutta, Delhi & Madras.
- Designating specialized patent bench in in the Bombay, Calcutta, Delhi & Madras High Court
- Providing better training for officials at IPOs and consider joining Centralized Access for Search and Examination(CASE) and WIPO Digital Access Services (DAS);
- The policy had identified certain key areas wherein IP protection envisages greater socio-political considerations, a brief of the proposal is as follows:
- Agriculture: NITT has proposed interlinking of interlinking and harmonization of the National IPR policy and institutional policy of Indian Council of Agricultural Research (ICAR). Establishment of Community Seed Banks in different parts of the
- Public Health: The policy states that the proposed Utility Model shall not include pharmaceuticals, biological materials or substances. Recognizing that India’s public health priorities cannot be diluted in lieu of its international commitments, the policy suggests the following:
- Encouraging innovation in institutions, universities and developing new technology platforms.
- Enhancing and encouraging research in public funded research institutes, including open source based research such as Open Source Drug Discovery (OSDD) by the Council of Scientific and Industrial Research (CSIR).
- Reduce reliance on Active Pharmaceutical Ingredients (API) imports.
- Traditional Knowledge: The policy proposes setting up a sui generis system for protection of Traditional Knowledge (TK) and Cultural Expression. Increasing the coverage of Traditional Knowledge Digital Library. Further it has been suggested that efforts should be made to TK is used as a reference point for ‘prior art’ in patent applications.
- With respect to other fields the policy prescribes to undertake:
- Restructuring of Copyright Enforcement Advisory Council (CEAC)
- Online database for copyright owners maintained by IPPDC
- Designation and promotion of certain identified “GI zones”
- Constitution of separate wing for GI at IPPDC
- Formulating of policies offering incentives to domestic technology developers by Telecommunication Standards Development Society, India (TSDSI)
- Incentivising IP creation and acquisition of IP in renewable and clean energy
The said draft National Policy was submitted to the Cabinet for approval and on 13.05.2016 Finance Minister ArunJaitley announced the approval of the Policy. While the Approved National IPR policy has retained the majority of proposals, it has not included most of the administrative suggestions. Few noticeable omissions and changes are as follows:
- The Cabinet has not included the suggestion of recognizing Utility Patent model. In light of the same it is pertinent to observe the recommendations in the Baseline Policy Draft that was proposed by the Committee constituted prior to the NITT. The draft suggests that before determining the legislation for Utility models, it is vital that India undertake a robust cost benefit analysis and ensure that the law would not defeat the benefits accrued under other IP legislations.
- Further, a series of administrative proposals have been overlooked. The Cabinet seeks to setup a Cell for IPR Promotion and Management under the aegis of DIPP, to facilitate promotion, creation and protection of IP. NITT had suggested formation of IPPDC, however, it did not elaborate on the scope of the body. In light of the above the conception of CIPAM has been aimed to undertake management of all IP databases and act as the nodal agency towards deliberating, analyzing and facilitating implementation of best practices with respect to IP. Nevertheless, the policy does not reflect any intention of setting up new or expanding the existing IPAB.The Approved policy has, however, stressed, at multiple occasions, on the recruitment, examinations, training of IP agents and IPO personnels.
- The Approved policy also proposes to undertake examination of Standard Essential Patents (SEPs) on fair, reasonable and non-discriminatory (FRAND) term, an issue which has recently invited a lot of discussions and debates, a point which was missing in the draft proposal.
- The Policy has proposed involving companies by promoting infusion of funds to public funded research institutions as a part of Corporate Social Responsibility.
- However, the policy does not feature any details of the measures to be undertaken to promote IPs like, GI, TK, etc. Even though the Approved Policy has suggested allowing public research institutions to have access to TKDL and even permitting usage by the private sector with safeguards in place.
- The Policy highlights India’s commitment to the Doha Declaration, which effectively indicates that Indian IP protection would not come at the cost of its developmental goals or the need of its citizens. This reflects that India will use the flexibilities under TRIPS to prevent exploitation of IP protection or address national emergency.
- The Policy proposes the engagement of research for policy development with respect to interplay between the forms of IP, IP interface with competition law and protection of Trade Secrets.
Recognizing the significance of encouraging innovation in institutions and amongst MSMEs was a vital inclusion in the policy. If we take a note from the US model, it is worth noting that US universities account for 30 of the top-50 educational institutions in the ranking of highest users of the PCT system with University of California having more publications than several popular companies as well. Furthermore, in the current Indian economy MSMEs contribute nearly 8 percent of the country’s GDP.
While the vision of the policy contemplates advancement and development spurred by intellectual property, a CIS report asserts that the vision would stand defeated by undertaking an IP maximization approach that the policy has proposed. On the same note leading IP scholars of India observed that the policy reflects the intent to promote awareness on the significance of IP protection, strengthening of IP laws and administration, etc., however,the proposal does not reflect a balanced IP policy. With respect to complying with international obligations, the policy should have inculcated the proposal of the submission by the previous Committee which suggested that to the extent it serves to the nation’s developmental goals, India will be guided by the “Principles for Intellectual Property Provisions in Bilateral and Regional Agreements” issued by the Max Planck Institute for Intellectual Property and Competition (MPI).
In terms of Farmers’ rights it is important to note that the laws in place confer on the farmers negative rights, much like other IP rights. Considering factors like the socio-economic status of farmers in India, further the absence of influential domestic competitors and the political recognition of the needs of the farmers only at the times of droughts or elections, it is not unreasonable to suggest that the policy should envisage more affirmative guidelines and interlinking with other government schemes. Having said that the policy does state that plant breeding innovations shall be disseminated and access to innovations and protected technologies will be provided through appropriate mechanisms. Further the policy is silent on several key IP issues that have surfaced with advancement of technology. Protection of inventions in bioproducts, application of patent laws or copyright for software protection, etc. are to name a few.
Major criticisms have been directed at the lack of empirical evidence in substantiating the sweeping statements and proposals suggesting that a strong IP legal framework would encourage innovation or spur invention. While the Policy stresses on IP protection it fails to consider non-IP policies to promote creation and innovation.The Policy does not address the issues faced with respect TK or proposes measures it intends to undertake towards preservation of TK. Considering India has had to oppose several patent applications, patent application on properties of turmeric, being one such instance, protection of TK should have weighed heavily in the policy.
THE NEED FOR A NATIONAL POLICY
The importance of a policy can be seen through judicial decisions rendered by the Indian Courts. In G. Sundarrajan v. Union of India (UOI) and Ors.(2013)6SCC620 the court allowed setting up of nuclear power plant at Kudankulam in State of Tamil Nadu, basing the decision on the reasoning that the Parliament had announced its National Policy through the Atomic Energy Act, 1962 and the setting up of the reactor was in consonance with the policy. On the grounds of implementation of the policy, the Apex Court has held that, unless contrary to the Constitution, courts cannot weigh the wisdom of the legislation or decision of the Government with regard to policy matters. This demonstrates that the national policies are in the nature of guidelines in accordance to which the Government formulates its laws or takes actions at a national level. While policies are also vital in delineating the intent, vision and structure of the relevant laws for representations to the other states and for further development of the law in accordance with the proposed policy.
The need for a National IP Policy is more aptly reflected in the Objective of the draft policy by the previous committee, wherein it states the policy is required to identify common core principles which would enable the nation to negotiate with foreign trading partners and aid the protection and administration and enforcement of current intellectual property norm. Further such a policy will enable India to formulate new norms or amend the existing ones strictly based on empirical evidence. Nevertheless, the present IP policy seems to rely on the word “IP” being synonymous with “innovation”. While it is argued that IP creates incentive to innovate, there is little to no data to substantiate the averment. At best IP can be regarded as a means to an end. Although the policy attempts to represent a balanced approach, yet it is important to note that, the IP monetization approach of the Policy is not the only manner to encourage innovation and India needs to encourage research and innovation at its grass root level before embarking on a protectionist regime. While we have the examples of the several Developed Countries to inspire and direct us, it is important that we mould the laws to accommodate the Indian developmental goals and not be blinded by the light.
Shamnad Basheer, “India and TRIPS Compliance: Protectionist Policies”. Available at http://spicyip.com/2008/01/india-and-trips-compliance.html
Prof. N.S. Gopalakrishnan and T.G.Agitha
State of H.P. and Ors. v. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh(2011)6SCC597