Dr S Saraswathi
The Government of India has announced that it will soon unveil the country’s first Intellectual Property Rights (IPR) policy. The move is obviously in response to the concerns frequently expressed by the US and EU countries over inadequacy of the Indian Patent Act.
The annual review of the global state of IPR protection and enforcement – Special 301 Report brought out by the US, the major IPR interest holder, has put India under a “priority watch list country”. It seems clearly a threat to downgrade India’s IP environment. Some American companies, particularly in the pharmaceutical sector, are unhappy with Indian laws whereas India has been resisting attempts at infringement of copyright and commercial misuse of its indigenous knowledge. India opposes the unilateral action favoured by the US, and maintains that the country’s position is in conformity with the requirements of Trade Related Aspects of Intellectual Property Rights commonly known as TRIPS.
During Prime Minister Narendra Modi’s recent visit to the US, leaders of both countries agreed to constitute a high-level Working Group with deciding authority and also technical groups as part of the Trade Policy Forum. There is also some urgency to clarify the IPR policy of the Government so to encourage FDI needed in some sectors.
The Commerce and Industry Ministry too has constituted a think-tank to draft the policy to advise the Government on the most suitable practices to be adopted in the IPR. The policy, it is said, will also provide for a system of efficient and transparent functioning of offices dealing with IPR. Whatever anomalies found in present legislations are likely to be removed.This panel will examine the demands made by foreign trade partners and their implications to domestic trade and industries and give periodic reports. It will keep track of IPR related developments in other countries that may impact India’s interests and will collaborate with associations of Indian industries – the stakeholders.
The object evidently seems to create an IPR regime that will protect domestic interests as well as promote foreign investments and trade. Commerce and Industry MoS is reported to have said that an overarching IPR policy is necessary to have “a legitimate fight with countries that raise questions on the country’s IPR regime” adding that India “is very strong in IPR and we certainly want to protect our interest”. This assertion may be an answer to critics who may read in the sudden haste for IPR policy an opening for FDI rather than protection for Indian products.
BJP’s 2014 election manifesto has promised to “embark on the path of IPRs and patents in a big way”. A national network of specialized institutions to encourage inventions with protection of intellectual property and courts to settle disputes were promised.
The main object of an IPR policy in any country is to promote research and inventions and their utilization in practice. It is a strategy to guarantee ownership for innovations and prevent theft of intellectual output.
Several nations have adopted policies and strategies in this regard. Beijing, for instance, adopted a National Intellectual Property Strategy in 2008 for improving its capacity to create, utilize, protect, and administer IP to make China an innovative and prosperous country. The Czechs introduced the National Innovation Strategy in 2004 to “improve entrepreneurial and investment environment”. Ghana adopted a National IP Policy and Strategy Document to strengthen management of IP system so as to bring it in line with TRIPS.
The European Commission constituted the Innovating Regions in Europe Network to “facilitate exchange of experience and good practice”. Hungary has a clear IP policy. Malaysia has announced its policy in 2007; and Japan has made progress in evolving a policy and connecting knowledge and development. The UK has formulated a Science and Innovation Strategy in 2001. The US is the pioneer with its IPR Center to facilitate sharing of information and development initiatives. India’s present initiative to frame a policy has many precedents in other countries.
Intellectual properties covered under TRIPS are of various types – patents, copyrights, trade marks, industrial designs, new plant varieties, bio-tech inventions, lay-out designs of integrated circuits, geographical locations, trade secrets, etc.
Developing countries are generally IP importers and users more than exporters. They argue that TRIPS puts them at a disadvantage and forces them to adopt an IP system that is disadvantageous in their stage of scientific and technological development. A common IPR standard has been found problematical ever since the introduction of TRIPS in 1994. The situation has not altered much.
IP is an intangible asset and its policies and practices differ between countries. But IP protection is necessary to protect one’s inventions, brands, and methods in domestic and international market. As technology has advanced in many ways, instantaneous copying is possible. Extremely easy methods of duplicating products have developed. Victims of IPR violations at home and abroad have to be protected by law and its implementation.
We are living in the century of knowledge and information. Our ability to acquire and use these intangible assets to convert them as wealth and goods depends on our ability to safeguard our knowledge. Globalization has enhanced the importance of protecting IPR.
Small and Medium Enterprises (SMEs) receive facilities and encouragement from the Government as a policy. They need IP knowledge to remain within their rights and IP protection to safeguard their rights. For the growth of Indian economy, SMEs have to survive against big enterprises in the highly competitive business world. Unfortunately, in India as in many developing countries, many of them are not well-informed about the IP system and its utility and significance. The policy now under preparation has to address this problem.
Similarly, medium and small-level story writers and novelists, and musicians often face theft of their unprotected creations. Lessons in IPR, therefore, become necessary to prevent offences and protect victims. Many suggest including teaching of IPR in schools as part of curriculum and conducting awareness campaigns for stakeholders, authors/creators and users, and enforcement agencies. Creativity and inventions are indispensable capital in the present world along with land, labour and monetary capital emphasized by the conventional economists. They have to be protected against infringements and rewarded in the interest of growth and development.
India has a Copyright Act, Trade Marks Act, Geographical Indications of Goods Act, Designs Act, Patent Act, Semi-Conductor Integrated Circuits Layout Designs Act. Still, there is scope for international disputes as Indian concept of knowledge and its sharing is different from western concept which tries to rule the world.
Wherever a whole community is the owner of particular traditional knowledge, individual-centric inventor concept of western societies is not applicable. Traditional knowledge of medicine and cure belongs to a community and is passed on from generation to generation and is not fully documented. Oral tradition is still strong in India. As a result, a resourceful foreign company may get a patent for a common cure known to people in general as inventor because of laxity and indifference of concerned people to prevent illegal exodus of knowledge.
The World Intellectual Property Organization (WIPO) has acknowledged the strength of orally transmitted knowledge source in developing countries. But controversies arise on several issues. Therefore, in the policy now being drafted, IPR education should find place in general education so that the general public – at least the educated sections – become IPR conscious. The owner of intellectual property must be aware of his/her rights and the way to safeguard the right. —INFA
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