The Union Cabinet on May 13 approved the long pending and much controversial National Intellectual Property Rights (IPR) Policy that will lay the future roadmap for intellectual property in India. The policy is in compliance with World Trade Organization’s agreement on TRIPS (Trade Related aspects of Intellectual Property Rights) and aims to sustain entrepreneurship and boost Prime Minister’s pet scheme “Make in India”. This week the story aims to bring about discussion on the policy, its underlying framework and the arguments on its sustainability.
What are Intellectual Property Rights?
Intellectual property is any concept/idea/plan/suggestion of human intellect that should be afforded the same protective rights that apply to physical property. The IPR includes trademarks, copyright, patents, industrial design rights and other trade secrets.
According to the government, the National IPR Policy is “a vision document that aims to create and exploit synergies between all forms of intellectual property (IP), concerned statutes and agencies”. It sets in place an institutional mechanism for implementation, monitoring and review of IPR’s.
The Policy involves seven objectives which the policy lays emphasis on include stimulation of generation of IPRs, strengthening the legal and legislative framework, IPR commercialisation and reinforcing the enforcement and adjudicatory mechanisms to combat infringements.
Impact on Pharma Sector
The global drug brands led by US companies have been pushing for changes to India’s intellectual property rules for long. They have often complained about India’s price controls and market restrictions in drugs sector. Moreover last month, the US Trade Representative kept India along with China and Russia on its “Priority Watch List” for inadequate improvement in IPR protection and for lack of sufficient measurable improvements to its IPR framework. “The policy will allow compulsory licensing(CL) in case of public health emergency such as epidemics and is compliant with the WTO guidelines”, finance minister Arun Jaitley said, even as India’s strained patent protection and IP administration has failed to keep pace with growing technological advances. Under the Indian Patents Act, a CL can be issued for a drug if the medicine is deemed unaffordable, among other conditions, and the government grants permission to qualified generic drug makers to manufacture it. India has only issued CL for a cancer drug.
The policy, however, has so far failed to cheer the Indian pharma sector. “Unless the government is ready with funding and programmes to ensure access to medicine for all, any change in the legislative framework will hurt not only the generic industry, but the people of India,” DG Shah of Indian Pharmaceuticals Alliance said.
Make In India & MSME Sector
While the new IPR policy is designed to facilitate the ease of doing business, the seven objectives which the policy lays emphasis on as well as includes-:
- Tax breaks to promote R&D
- Loan guarantee scheme to cover risk of failure of IPR creation
- Dedicated cell to promote the creation and commercialisation of IP assets.
The policy also makes the “Department of industrial policy and promotion (DIPP)” as the nodal agency for regulating IPR in the country. Experts have welcomed the move to make DIPP the nodal agency on IPR’s as this single umbrella approach will help leverage linkages between various IP offices. Besides, they feel that the IPR policy recognises the need to balance the IP regime as a tool to attain economic advancement and to encourage innovation.
FICCI said that “the policy correctly identifies IP as a strategic tool for furthering India’s economic goals”. Commerce and Industry minister Nirmala Sitharaman said that “government is keen to cut waiting period for trademark and patent registrations to a month by 2017, which otherwise takes more than a year”. As on February 1, the total number of patent applications and trademark registrations pending are 2, 37,029 and 5, 44,171, respectively.
Is something Inappropriate.??
When the IPR policy is praised for its total framework and other positives, the questions also remain. Former NUJS professor and founder of SpicyIP blog Shamnad Basheer said that the policy, “unfortunately suffers from a fundamental flaw by assuming that more IP translates to more innovation! It fails to appreciate that IP is not an end in itself but a mere means to an end. It is but one tool in our tool kit for spurring innovation and creativity”. Given this flawed assumption, according to Basheer, the policy then advocates that “all knowledge should be converted into IP! Even corporates today recognise that IP does not work well in certain technology sectors, for which a free flow of open knowledge is more suitable. Why then are we taking this regressive step of urging that all knowledge be protected through IP and even forcing our public funded scientists at R&D institutes to do so?” he asks.
The questions are raised on the decision of criminalising wrongs arising out of violation of the Indian Cinematographic Act is too harsh and disproportionate and uncalled for. IP wrongs are essentially civil wrongs and should not be criminalised. Also, some people fear that policy will deliver returns at public cost. “The IPR policy is driven by the agenda of IP maximalism, where IP owner’s rights will be maximised at the cost of public interest. This (policy) will influence courts and judge,” said Dinesh Abrol, convenor of the National Working Group on Patent Laws and WTO, a civil society group.
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