NEW NATIONAL IPR POLICY 2016

This article was written by Akanksha, a student of Amity Law School, Delhi.

The Union Cabinet on May 12, 2016 approved the National Intellectual Property Rights (IPR) Policy that will lay the future roadmap for the intellectual property in India. All the member states of WTO are under the obligation to form their own intellectual property right policy and laws which comply with the WTO’s agreement on TRIPS.

TRIPS

The agreement on trade related aspects of intellectual property rights (TRIPS) is an international agreement which has been administered by World Trade Organization(WTO) which lays down minimum standards for any kind of intellectual property regulation as applied to other WTO nations. It was negotiated in 1994 when the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) culminated. The members of the WTO are required  to provide copyright rights, covering content producers including performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; new plant varieties; trademarks; trade dress; and undisclosed or confidential information. Along with this it specifies the enforcement and the dispute resolution procedures and the remedies as well.

Introduction to the policy

The national ipr policy is a vision document that aims to create and exploit synergies between all forms of intellectual property (IP). It aims to sustain entrepreneurship and boost Prime Minister Narendra Modi’s pet scheme ‘Make in India. This policy shall weave in the strengths of the government, research and development organizations, educational institutions, corporate entities including MSMEs, start-ups and other stakeholders in the creation of an innovation-conducive environment, which stimulates creativity and innovation across sectors, as also facilitates a stable, transparent and service-oriented IPR administration in the country.. This policy reiterates India’s commitment to the to the Doha development agenda and the trips agreement.

The new policy has been implemented with the following 7 objectives:

1. Ipr awareness: to make all the sections of the society aware about the social, cultural and economic  benefits of IPRs.
2. To stimulate generationfor IPRs.
3. Legal and legislative framework: to make the IPR related laws effective so that it balances out the rights owner’s interest with the interest of the general public at large.
4. Administration and management: to modernise and strengthen service oriented IPR administration.
5. Commercialisation of the IPRs: get the value of IPR through their commercialisation.
6. Enforcement and adjudication: to prevent the IPR infringement, strengthen the enforcement and adjudication mechanism.
7. Human capital development: to strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.

Key highlights of the policy

• The policy aims to push IPR as a marketable financial asset, promote innovation and entrepreneurship while protecting the public interest.
• The plan will be reviewed every 5 year with consultation of the stakeholders.
• Special thrust on awareness generation and effective enforcement of IPRs, besides encouragement of IP commercialisation through various incentives.
• India will engage constructively in the negotiation of the international treaties and agreement in the consultation with the stakeholders. The government will examine accession to some multilateral treaties which are in India;’s interest.
• It suggests in making the department of industrial policy and promotion (DIPP) the nodal agency for all ipr issues.
• Reducing the time taken on clearing the backlog of IPR applications from current 5 to 7 years to 18 months by March 2018.
• Trademark offices have been modernised, and the aim is to reduce the time taken for examination and registration to just 1 month by 2017. The government has already hired around 100 new  examiners for trademark.
• Examination time for the trademark has been reduced from 13 months to 8 months, with the new target being to bring the time down to one month by March 2017.
• Films, music, industrial drawings will all be covered by copyright.
• Proposal to create an effective loan guarantee scheme to encourage start-ups.
• The policy also seeks to facilitate domestic IPR filings, for the entire value chain from the IPR generation to commercialisation. It aims to promote research and development through tax benefits.
• India will continue to utilize the legislative space and flexibilities availablein international treaties and the TRIPS Agreement. These flexibilities include the sovereign right of countries to use provisions such as section 3(d) andCLs for ensuring the availability of essential and life saving drugs at affordable prices..
• The policy left the country’s patent laws intact and specifically did not open up section 3(d) of the patents act, which sets the standard for what is considered an invention in India, for reinterpretation.
• The ipr policy favoured the government considering financial support for a limited period on sale and export of products based on IPRs generated from public funded research.

Criticism and analysis of the new policy

Analysis

One of the major allegations is that government has released this policy under pressure of US and lobbying groups in that country.

As previously mentioned, the Trips agreement provides a framework on how the IP rights have to be protected, particularly of companies that invest huge amounts in inventions and creation of patents. Within the TRIPS agreement, some flexibilities were included in favour of public interest for developing / least developed countries. However, this is a major issue for companies engaged in pharma because they wanted strict IPR laws in the countries where they sell their products. Using such flexibilities, India made two special provisions in its domestic law viz. compulsory license and Section 3(d) in patent law.

• The compulsory license enabled grant of compulsory license for export of medicines to countries which have insufficient or no manufacturing capacity. This was done to keep India’s generic drug exports to Africa and other countries alive and competitive.
• The Section 3(d) of Indian Patents Act puts caveat on some inventions which are not patentable (sets a novelty standard for patents).

 Both of these provisions have been controversial because they directly harm the interests of pharma MNCs and TNCs. Meanwhile, due to these laws, the MNCs found whatever method deployed for protection of their IPR useless. They intensified lobbying with USTR {United States Trade Representative} to categorize India as a “preferred” foreign country in the Special 301 report that carried with it the threat of trade sanctions. These pressures led creation of a high level working group to discuss the IP issues {between US and India}. Thus, for the first time, India agreed to engage bilaterally with US on IPR issues. Since the government was also in the process of creation of new IPR, it got attention of US and US industry.

To what extent, Government has succumbed to the pressures?

IPR policy has tried to be a balancing act overall. Firstly, the policy has not tried to dismantle or bypass the Section 3(d) of Indian Patent Act 1970 which says that marginal alterations don’t entitle new patent. The policy makes it loud and clear that India will not go beyond what is needed to be TRIPS-compliant; and it will use flexibilities to address its developmental concerns. Secondly, the policy has kept Compulsory License intact with restrictions in case of a public health emergency such as in case of a public health emergency such as epidemics.This implies that government has not compromised on two major issues.

What do the critics say about this policy?

 Acknowledging some of the positives of the new IPR policy such as expedited examination, an open IP exchange, and the infusion of CSR funds into open innovation, the critics say that this policy unduly skews in favour of a reductionist and one-dimensional IP/innovation frame. Most of these criticisms are rhetoric only.

Criticism :

• The government’s IPR policy seems to lack a holistic understanding of the complexities attached with “traditional” knowledge (to be free and open for public access)
• Unfortunately for the policy, a myopic rationale captures the ambition of the document. The policy document states that, “The rationale… lies in the need to create awareness about the importance of IPRs as a marketable financial asset and economic tool.” As such, the policy fails to recognize the philosophy of welfare and balance embedded in IPRs: to ensure innovation, social, scientific and cultural progress and furtherance of access to knowledge. In all fairness, while the document pays a salutary tribute to objectives such as “achieve economic growth and socio-cultural development, while protecting public interest; also of advancing science and technology, arts and culture, traditional knowledge and biodiversity, transforming knowledge-owned into knowledge shared,” it never rises above its treatment of IPR as a tool to solely serve the interests of rights.
• Despite the long and extensive drafting process, the policy is tilted in favour of right-holders, and places undue reliance on IPRs to stimulate innovation and growth. It obviously claims otherwise, but there are some fundamental flaws in the policy’s premise which render the DIPP’s claims meaningless.

It is no secret that the intellectual property of foreign corporation has gained from the changes made to India’s IP laws after joining the WTO and that the size of Indian IP is small. By adopting the same path new IPR policy seems failing to frame a strong IP-based policy framework which is essential for promoting creativity and innovation in India.a