National intellectual property policy suffers from a lack of conceptual clarity

The best aspects of the document are contained in the third objective discussing the legal and legislative framework.

Written by Srividhya Ragavan , K. Subramanian | Updated: June 11, 2016 9:40 am

It was a surprise when the Department of Industrial Policy and Promotion (DIPP) of the ministry of commerce and industry released a document on the National Intellectual Property Policy on May 13 seeking to promote “creative and innovative” India. The surprise is that only a few years ago India undertook massive legislative measures to amend the patent, copyright, and trade mark and design acts and no new measures are on the anvil. Further, recent years witnessed wideranging and contentious debates over issues relating to “compulsory licensing” and “ever greening” of patents by foreign drug majors.

Unfortunately, India has continued to be under pressure from the US pharmaceutical lobby and the US Trade Representative with suggestions to tighten IPR laws and regulations beyond India’s international obligations. In response to fears expressed by non-governmental organisations the government of India reassured critics that it would not succumb to foreign pressure in instituting IPR amendments. Unfortunately, the current document on IPR, especially its reframing of the objectives of IPR, seems to send a different message.

Even though the efforts put in by high powered committees to formulate the document are commendable, the basic thrust in it raises more doubts than it seeks to resolve. For instance, it specifies that all “knowledge” should be “transformed into IP assets.” It suggests that national policy should “spread the importance of IP rights” by using “eminent personalities as ambassadors”. Sadly, it betrays an imbalance in the IPR regime that can tilt the balance away from access to important public goods. There is by and large agreement among economists and the scientific community that IPR in itself has limited ability to promote innovation.

The policy further lays undue emphasis on publicly funded research institutions such as those under the Council of Scientific & Industrial Research (CSIR) to generate more property rights through IPR. India needs a clear vision and guidelines on how scientists’ work using public money can be commercialised and covered through IPRs. The policy in its current form fails to take note that an IPR policy has to balance the concerns of all stakeholders in a reasonable manner and may not be seen as an instrument offering absolute protection for products in the market. In the US, a group of Congressmen has exerted pressure on the National Institute of Health (NIH) to ensure drugs developed by federally funded projects are sold at a reasonable price.

The best aspects of the document are contained in the third objective discussing the legal and legislative framework. It reiterates that India will utilise the flexibilities available in international agreements and reaffirms its commitment to the Doha Declaration on Trade-Related Aspects of Intellectual Property Rights agreement and public health. Unfortunately, instead of discussing how the carefully negotiated flexibilities have afforded a strong position to India as “the pharmacist of the poor world”, the document strays into a discussion over protection for traditional knowledge. Merging the debate over traditional knowledge with IPR or TRIPS is incongruous. It is also premature inasmuch as it distracts or even undermines India’s previously well-crafted positions on IPRs. Unfortunately, traditional knowledge is not universally recognised as an IP right yet. Therefore, it is important that it should not be linked to existing IP rights and the fight for protection to traditional knowledge should be clearly separated from the current debates on IPRs.

The need to strengthen the management of IP offices is commendable. But, without a proper cost benefit analysis, the well-intended suggestion loses its relevance. Elsewhere, it suggests that IP disputes should be adjudicated through “commercial courts, set up at the appropriate level.” But the document fails to note the fate of the Intellectual Property Appellate Board, now an orphaned child, which was established under external (read US) pressure. Promoting and creating IP is not an exercise in realigning a few pieces of a puzzle. It requires broader understanding of the competing issues. The policy document is right in its emphasis and the pride it takes in India as a creative hub. A policy that uniquely posits IP as the central fulcrum or the key to innovation lacks a holistic understanding of the complexities attached to science/knowledge generation and how IP laws and norms impact them.

(This article first appeared in the print edition under the headline ‘A Question Of Ownership’)

Ragavan is a professor of Law, Texas A&M University School of Law and Subramanian is a retired finance ministry official

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