The National Intellectual Property Rights Policy, approved by the government last week, seeks to stimulate creativity and innovation across sectors apart from improving access to healthcare, food security and environmental protection and promoting entrepreneurship in India.
After the Startup India and Make in India initiatives, the government is now trying to promote a ‘Creative India: Innovative India’ credo by fostering an atmosphere where everything that the industry creates is registered, thus curbing the manufacture and sale of counterfeits.
While the new IPR policy is designed to facilitate the ease of doing business, the 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. It has also proposed tax breaks to promote R&D, a loan guarantee scheme to cover risk of failure of IPR creation, and a dedicated cell to promote the creation and commercialisation of IP assets. The policy also makes the department of industrial policy and promotion (DIPP) the nodal agency for regulating IPR in the country.
The policy will allow compulsory licensing 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.
Commerce and industry minister Nirmala Sitharaman is keen to cut waiting period for trademark and patent registrations to a month by 2017, which otherwise take 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.
India claims to have been pressurised by the US to make the IPR norms stricter in order to curb the piracy of music, movies and unlicensed software, which causes losses of $7 billion annually.
In April, the US Trade Representative kept India, China and Russia on its “Priority Watch List” for inadequate improvement in IPR protection. Last year, India ranked 29 out of 30 countries in the International IP Index released by the Global Intellectual Property Center of the US Chamber of Commerce. China was ranked 19 in the same list.
Experts have welcomed the move to make DIPP the nodal agency on IPRs 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.
“Creativity and innovation are rightly the opening words of the National Intellectual Property Rights Policy. This forward looking document seeks to strengthen the Intellectual Property reserve of the country and its seven objectives beautifully balance the need for strong Intellectual Property with value generation through commercialisation as also a strong enforcement drive particularly in relation to digital piracy, human resource development and far greater public awareness and care to protect culture, traditional knowledge and bio-diversity resources of the country,” said Pravin Anand, managing partner, Anand and Anand.
Industry body Ficci also said that the policy correctly identifies IP as a strategic tool for furthering India’s economic goals. IPR lawyer and senior Asian Patent Attorneys’ Association vice-president Amarjit Singh, said that “the focus of the policy is to create a comprehensive IP system and to draw a direct relation with the government’s ‘Make in India’ policy. It provides a framework and a direction in which the innovations in the field of patents, industrial designs, utility models, copyright, traditional knowledge and geographical indications are to be created, protected and enforced. However, remedial legislative steps would be required to be taken for effective implementation of the policy.”
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. Experts also feel that the National IPR policy lacks specifics and won’t be enough to foster innovation.
Former NUJS professor and founder of SpicyIP blog Shamnad Basheer said that while the policy has a number of positives such as expedited examination and the proposal to infuse CSR funds into open innovation, it “unfortunately suffers from a fundamental flaw-its assumption 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. Something we brought to the notice of the government as part of the draft of the first IPR think-tank (of which I was part). Unfortunately, we were unceremoniously disbanded and given the boot without notice to any of us.”
Given this flawed assumption, according to the professor, the policy then advocates that “all knowledge should be converted to 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.
“Another illogical assumption is that our informal economy in rural areas needs a strong dose of IP. But why? We have not even understood this economy and how creativity takes place and how knowledge is shared here. Superimposing a formal IP regime here may do more harm than good! Lastly, 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,” Basheer said.
There is no doubt that much more awareness about the creation, protection and enforcement of IPRs would go a long way to encourage the Indian industry not only to innovate but also to protect and enforce their innovations. “There are still certain areas which would require further deliberations such as the principle of knowledge sharing and knowledge access. The utility models, so far, are not statutorily protected in India and the protection thereof under the policy may encourage the small and medium industry to protect their innovation. At the same time, there is a reasonable apprehension about the enlargement of the protection to the objects which fall in the public domain,” Singh cautions.