What is it? The government has brought out a National Intellectual Property Rights (IPR) policy to promote the IP regime and to encourage creativity, innovation and entrepreneurship in India and to check theft of one person’s innovation by another. This is India’s first IPR policy.
Some basic concepts about IP:
What is a patent?
A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application What is a trademark? A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks are protected by intellectual property rights.
What is a geographical indication?
A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place. In addition, the qualities, characteristics or reputation of the product should be essentially due to the place of origin. Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production. What is copyright? Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.
What is a Trade Secret?
Broadly speaking, any confidential business information which provides an enterprise a competitive edge may be considered a trade secret. Trade secrets encompass manufacturing or industrial secrets and commercial secrets. The unauthorized use of such information by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. Depending on the legal system, the protection of trade secrets forms part of the general concept of protection against unfair competition or is based on specific provisions or case law on the protection of confidential information. What is an industrial design? In a legal sense, an industrial design constitutes the ornamental or aesthetic aspect of an article. An industrial design may consist of three dimensional features, such as the shape of an article, or two dimensional features, such as patterns, lines or color.
About the Policy:
Generating the perception of Creative India, innovative India Vision Statement:
- An India where creativity and innovation are stimulated by Intellectual Property for the benefit of all;
- An India where intellectual property promotes advancement in science and technology, arts and culture, traditional knowledge and biodiversity resources;
- An India where knowledge is the main driver of development, and knowledge owned is transformed into knowledge shared.
- Stimulate a dynamic, vibrant and balanced intellectual property rights system in India to: foster creativity and innovation and thereby, promote entrepreneurship and enhance socio-economic and cultural development, and
- focus on enhancing access to healthcare, food security and environmental protection, among other sectors of vital social, economic and technological importance.
- There are seven Major objectives:
- IPR, awareness, outreach, and promotion
- Create an atmosphere of inventibility and innovation
- Replace existing outdated laws
- Human Capital Development for teaching, research and skill building in IPRs
- Administration and management of innovation
- Commercialization of IPRs
- Combating IPR infringements by reinforcing the enforcement and adjudicatory mechanisms
The policy seeks to put in place a legal framework that will encourage the IPR regime and reduce the time taken by the government to approve a trademark to a month by 2017. Currently, the process takes more than a year Existing Framework:
- India’s present IPR regime is in sync with WTO’s agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
Need for an IPR Policy:
- An IPR policy is important for the government to formulate incentives in the form of tax concessions to encourage research and development (R&D).
- The policy comes in the backdrop of the US Trade Representative (USTR), in its annual (2016 edition) Special 301 Report (on the Global State of IPR Protection and Enforcement) retaining India on the ‘Priority Watch List’ this year .
- It did so for the “lack of sufficient measurable improvements to its IPR framework.”
- Though the U.S. concerns include the “rejections” of patent applications for innovative pharmaceutical products due to “unpredictable” application of Section 3(d) of the (Indian) Patents Act, the policy ensures that no changes are made in that Section (which prevents ever-greening of drug patents) and the patent-disabling Compulsory Licensing( CL) regime.
- It is essential to maintain the sanctity of innovations to ensure that the litigations in this domain are minimised.
- It will provide the required thrust to protect the traditional knowledge of India.
- It is also critical to strengthen the Make In India, Startup and Digital India schemes.
SALIENT FEATURES: Main highlights of the IPR Policy are:
- The Policy aims to realise IPR’s as a marketable financial asset, promote innovation and entrepreneurship, while protecting public interest.
- The plan will be reviewed every five years in consultation with stakeholders.
- In order to have strong and effective IPR laws, steps would be taken — including review of existing IP laws — to update and improve them or to remove anomalies and inconsistencies.
- The policy is entirely compliant with the WTO’s agreement on TRIPS.
- Special thrust on awareness generation and effective enforcement of IPRs, besides encouragement of IP commercialization through various incentives.
- India will engage constructively in the negotiation of international treaties and agreements in consultation with stakeholders.
- The government will examine accession to some multilateral treaties which are in India’s interest, and become a signatory to those treaties which India has de facto implemented to enable it to participate in their decision making process.
- It suggests making the Department of Industrial Policy and Promotion (DIPP) the nodal agency for all IPR issues. Copyrights related issues will also come under DIPP’s ambit from that of Ministry of Human Resource Development (MHRD).
- Modernization of trademark offices has been undertaken to reduce the time taken for examination and registration to just a month by 2017.
- Films, music, industrial drawings will be all covered by copyright.
- The Policy also seeks to facilitate domestic IPR filings, for the entire value chain from IPR generation to commercialization.
- It aims to promote research and development through tax benefits.
- Proposal to create an effective loan guarantee scheme to encourage start-ups.
- The policy allows the Government of India to leverage legislative flexibilities in the international treaties and TRIPS agreement. These flexibilities include the sovereign right of countries to use provisions such as Section 3(d) and compulsory licensing( CLs) 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.
- On compulsory licensing (CL), India has issued only CL for a cancer drug.
- The government will examine accession to some multilateral treaties which are in India’s interest; and, become signatory to those treaties which India has de facto implemented to enable it to participate in their decision making process. The international treaties and agreements referred to are international IP classification agreements, including the Nice and Vienna Classifications, and not pacts like the Trans Pacific Partnership, which apparently has TRIPS-plus provisions.
Advantages of the Proposed IPR policy regime:
- The National IPR Policy is a vision document that aims to create synergies between all forms of intellectual property, concerned statutes and agencies.
- It will likely bring India’s IP regime in line with global standards and help improve its ranking in the World Bank’s Ease of Doing Business index.
- Experts feel that, policy correctly identifies IP as a strategic tool for furthering India’s economic goals.
- The policy ensures credibility with potential investors and strategic partners encourages them to invest in India.
- It will also help substantially cut the time taken on clearing the backlog of intellectual property rights (IPR) applications from the current five to seven years to 18 months by March 2018
- It focuses on enhancing access to healthcare, food security, environmental protection and prevents film and music piracy. For Ex, Indian Cinematography Act, 1952 may be amended to provide for penal provisions for illegal duplication of films.
- 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.
- The policy seeks to promote R&D through tax benefits available under various laws and simplification of procedures for availing of direct and indirect tax benefits.
- Increasing awareness about IPR will help in building an atmosphere where creativity and innovation are encouraged, leading to generation of protectable IP that can be commercialized.
- Bringing the Copyright Act and the Semiconductor Integrated Circuits Layout-Design Act under the Department of Industrial Policy and Promotion (DIPP) would benefit industry and individuals.
- Commercial importance (of IPRs) will be better affected when it is under one roof due to better administrative covergence
- The IPR policy aim is to create awareness about economic, social and cultural benefits of IPRs among all sections of society.
- To ensure strong and effective IPR laws, the Policy states that, India will engage constructively in the negotiation of international treaties and agreements in consultation with stakeholders.
- Supporting the idea of clean and green technology from developed countries is a good step
- Hence this policy is more comprehensive and tries to bring an ecosystem for protecting the intellectual properties of India.
- The IPR Policy states “India shall remain committed to the (World Trade Organization’s) Doha Declaration on (WTO’s) Trade Related IPR Agreement (TRIPS) and Public Health”. There was, however, a bit of apprehension that mention of Doha Declaration and flexibility would mean there would be attempts to find loopholes in TRIPS in order to favour pharmaceutical companies.
- Unless the government is ready with funding and programmes to ensure access to medicine for all, any change in the legislative frame work would hurt not only the generic industry, but the people of India.
- Though the policy is more vocal on the promotion of modern IP, its silence on the issue of traditional knowledge and the informal creativity/innovations based on it are significant.
- There is no evidence to show that the modern utility model and trade secret laws are useful to promote informal innovations.
- No serious efforts, however, are made to find out the actual need of IP in promoting creativity/innovations in both formal and informal sectors. The cursory importance to traditional knowledge and need for sui generis law for its protection without any details were clear indications.
- IPR Policy, which gave a strong message of supporting the Centre’s Make in India Campaign, failed to address the question of whether a strong IP in itself was sufficient enough to attract foreign direct investment. The message is to strengthen IP system in India so that it’s a good market for foreign IP holders to exploit their IP and get maximum benefit out of it.
- The measures suggested in the policy envisaged large government funding for protecting and promoting foreign IP in India even though it stated that the primary obligation of protecting IP rights was on the IP owners. Moreover, the reference to State legislations in the context of copyright protection showed how the balance in the policy was tilted in favour of IP holders against society.
- Experts also feel that the National IPR policy lacks specifics and won’t be enough to foster innovation.
- Experts feel, the fundamental flaw is 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.
- Given this flawed assumption, according to the experts, 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.
- Experts are also skeptic of the policy being applicable to the informal economy in rural areas.The reason is that, rural economy and creativity is not understood completely. 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.
- In the knowledge driven era, it is imperative to create an intellectual property strategy. The 21st Century belongs to entrepreneurs – driven by Creativity and Innovation, which need to be protected and channelized for better use in future.
- The policy takes a nuanced position on IPR issues and states that policy formulation is not intended to have the force of law but merely serve as the guiding principles in the administration and enforcement of IP norms.
- IPR policy will lay the future roadmap for intellectual property in India. It recognizes the abundance of creative and innovative energies that flow in India and the need to tap into and channelize these energies towards a better and bright future for all.
- India’s first IPR policy comes at a time when developed economies are trying to put in place even stronger IPR frameworks through mega-regional trade agreements.
- Lots of steps for Start-Ups had been recommended in the policy. The copyright subject matter has been shifted, which will help achieve objective of utilitarian industries like software, telecom and many more.
Way Forward and Conclusion:
- 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.
- Better copyright and trademark regime, as promised by the new framework, along with stronger enforcement, would attract more foreign investment into the country.
- The approach of the policy towards copyrights and trademarks appears to serve well the needs of foreign companies. Granting rights faster, and a strong enforcement, are also something that will encourage them.
- But a lot depends upon the way the government implements the policy. If the balance is lost we will discourage innovating companies. One great thing in the policy is the way it has addressed digital piracy,indicating stricter steps for addressing the issue.
Keywords: IPR, Patents,copyrights,Industrial design,GI,Trade secret,IPR awareness,Make in India, Digital India Approach to Civil Services Exam:
- Impact of Expensive essential drugs on society
- Geographical Indication and its cultural impact on that region
- Policies of the government to take positive steps for the welfare of people(life saving drugs)
- Intellectual property rights and their impact on economy
- WTO and Special 301 list and related issues
- Trade facilitation agreement
- Ethics in international relations in the context of IP rights
- Do you agree with the view that the proposed National IPR policy would succeed in creating an ecosystem for IP rights protection? Critically examine.