The mind is a work of great mystery. Even our own creations baffle us. Sometimes through progressive stages we find the ability to finish what we started, whereas on most occasions, we are left stumped. This so-called ‘dead end’ has been a source of great remorse for entrepreneurs who have desperately tried reaching out to the complexities of the IP system we were living in, just in the recent past. As the new Intellectual Property Law Policy dawns into what may become the most promising year for the existing Indian IP regime, budding entrepreneurs have a lot to look forward to. In my view, this has been the most significant development with the advent of the new policy, most recently released by the Department of Industrial Policy and Promotion (DIPP). With the combined partnership of Governmental assistance and innovative thinking, technological development may reach milestones, that could only be dreamt of by think -tanks and IP academicians until only a few months back.
A seven-fold objective forms the backdrop to the entrant of this policy. A gist will allow layman and IP enthusiasts alike to understand the need for incorporation of new perspectives in the running IP regime. ‘Outreach’ and ‘Awareness’ are the two main components of the first objective enumerated. In March 2013, TERI had released a paper on issues and challenges that geographical indications faced in India. Strong focus on the unawareness of the Muga silk weavers of their rights as the creator or the rising unemployment among the Banarasi weavers due to the advent of cheap imitation saris, has made the IP community realise, how weak the system is in its implementation. A foolproof administrative set-up therefore will allow IP users and creators to realise value benefits that have been dutifully accorded to them. This will be most effective at the rural level, where such programmes will be mostly directed.
“Creative India, Innovative India” is the slogan capturing the gist of the second objective mentioned in the policy. While R&D will be promoted through varied steps targeting the different sectors of the economy, what will be a striking feature this time is the commitment made to reduce the period for Trademark registration to one month. In effect, this will attract more number of IPs to be protected in the eyes of law, giving value based benefits to their creators. Not just that, a proper division of royalties among the organizations and innovators as well as the researchers and public funded universities will be supported to encourage them further. Perhaps this strategy will benefit students and budding entrepreneurs greatly, who have a heap of talent infused within them waiting to explode.
The third objective includes the delicate task of balancing the interests of right owners with the larger public interest by adapting certain provisions more akin to the Indian environment. On a cursory reading of section 2(e) of the Geographical Indications Act 1999, one may realise the shortcoming of the act in failing to protect services within its ambit. For instance ayurvedic services generate revenue in the billions and stands as a major attractor to tourism itself however it is not protected as an invaluable asset primarily known to the indigenous population of our country, mainly Kerala. An amendment to the existing legislative framework in this direction will go a long way in securing rights and interests of people belonging to the ayurvedic industry, with adopted modifications allowing easy access of these services to the public.
The remaining objectives with the exception of the fifth, can be clubbed together because the basic aim of these are the same i.e., to ensure that IP thrives in an environment which is well –equipped to assist maximum human capital development. Not much can be said on this point, as any set-up requires steps to be taken at this level. What will make or break it, is the promises kept and deadlines met. The proposal includes the establishment of new institutions as well as revamping of the old ones. A thorough review of existing offices alongside necessary training of officers will be an important step to allow the structural set-up to adapt to changing international circumstances.
Through this policy, for the investors’, users’, interest-holders’ benefit, it is important that the ‘e-world’ becomes the hub for generating awareness, and to seek advice on matters concerning these parties so that they gain access to these essential facilities from the point of their location. For people situated at the grass root level, IP awareness centres must be built within manoeuvrable distance. It is also essential that competition not be affected at the risk of abuse of IP rights by monopolies. Therefore strong enforcement of regulations has been reiterated to seal loopholes that disrupt the smooth functioning of the adjudication system. Alongside that, IPR infringements must be adjudicated upon within a time period so as to prevent further losses to the right holder. All these steps will reinstate the faith of the people in the system and will also attract foreign parties to invest in an efficient regime.
The fifth objective is a commendable attempt to encourage entrepreneurs to invent including those are financially ill-equipped to attract the right market and thereby benefit from the commercialization of their IPRs. The government has enumerated upon a plan to eradicate such factors that discourage small technology firms or individual players. A common database will be created to establish a meeting place for the sellers and the buyers. This will ensure that certain branches of IPR like geographical indications attracts a global audience and makes known the rich traditional knowledge permeating the Indian cultural system.
In the furtherance of the DOHA Agreement, it has been reiterated that common access to drugs will not be vitiated. This is necessary especially during periods of epidemic, which happened quite when we were facing widespread cases of chicken flu. That is perhaps one of the best outcomes of the policy. However Biswajit Dhar, Professor of Economics from JNU believes that there should be a clear articulation of what is in store for the generic industry, which seems to be missing from the policy. He feels that the language of the policy shows that Americans are putting a lot of pressure on the government.
The policy may have its ups and downs and may have also tried avoiding certain contentious issues such as section 3(d) of the Patents Act, 1970. However I think it would be wrong to expect this policy to clear all ambiguities when the TRIPS has given liberty to each member country to adapt what suits their respective domestic environments. And that involves changing dynamics, which in the view of a strait jacket policy, could prove detrimental to India’s interests. As Finance Minister Arun Jaitley, said in a press conference, “We believe that our existing laws, they are all WTO compliant, and as and when global trends move forward, a continuous evolution of these laws will always be required.” to which D.G. Shah, secretary general, Indian Pharmaceutical Alliance, stated that “The word ‘evolution’ is matter of concern because it has moved in one direction only…..”; it will be for time to say whether this policy truly emerges victorious in the IP industry.
By: Shreya Talukdar