May 22, 2016

Oppose the National Intellectual Property Rights Policy

Dinesh Abrol

THE cabinet has approved the national IPRs policy on May 12 2016. It is India’s ‘first of its kind” policy which covers all the forms of intellectual property and follows a common set of principles to govern the rights of intellectual property owners without bothering to pursue the concerns of development. In the recent past, India has been under pressure from the US government under Section 301. India has been asked to strengthen the intellectual property regime beyond TRIPS Agreement to which India reluctantly acceded to in order to be member of the World Trade Organisation (WTO). India has seen much pressure from the US to meet the new demands of multinationals. The ministry of commerce officials are talking of pressure on the government from the US government for signing the Trans pacific partnership (TPP) which has several TRIPS plus provisions. The timing of this policy is extremely significant. The timing of the announcement is significant. Prime Minister Modi is visiting this year for the fourth time United States on June 7-8. Modi is expected to address the US Congress.

The policy will govern the Patents Act, Trade Marks Act, Design Act, Geographical Indications of Goods Act, Copyright Act, Protection of Plant Varieties and Farmers’ Rights Act, Semiconductor Integrated Circuits Layout Design Act and Biological Diversity Act. The US multinationals will profit in a big way. The Indian people can expect the rise of new barriers to indigenous development of technological and industrial capabilities in a wide range of goods and services in the near future. The IPRs policy will bring in many more adverse impacts on account of the rise of foreign monopolies. The Indian people will be effected with regard to affordable access to medicines, food and environmental protection related goods and services. As the users of intellectual property the IPRs policy will hit the Indian farmers and industry hard. The future of sectors such as pharmaceuticals, software, electronics and communications, seeds, environmental goods, renewable energy, agricultural and health biotechnology and many other unknown uses of new and emerging technologies has been put at stake by the Modi government. The people of India will experience many more problems in respect of meeting the challenges of health, food security, environmental protection, energy, information and communication.

The policy agenda of IP maximalists will be driving now the decision making of industry, publicly funded research and development organisations, educational institutions, government departments, courts and judges. In the national intellectual property rights (IPRs) policy, the rights of intellectual property (IP) owners are maximised at the cost of public interest. Even while the policy admits that the intellectual property of foreign corporations has gained from the changes made under pressure by the Indian government in 1995, paradoxically still the policy approach chooses to provide for foreign monopolies in the name of promoting innovation and creativity without adducing even an iota of evidence in favour of the assumption that a strong IP based policy framework will help promote creativity/innovation in India or that it will ensure the socio-cultural developments of India. Contrary evidence is stronger, and it is gaining influence among the policy makers of Europe, United States. Already in developed countries the failure of strong IP system in promoting creativity/innovation has led to the emergence of movements like “open source”, “creative commons” “open source innovation in drug” etc. The premise that a strong IP system will promote creativity/innovation is itself questionable.

The vision statement and the mission statement of the policy proclaim that creativity and innovation are stimulated by intellectual property for the benefit of all. Entrepreneurship and socio-economic and cultural development and access to healthcare, food security and environmental protection will be enhanced by a strong IPRs system. Contrary evidence available indicates how the Green revolution took place in India without any IP protection for the breeders of new varieties of seeds. The Indian pharmaceutical industry became the pharmacy of the Third World without the adoption of strong intellectual property rights (IPRs) system. Since the domestic pharmaceutical industry supplies a large number of pharmaceuticals to the regulated markets of US and Europe and is the lifeline for the people of US and Europe for medicines in a large number of therapeutic groups it is paradoxical that the policymakers of the Modi government choose to ignore all of this and have agreed to create a policy which will come in the way of development, creativity and innovation. 

The policy considers IP rights as private rights, marketable financial asset and economic tool. Intellectual property is a regulatory tool. Its objectives and instruments need to be guided by a social contract to be arrived between state and society on the basis of the consequences of intellectual property regime for the development process. The Indian State cannot offer monopoly rights to the corporates. As a regulatory tool, the State has to ask how and what benefits will the corporates deliver and what kind of costs it entails to the Indian people. Social bargain should allow to innovate or reward or incentivise innovation but not without asking what kind of innovation and access to innovation is being offered by the IP owners. Incentive has to be as per the stage of development and be commensurate with the quality of intellectual property. Intellectual property has to maximise disclosure, diffusion and dissemination, access to knowledge, and public interest. The policy defines vaguely the balance in IP as the rights of IP owners to be implemented in a manner conducive to social and economic welfare and to prevent misuse or abuse of IP rights.

The policy provides for the enhancement of the capacity of IP enforcement agencies at various levels, including strengthening of IPR cells in State police forces. It proposes to adjudicate IP disputes through commercial courts. The policy is pro-IP owners and against the interests of Indian people. The policy makes a major departure from the earlier well stated understanding by Bakshi Tekchand and Justice Iyengar committees that earlier guided the framing of Indian patent law. The policy gives in writing that the government will engage constructively in the negotiation of international treaties and agreements. In so many words it also states that it will examine accession to some multilateral treaties which are in India's interest. Is it a signal that India can be a party to Trans-pacific partnership (TPP) where the TRIPS plus agenda is already in place? Like the usual style of Modi government, the policy seeks respect for IP and wants this message to be taken to the schools, colleges and public. It wants to involve the multinational corporations in the IP awareness programmes. The policy proposes to strengthen and spread IPR facilitation centers. The policy proposes to open up the traditional knowledge digital library to the corporates.

The policy proposes to focus on improving IPR output of national research laboratories, universities, technology institutions and other researchers by encouraging and facilitating the acquisition of intellectual property rights.  The policy proposes to encourage researchers in public funded academic and R&D institutions in IPR creation by linking it with research funding and career progression. The policy proposes to include IP creation as a key performance metric for public funded R&D institutions as well as technology institutions. Although it is clear that the policy suggests the harnessing of intellectual property by public institutions to be undertaken in a big way (through, for example, the patenting or licensing of research results); and, second, the partnering of public institutions with the private sector, but it chooses to ask the obvious question that what has been the outcome of the perusal of such a policy in the laboratories of the Council of Scientific and Industrial Research (CSIR) and the Indian Council of Agricultural Research (ICAR).

Since the middle of 1990s the CSIR researchers were directed to file patents but the policy failed to yield patents that could earn CSIR revenue. It costed the CSIR not just money and did not earn revenue but also directed CSIR away from more important directions. In order to generate IP that can be commercialised the laboratories were required to do planning of the patent portfolios without which enforceable IP will not get generated. It is not enough to celebrate the intellectual property of individual researchers. The corporates treat the challenge of IP generation in a strategic way. They spend money on patent litigation. Does India want the laboratories to focus on science or litigation? Further it should not be forgotten that if the publicly funded laboratories are being encouraged to patent their research contributions, seek exclusionary rights and make money from the private sector from their research contribution the tax payers will be paying twice because the private sector will include all the costs and like to make profit out of public IP. The policy proposes to establish and strengthen IP facilitation centres as nodal points in industrial and innovation university clusters. Evidence on the performance of S&T parks is not very encouraging with regard to IP based entrepreneurship from India.

Experience of success with IP based entrepreneurship and technology transfer from National Research and Development Corporation (NRDC), National Innovation Foundation (NIF) and Technology and Information Forecasting and Assessment Council (TIFAC), SIBRI and BIRAC of Department of Biotechnology is hardly again encouraging to repeat the same mantra. Further although the policy speaks of encouraging open source drug discovery (OSDD) but we know that the OSDD programme is not being pursued by the CSIR. The policy could have given a boost to the idea of open source in the areas of software, seeds and creative publishing if the government was willing to announce a public procurement policy in order to encourage open source in software and seeds. The policy should have announced to bring a law favouring open source licensing. Special licenses for non-exclusive dissemination of intellectual property could have been encouraged. Twenty five countries including Australia, Belgium, Croatia, Czech Republic, France, Germany, Greece, Hungary and Italy and more countries provide for legislative support to open source.  

The policy speaks of India will remain committed to the Doha Declaration on TRIPS Agreement and Public Health. But it cannot be put aside that the government of India agreed to give in to the US government’s twenty first century issues of trade and investment in Nairobi ministerial. According to USTR the Doha Development Agenda is dead. There has been no progress. Needless to say, the IP maximalism agenda of the new IPR policy will certainly gladden the heart of the US government. Modi needed to give a gift to the US on his visit to the US and it is the IPR policy. Finally the courts and judges will go by the IP maximalist agenda and implement the law and decide the cases on the basis of this policy. This is going to be a big change. The national IPR policy needs to be opposed from becoming the national policy.