By Seemantani Sharma
Annually, breezy months of April and May in Washington D.C lead to soaring temperatures, in an already scorching New Delhi. This is attributable to a paper tiger instrument called the Special 301 Report (the Report) prepared by the Office of the United States Trade Representative (USTR). It is a public indictment of countries whose intellectual property framework is an impediment to international trade for US corporations. Basically, countries which befall the USA’s norms of intellectual property.
A Sketchy Relationship
The Report and India epitomises a consistently patchy relationship since its commencement in 1989. Barring the years 1991, 1992, and 1993, India has always been classified as a Priority Watch List country mandating USTR’s urgent attention, just falling short of trade sanctions.
Those countries, whose intellectual property laws are particularly egregious, are classified as Priority Foreign countries. These are the ones that are capable of attracting possible retaliation action in the form of trade sanctions.
The introduction of the New Economic Policy in 1991 coincided with India being designated as a Priority Foreign country for the first time. This makes 2016 a particularly noteworthy year in the US-India IPR relations. It marks India’s silver jubilee for consistently being listed in the Report in the post-liberalisation, privatisation and globalisation (LPG) era.
Further, the unveiling of the National IPR Policy, just a month after the release of the 2016 Special 301 Report, could be determinative in ushering a new era in the US-India bilateralism. An affirmative action was undertaken by the National IPR Policy to improve India’s IPR framework. Will it resolve the long-standing discord between New Delhi and Washington on the issue of intellectual property rights? While this is for posterity to reveal, a preliminary assessment of the prevailing sentiment in Washington D.C. is one of cautionary pessimism.
National IPR Policy
The National IPR Policy has gained much traction transgressing national borders. Nationally, it has received scathing criticism for appeasing US corporate interests divorced from the socio-economic stage of India’s development. However, internationally, it has garnered mixed reactions, with the US sentiment being one of dismay.
Washington has lauded the National IPR Policy for its recognition of the importance of intellectual property in innovation and creativity. However, reservations regarding the lack of specificity and the absence of a roadmap to implement the Policy have been expressed.
As Washington builds up its reaction to the National IPR Policy, sectoral grievances have also been voiced by the trade groups. The most vocal groups are from the pharmaceutical and the software industry. They also have the backing of the largest corporate lobby in the US. The platitudinous trumpet of an unpredictable compulsory license regime, non-conformity of patentability criteria to TRIPS, and an absence of trade secret and regulatory test data protection is being played once again.
A ‘Joint’ Statement?
Prime Minister Modi’s recent visit to the US was a stalemate of sorts as far as intellectual property is concerned. The Joint Statement made by the head of the two States is a tenuous progress from PM Modi’s last visit, despite the promulgation of the National IPR Policy. The Joint Statement called for an enhanced engagement between the two countries under the auspices of the High Level Working Group. It, therefore, serves as a prudent prophecy for the announcement of an Out of Cycle Review (OCR) by the USTR, despite the USTR maintaining silence on that front. An OCR is an additional review mechanism of a country’s IPR laws conducted by the USTR.
Given the timing of PM Modi’s visit to the US, just weeks after the release of the National IPR Policy, makes the primary purpose of his visit a little-known secret. This makes the deafening silence on the National IPR Policy in the Joint Declaration bewildering. However, what went on behind closed doors, as a mark of diplomatic camaraderie, is a different issue altogether.
The Step Forward
For the National IPR Policy to be a harbinger of change in US-India bilateralism, its strategic implementation would be the keystone. Affixing accountability for its implementation and involvement of the divergent US stakeholder community in the legislative process being subtleties, Washington would expect New Delhi’s deference. However, any involvement of the US stakeholder community in the legislative process would be anathematic to India’s sovereignty.
In an era of multilateralism, does India want to dilute its sovereignty for the sake of bilateral ties with the US on the issue of intellectual property rights?
Until the announcement of this year’s OCR by the USTR, nothing can be said in stone whether the National IPR Policy would cement ties between the two countries or not. This is for posterity to reveal, with the coming few months being critical.
Seemantani Sharma is an Indian qualified Intellectual Property Lawyer based out of Kuala Lumpur, Malaysia. Currently, she works as the Legal and Intellectual Property Services Officer at the Asia – Pacific Broadcasting Union (ABU).
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