By Seemantani Sharma
In the recently released 2017 Special 301 Report, the United States Trade Representative’s (USTR) rhetoric on India’s IP regime continued despite the release of the National IPR (Intellectual Property Rights) Policy in May 2016. The policy was thought to bridge the long-standing discord between New Delhi and Washington D.C. on the issue of intellectual property rights. However, the report once again places India on the Priority Watch List. It cites the reason that Modi’s reformist agenda was outpaced by the much-required policy reforms that cater to high-level calls for fostering innovation and creativity.
What does the report assert?
The report is a twin tale of firsts—it is the first Special 301 Report of the Trump administration and the first one post India’s National IPR Policy. Trump administration’s protectionist stance vis-à-vis US corporate interests makes its way right at the outset of the report where it states, “One of the top trade priorities for the Trump Administration is to use all possible sources of leverage to encourage other countries to open their markets to U.S. exports of goods and services, and provide adequate and effective protection and enforcement of U.S. intellectual property (IP) rights.”
While the report does laud India’s policy on IP rights as being a stepping stone towards the improvement of India’s IP regime, it reinforces an overtly self – protectionist stance. It condemns India for its failure to take into account certain proposals made by the US on legal and policy issues with regard to the Indian IP regime. The policy, though not perfect, does keep India’s sovereignty intact by not appeasing solely to the US trade interests.
Issues surrounding India’s IP regime
As far as a substantive evaluation of India’s IP regime is concerned, the USTR plays the platitudinous trumpet of Section 3(d) of the Indian Patent Act and the localisation requirement that apparently disfavours the US pharmaceutical industry. It is because of these provisions, which are fully compliant with the TRIPS agreement, that India got the moniker of the pharmacy of the developing world. As a matter of fact, many countries such as Philippines, Brazil and South Africa have modelled their patent law on the Indian law for promoting access to affordable drugs.
Other patent related grievances pertain to the highly contested guidelines for Computer-Related Inventions (the CRI Guidelines) which allegedly restrict the patentability of such inventions. These guidelines have put a blanket ban on the patenting of computer-related inventions unless a novel hardware is also invented. These guidelines have received considerable flak even from the Indian industry. Recently, ASSOCHAM, an apex trade association in India, appealed to Prime Minister Narendra Modi proposing suitable amendments to these guidelines. Therefore, it is perhaps only a matter of time that these guidelines shall be amended to meet the demands of the Indian industry and the USTR.
On the copyright front, grievances relate to the high incidence of piracy and counterfeiting over the absence of anti – camcording legislation, non-accession to the WIPO Internet Treaties and overly broad exceptions and limitations under the Indian Copyright Act, 1957. Even though the report denounces the high levels of piracy and counterfeiting, it does commend the state level enforcement measures undertaken by state authorities such as the Telangana IP Crime Unit (TIPCU).
Is accession to Treaties an answer?
India’s non-accession to World Intellectual Property Organisation’s Internet Treaties merits special attention. The Indian Copyright Act, 1957 was amended in 2012 to comply with the Treaties even though strangely it never ratified them. Speculation suggests it is only recently when the Copyright Office was shifted from the Ministry of Human Resources & Development (HRD) to the Department of Industrial Policy and Promotion (DIPP), that the Indian Government took this issue seriously.
The DIPP is plausibly studying the implications of acceding to the treaties and if it does decide positively, India would be spared of the needless ignominy by the USTR and the International Intellectual Property Index (the Index) released by the Global Intellectual Property Law Center (GIPC) – which has since 2012 lashed out at India for not ratifying to the Treaties. DIPP’s pro-activeness in IP policy making has also been appreciated under the report. The Department has been lauded for the swift pace of administrative reforms undertaken in the patent, trademark and copyright sphere.
The Report’s naming and shaming of countries, which is based on a subjective rather an objective analysis of a country’s IP regime has got it the epithet of “a public law devoted to the service of private corporate interests”. Due to this unilateral, biased approach of the Report, no deference should be paid to it by the Indian Government.
Seemantani Sharma is an Intellectual Property Lawyer at the Asia-Pacific Broadcasting Union.
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