In the second week of this month, the government announced the National Intellectual Property Rights (IPR) Policy with seven broad objectives. None of the objectives is new, however, emphasis on them through a national policy, hopefully, will help in achieving them speedily. For a long time – almost 20 years, since the signing of TRIPs (Trade Related Intellectual Property Rights Treaty) in 1995 – India has been confidently moving in the direction of stronger IPR regime in the country. Despite changes in the law to align with TRIPs and major administrative changes in the registration and other related activities of different branches of IPR, India, unfortunately, has been at the receiving end in the international fora very often.

A peep into the seven objectives and how the country has been marching ahead will make things clear that India has been doing its best, but at times there are confusing situations which lead to non-clarity of the basic purpose. With more than 5,000-year-old civilisation, Indians fundamentally believed in ‘sharing’ and thus the concept of intellectual property is alien.

There are very strong and widely networked roots of traditional knowledge which expand organically without any intention by anyone to arrest the expansion, which is supposed to be beneficial to all. Hence, there were no methods developed not to share knowledge. Also, there were no mechanisms created to penalize anyone for sharing or using any such knowledge. On the contrary, there were conscious efforts to popularise and share such knowledge through folk tales, dance, drama, stories, music and sculptures.

The fundamental questions have still not been answered: do we really want to protect intellectual property, and if yes, what is the purpose? Will better protection stimulate creativity?

The seven major objectives are: awareness, generation, legal and legislative framework, administration and management, commercialisation, enforcement and adjudication and human capital development.

Do we really want to fall into the intellectual property trap? In the United States, one of the countries with a very strong intellectual property regime, of late, there has been serious debate about the usefulness of too much patent protection which has been hampering innovation, according to some keen observers. Patent trolls are keeping several researchers away from numerous innovative and globally useful inventions. Some companies are willing to forego the small advantages of the patent protection as compared to the long-term benefits to the human race. Tesla, the electric car company, is one of them.

Patents and pharmaceuticals have never been able to go together well in developing countries like India and even the newly declared policy doesn’t help the cause of multinational pharmaceutical companies as status quo has been maintained regarding interpretation of the law, specially the much talked about section 3(d) of the Patents Act, 1970.

In copyrights, there have been very strong movements regarding keeping things available for public by waiving copyright protection as in some software and internet matters. Freely available software has been very popular. Similarly, certain studios and producers don’t insist on copyright protection for their work as they truly believe that piracy makes their work popular.

Trademarks are, however, on a different plane. Companies have been very aggressive in their protection. The question is, can the enforcement and adjudication be improved in India perceptibly? The entire policy depends on successful, speedy and effective enforcement and adjudication. The other objectives like human capital development and legislative framework are inter-related and other objectives will help in making the IPR regime stronger. However, the inner confrontation about non-clarity of purpose – do we really want strong IPR regime – is still tearing apart the enforcement and adjudication at the highest level. On one hand, we wish to strengthen the IPR protection, but on the other we give preference to fundamental human rights to access affordable medicines – I agree fully with it – leaving us in a very difficult situation. One can’t blow hot and cold at the same time. New policy or no new policy, using the flexibility within the TRIPs is the best way to go ahead.

 

First published in "Other Views" in DNA newspaper