Mains Marathon

• Briefly define Intellectual Property Rights and write the National IPR Policy 2016.
• Mention the issues in India’s IPR regime.
• Suggest some measures.
• Conclude suitably.

Answer:

Intellectual property rights (IPR) are the rights given to persons over the creations of their minds: inventions, literary and artistic works, and symbols, names and images used in commerce. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. These rights are outlined in Article 27 of the Universal Declaration of Human Rights. The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Both treaties are administered by the World Intellectual Property Organization (WIPO).

National Intellectual Property Rights (IPR) Policy:

• The National Intellectual Property Rights (IPR) Policy 2016 was adopted in May 2016 as a vision document to guide future development of IPRs in the country.
• Its clarion call is “Creative India; Innovative India”.
• It encompasses and brings to a single platform all IPRs, taking into account all inter-linkages and thus aims to create and exploit synergies between all forms of intellectual property (IP), concerned statutes and agencies.
• It sets in place an institutional mechanism for implementation, monitoring and review. It aims to incorporate and adapt global best practices to the Indian scenario.
• Department of Industrial Policy & Promotion (DIPP), Ministry of Commerce, Government of India, has been appointed as the nodal department to coordinate, guide and oversee the implementation and future development of IPRs in India.
• The ‘Cell for IPR Promotion & Management (CIPAM)’, set up under the aegis of DIPP, is to be the single point of reference for implementation of the objectives of the National IPR Policy.
• India’s IPR regime is in compliance with the WTO's agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Objectives:

• IPR Awareness: Outreach and Promotion.
• Generation of IPRs: To stimulate the generation of IPRs.
• Legal and Legislative Framework: To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest.
• Administration and Management: To modernize and strengthen service-oriented IPR administration.
• Commercialization of IPRs: Get value for IPRs through commercialization.
• Enforcement and Adjudication: To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
• Human Capital Development: To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.

Issues in India’s IPR regime:

• Section 3(d) of the Indian Patent Act 1970 (as amended in 2005) does not allow patent to be granted to inventions involving new forms of a known substance unless it differs significantly in properties with regard to efficacy.
• This means that the Indian Patent Act does not allow evergreening of patents.
  • This has been a cause of concern to the pharmaceutical companies. Section 3(d) was instrumental in the Indian Patent Office (IPO) rejecting the patent for Novartis’ drug Glivec (imatinib mesylate).
• Issue of Compulsory licencing (CL): CL is problematic for foreign investors who bring technology as they are concerned about the misuse of CL to replicate their products. It has been impacting India-EU FTA negotiations.
  • CL is the grant of permission by the government to entities to use, manufacture, import or sell a patented invention without the patent-owner’s consent. Patents Act in India deals with CL.
  • CL is permitted under the WTO’s TRIPS (IPR) Agreement provided conditions such as ‘national emergencies, other circumstances of extreme urgency and anti-competitive practices’ are fulfilled.
• India continues to remain on the United States Trade Representative's (USTR’s) ‘Priority Watch List’ for alleged violations of intellectual property rights (IPR).
  • In its latest Special 301 report released by the United States Trade Representative (USTR), the US termed India as “one of the world’s most challenging major economies" with respect to protection and enforcement of IP.
• Data Exclusivity: Foreign investors and MNCs allege that Indian law does not protect against unfair commercial use of test data or other data submitted to the government during the application for market approval of pharmaceutical or agro-chemical products. For this they demand a Data Exclusivity law.
• Enforcement of the Copyright act is weak, and piracy of copyrighted materials is widespread.

Way Forward

• A proper resolution mechanism for resolving IPR related issues is needed.
• India will be unable to take full advantage of the transformative benefits of a strong IP system unless and until it addresses gaps in its IP laws and regulations.
• Success of India’s flagship programmes - Make in India and Start up India - depends on the boost of innovation ecosystem with better IPR safeguarding.
• More awareness is needed about the creation, protection and enforcement of IPRs to encourage the Indian industry not only to innovate but also to protect and enforce their innovations.

Government’s effort to strengthen National IPR policy, IP appellate tribunal, e-governance and commitment to abide by the TRIPS agreement of WTO in letter and spirit will help in improving perception of India globally. An efficient and equitable intellectual property system can help all countries to realize intellectual property’s potential as a catalyst for economic development and social & cultural well-being.