India's new intellectual property policy: A bare act?

In Hans Christian Anderson’s classic, The Emperors’ new clothes, a vain emperor is promised the finest of robes by two treacherous tailors. They con the emperor and his courtiers into believing that the material is so fine that it can barely be seen; in any case, they cunningly caution that those unfit for office would never be able to see it.

After being paid handsomely, these creative crooks come up with absolutely nothing! But convince the emperor to strut around stark naked, believing that he’d been vested with finest of robes!

A Barmecidal feast of sorts for the eyes! While all of the adult kingdom and the royal retinue play along (for who would wish to be labeled as unfit for office), a little child yells out: but the emperor is naked!

One couldn’t have found a more fitting frame for India’s new intellectual property (IP) policy. After two years, two ‘think tanks’ and a splurging of hard earned tax-payer money, all we have is a rather pompous sounding policy; one that is long on seductive slogans and short on substance.  And therein lies the genius of this document: soporific statements on ‘missions’, ‘visions’ and what not; and yet when one digs deeper, one finds nothing more than a mouth of multitudinous platitudes! 

Had this policy been benign, it would have been okay to confine it to the bin, where it belongs. Unfortunately it contains ridiculous assertions that merit rebuttal. The entire edifice of the present IP policy is built on a highly tenuous claim that more IP means more innovation.

Bollywood flick

This ill conceived assumption results in a number of problematic assertions such as the exhortation that all publicly funded scientists and professors compulsorily convert all of their discoveries into IP assets, much before they have even written this up and published it in reputed science journals. And that the mere reproduction of a Bollywood flick in a theatre would result in criminal prosecution and punishment!

Interestingly, the policy speaks about creating ‘respect’ for intellectual property. Why respect? Given that intellectual property has had a chequered history (with many viewing it as an inequitable tool of economic exploitation), respect is hardly the appropriate term. More so when IP is not an end in itself but a mere means to an end, namely creativity and innovation. Sometimes more IP serves that end, and sometimes less is more! Unfortunately, the policy takes a very formalistic and reductionist view of IP and fails to situate it within the larger innovation context.

The policy suffers from extremely shoddy drafting and research, as evident from the following:

n Open innovation is mentioned in a section titled ‘IP generation’.
n The policy speaks of the need for commercial IP courts, when just a couple of months prior to the unleashing of the policy, this very same government had steered a commercial courts legislation to success. Further the policy speaks about housing all of the IP agencies within DIPP, when again, this was done a month prior to the release of this present policy. The  government should at least have been up to date when formulating the policy.

n The policy appears misdirected when it exhorts MNCs to have IP policies. MNCs already have this, and there is no reason why the government should go out of its way to promote this with them. It’s the small and medium enterprises and individual inventors that are the issue and need all the help they can to access a regime that is terribly expensive and unduly complex.

To be fair, the policy does have some commendable recommendations. Unfortunately, however, there are no indications on how these laudable proposals will be translated, for the challenge will always be in the devilish details.

Illustratively, the policy speaks of expedited examination and yet falls short on how exactly it plans to effectuate it. It then recommends the institution of an IP exchange, but again does not bother to detail out or offer suggestions for how it will crafted, particularly since there are IP exchanges around and one might think that a private exchange will operate more efficiently than a government administered one. Lastly, it contains a promising proposal to encourage Corporate Social Responsibility funds into open innovation. This will however depend on corporate largesse and interest.

The government needs to go back and revisit the rationale for this enormous IP adventure that it undertook.

What is the point of this policy? In Carol Bacchi’s frame: What exactly is the problem represented to be? Or put another way, what’s the real problem that this policy is seeking to address? Unless one has clarity on the rationale of this policy, one is handicapped in terms of assessing the real worth or unworthy of this policy.

The policy states: “The rationale for the National IPR Policy lies in the need to create awareness about the importance of intellectual property rights (IPRs) as a marketable financial asset and economic tool.” If this be so, then it is a fairly limited mandate and one does not need to formulate an extensive IP policy for this. A mere strategy document to create more awareness would have sufficed. In fact, some years ago, the government did come up with an IPR strategy document. It is not clear as to whether this policy document was also meant to be a strategy document.

Further confusion arises from the fact that the policy also speaks about ‘drug regulation’, when this is hardly an IP issue. And a conflation of these two issues has created a number of issues pertaining to spurious drugs at the WHO. India should be careful of not falling into that treacherous trap.

In the end, one must remember that this policy does not have the force of law and means nothing, unless actively translated.

Till then, it is, in the Bard’s memorable language, nothing more than mere sound and fury, signifying nothing!

The big picture

The policy speaks of the need for commercial IP courts, when just a couple of months prior to the unleashing of the policy, this very same government had steered a commercial courts legislation to success.

The policy appears misdirected when it exhorts MNCs to have IP policies. MNCs already have this, and there is no reason why the government should go out of its way to promote this with them.

It speaks of expedited examination and yet falls short on how exactly it plans to effectuate it. It then recommends the institution of an IP exchange, but again does not bother to detail out or offer suggestions for how it will crafted, particularly since there are IP exchanges around and one might think that a private exchange will operate more efficiently than a government administered one

(The author is Founder of SpicyIP and a Visiting Professor of Law at the National Law University, Bangalore)