Intellectual property: Resist external force

The state governments had previously made attempts to draft their IPR policy to address state-specific needs.

Media reports that the Government of India through its Department of Industrial Policy and Promotion (DIPP), has begun a process to frame an intellectual property (IP) policy for the country. In principle, a clear articulation of the country’s overall IP strategy and its objectives is warranted. Yet, the purpose of the intended exercise, in other words the idea behind this action, has not been made known. Particularly since the policy to be made is preceded by several IP legislations, each of which has very sector-specific objectives. Nonetheless, policy prescriptions must communicate that IP is not simply a trade issue. 

Through any new policy statement on the subject, India ought to give out the message that mature knowledge-based societies do not require narrow, restrictive IP policies and practices. As an emerging global force, as well as a responsible member of the global community, India ought to also amplify the concerns of many other not so powerful countries. For many of them do not have a voice in supra-state institutions, such as the World Trade Organisation (WTO), through which global IP rules are made and enforced. India has an existing National IP Strategy and in the last few years either amended pre-existing laws or passed new ones to be in compliance with international obligations in this area.

The existing IP legislation include the Copyright Act, 1957, the Patent Act, 1970, Trade Marks Act, 1999, all with amendments, the Geographical Indications of Goods Act, 1999, the Designs Act, 2000, the Semiconductor Integrated Circuits Layout-Design Act, 2000 and finally the Protection of Plant Varieties and Farmers’ Rights Act, 2001. Other legislation that deal with some aspect of IP, particularly that of resource-dependent local communities are the Biological Diversity Act, 2002 and the Forest Rights Act, 2006.

What is urgently needed is to ensure that the implementation of these legislation merely not become one of responding to international demands, but ought to address domestic urgencies. Therefore, the proposed policy ought to be both responsive to basic needs (such as food, medicine and education) and be supportive of the local innovations of the people of India. 

Media reports also point to the fact that DIPP has set up a committee to initiate the process for the intended IP policy. The precise terms of reference of the said committee, its members and their tasks need to be made public. The government has already taken such an approach whilst commencing the review process of all the environmental legislation in the country. 

The issue of IP is not only crosscutting, but also has multiple dimensions beyond that of industrial policy. Since it is not a single policy area, the process of IP policy-making necessitates gathering inputs and analysis from various sectors, such as agriculture, education and health. Therefore, it is necessary that the process be opened up for other departments beyond just bring under the DIPP as IP is a public policy matter and not simply one of industrial policy. 

But equally importantly, the discussion needs to be with and about the public. Ordinary citizens too need to have the space to participate in this process. Moreover, in a federal polity, state governments too need to have the opportunity to give their inputs. States such as Kerala have previously made attempts to draft their IPR policy to address state-specific needs. The experiences and challenges faced by different states on the IP front must be brought into and addressed in this exercise.

US-India ties

During the prime minister’s visit to the USA, the US-India joint statement was signed between the two sides. According to it, India agreed on the need to foster innovation in a manner that promotes economic growth and job creation…committed to establish an annual high-level IP Working Group with appropriate decision-making and technical-level meetings as part of the Trade Policy Forum. 

The DIPP‘s own press release of October 3, 2014 mentions the operation of the Trade Policy Forum between USA and India since 2010. Therein, an Innovation and Creativity Focus Group pre-dates the formation of the new joint IP Working Group. Bilateral talks at the political and diplomatic levels are needed to ward off any unilateral action by the US administration. But firstly, the government must be aware that USA and its trade negotiators are notorious for demanding ‘WTO-plus’ IP provisions in bilateral negotiations. 

Secondly, there is no justification to grant the newly announced joint Working Group with decision-making power. In fact, that in itself can said to be an ingression of sovereign policy space. No bilateral arrangement should be allowed to pre-empt any domestic democratic decision-making on any aspect of IP. The powers of this Working Group cannot be over and above the Constitutional schema of India. 

If at all, there should be a national working group on IP and its various dimensions. A parliamentary standing committee ought to keep constant vigil on the issue. Until these are fully operationalised, the Centre must stand strongly against any external pressure particularly of unilateral nature as by USA. India’s IP Policy must be made in, for and by India.

(The writer is a legal researcher and policy analyst)