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India-US IP working groups insufficient for USTR – Continuing with unilateral OCR as well


Zemanta Related Posts ThumbnailAccording to the US Federal Register, it appears the US Trade Representative will proceed with an Out of Cycle Review (OCR) for India to unilaterally ‘grade’ India’s IPR regime as they had announced earlier this year. This throws up two quick points that need mentioning/repeating:

1. The USTR Special 301 annual process is a degrading political pressure mechanism with no credibility. 

The above link states: “… in order to assess progress on engagement with the Government of India on intellectual property rights (IPR) issues, an Out-of-Cycle Review (OCR) would be conducted for India. USTR requests written submissions from the public concerning information, views, acts, policies, or practices relevant to evaluating the Government of India’s engagement on IPR issues of concern…”

As we, and countless others have already written over the years, the USTR Special 301 process’ regular annual report  has already come under so much criticism for being fraudulent, manipulative, and probably also without any legal basis – it is completely ridiculous to see Out of Cycle Reviews (which are held in between annual reviews) also being conducted. This OCR is being conducted to see if the new Modi government is more friendly towards US’ IP policies or not. The not so subtle underlying threat is that if the OCR is not satisfactory, India will find itself on the Priority Foreign Country watchlist in the next review – which gives US more leeway to pressure India regarding IP policies that don’t favour US multinational corporations.

2. It becomes more clear what India-US joint IP working group will be used for. 

That brings me to my next point – a few weeks ago, the Prime Minister just signed a statement that India and US would create a new IP working group (IPWG) under a Trade Policy Forum. I agree with what Thomas had written then – that this in itself is a cause for worry. It’s also to be noted that this new IPWG, comes despite such a body already being in existence since 2010 ( – does this mean another body will now be created? That is my reading of it – I’m open to correction).

When the USTR thinks it fit to have a completely unnecessary unilateral OCR despite TWO such bodies already existing, it becomes clear what the agenda of a US partnered “Trade Policy Forum will have US ‘working with’ (i.e., pressuring) India on. I for one am sure that these nonsensical unilateral reports (Special 301, GIPC, International Piracy watchlist, etc – click on the reports to see our critique of them), will be thrown around as ‘proof’ that India needs to mend its IP regime.

While I’m still personally unsure of which way the new Modi government will take for India’s IP policies, some say that there is already sufficient cause for worry. Whatever it is, we should be finding out in the next few months.

For those who are interested in sending in comments to the USTR regarding its OCR, it opens for comments tomorrow, October 14th, and closes on October 31st. Other details are available here. The USTR will also be conducting OCRs for Kuwait and Paraguay.

On a related note: Though unlikely to ever happen, I would be very glad to see a peer-review mechanism of these reports – and the compulsory disclosure of these peer-review scores before throwing their results around as useful ones.

H/T: Though I can’t read Malayalam myself, this call for OCR comments was brought to my attention by a discussion on the article linked below, following which some googling brought me the Federal Register notice. For those who can read it, this is the triggering article.

Swaraj Paul Barooah

Swaraj Paul Barooah

Follow @swarajpb Swaraj has a deep interest in IP, Innovation and Information policy, especially when they involve issues relating to Access to Knowledge, Innovation incentive mechanisms, Digital Freedoms, Open Access, Education, Health and Development. After his BA, LLB (hons) from Nalsar Univ of Law, Hyderabad, he went on to do his LLM from UC Berkeley in 2010. He is now pursuing his J.S.D. degree from UC Berkeley where he is focusing on Drug Innovation Policy and Access to Medicines. Aside from SpicyIP, he is also engaged as a consultant on various IP matters, and is a visiting faculty member at Nalsar Univ of Law. He is also in the process of starting up a New Delhi based "IP, Innovation & Information Policy" focused think-tank.

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