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The Draft IP Policy that’s MIA, & more on the Think Tank


This post will (1) 7346532290_16fb74354d_brelease the draft National IPR Policy that had been submitted by the (earlier formed) three-member committee; (2) discuss how it has been arbitrarily side-lined by the DIPP; and (3) take a look at some of the questions being directed towards the newly constituted IPR Think Tank. New readers may also want to check my background post here – National IPR Think Tank – Whats Going On?

 

I. The Draft IP Policy that was assigned and then ignored 

As I mentioned in my post yesterday, prior to the formation of the National IPR Think Tank (NITT hereon), the Department of Industrial Policy and Promotion (DIPP), via a letter on 24th July, 2014 had called upon three IPR experts, Dr Prabuddh Ganguly, Prof Shamnad Basheer, and Shri Yogesh Pai, to formulate the National IPR Policy. You can view this letter here. After some meetings, this committee proceeded to draft and submit what I think is a very holistic and well thought out baseline draft of the National IPR policy.

The draft document spells out its core objectives over two headings:

1. Common Core Principles: Innovation/creativity, Commercialization, FDI and Tech Transfer, Enforcement, Public Interest / User Rights, International Norm Setting.

2. Specific Focus AreasInformal Innovation and Inclusive IP, IP Administration, IP linkages and Inter-Agency Coordination, Tradition (and misappropriation), Data Driven Policy making, Transparency, Accountability and Efficiency, Recalibrating Current Regimes, IP Dispute Resolution, Education/Romanticisation of IP, Specific IP policies, Public Funded Innovation/IP, Broadening Stakeholder Representation, and Balanced IP Enforcement.

The draft, meant to serve as a guide for IP administration and enforcement, stresses on what I am terming as a ‘holistic and scientific approach’ to IP policy in the country, focusing on IP’s purpose in society, rather than viewing it as an end in itself. I say this because, as per my reading, it seeks to (1) learn from but not ape other regimes, recognizing differences and specific needs in the local context; (2) recognize and address situations where earlier formed norms may not be best suited for fast changing times and technologies; (3) place IP in context of the goal of innovation and access by optimizing its relationship with alternative norms or means to the same ends; and most importantly,(4) make policy changes based primarily, if not only, on data collection and analysis. It was also great to see that the letter asked that the IP Policy not only focus on pharmaceuticals but also look at under-focused areas such as Plant Varieties, GIs and TKs.

SpicyIP has now made the draft document available here for viewing:

National IPR Policy – A baseline draft

II. Arbitrary Side-lining

For reasons unknown, both the draft as well as the committee have been completely ignored ever since the submission of the document on October 21st, 2014. On October 24th however, the DIPP put out a Press Release announcing the formation of a new IPR Think Tank comprised of 6 (new) members – assigned with the task of formulating a National IPR Policy!

Leaving aside the question of why the NITT was assigned a task that had just been completed by another committee the DIPP had already assigned the task to – I want to point out how shocking it is that the DIPP not only re-assigned the task without any reason given, despite many hours of work, and a whole draft policy being submitted for it by the 3 member committee – but also that they couldn’t be bothered to communicate the same before or even after announcing the NITT. Is it appropriate for the Government to ask well-respected academics (or anyone, for that matter) to spend many hours of their own personal time on government work – for no charge, mind you – and then simply discard the resulting document without any reason or explanation!? Nor even a basic courtesy communication to tell them that they’ve constituted another body with different members to do the same task?? It seems a mighty shame that the government sees it fit to so easily disrespect academics and researchers that they themselves had summoned and who are freely giving their time in national interest. If academics are treated like this – should they be wasting their time with the government at all?

Protesting this behaviour, in a letter to the Prime Minister, 2 members of the committee wrote:

Surely, this is not the way to treat those that are willing to offer you time and expertise. The government often complains that academics do not make enough time to contribute to national policy making, and yet if this is the way they treat academics, it leaves us with little motivation to spend our valuable time on endeavours such as this. We know that governments often tend to work in mysterious ways, but it is beyond us as to why we were not even as so much as informed of this new development and had to learn of it from the press. Although we are very upset with the way that the government has treated us, please note that we will extend our fullest co-operation to the new committee and aid it, as best as possible, in its task of formulating a nuanced IP policy.

View the full letter to the Prime Minister here.
View Shamnad’s letter to the DIPP, upon reading the Press Report announcing the NITT, here. As I understand – there has been no response to this till date.

Its also worth noting in this light – that despite having a number of MHRD IP Chairs situated across the country, and thus having access to top IP scholars who are often willing to assist the government at free or nominal charge – I hear that the government instead hires (with your tax money of course) lawyers at costs of up to Rs 10,000 per hour!!

But aside from the treatment of the academics – which could’ve been handled better – the core question still remains. I’ll repeat what I asked yesterday: what exactly happened here? Did someone in the upper echelons not like the draft policy and decide it would be better to pretend it never happened? Or are there conflicting decision makers within the DIPP who both independently decided to constitute committees, and then they had to discard one? Or is there some other reason. As it currently stands, it seems the only possible answers are either incompetence or malice – I’m not sure which is worse!

III. Questions on the NITT

In my post on the NITT yesterday (National IPR Think Tank – Whats going on?), I pointed to two articles which raised penetrating questions regarding the formulation of the think tank. One by Sagnik Dutta in Frontline, “Breach of Promise on IPR Policy“, and one by Latha Jishnu in DownToEarth, “Re-thinking IP Think Tank“. Both these articles state that there is much discomfort by public health activists especially, over the inclusion of primarily corporate sector representatives. Collecting views from both articles:

Of the 6 members, only the chairperson Justice Prabha Sridevan has not been called into question. Of the other 5 members – (1) Rajeev Srinivasan, director of Asian School of Business’, appointment has been questioned on the grounds of lack of IPR experience. (2) Punita Bhargava, of Inventure IP, has been questioned as to her expertise. On these two, Sagnik (Frontline) writes:

Speaking of two of the other members of the think tank, a senior academic said: “Punita Bhargava is not a well-known practitioner in the field of IP. Also, she is related to Union Finance Minister Arun Jaitley. A government which was consistently critical of the UPA [United Progressive Alliance] for cronyism is going down the same road in appointments to positions of vital importance in policymaking. Rajeev Srinivasan has been a management consultant and teaches in a business school. He has worked on innovation, but has no experience in intellectual property rights.”

The three others have been questioned not on experience or expertise but rather on the grounds of being representative of industry interests. They are (3) Unnat Pandit, of Cadila Pharmaceuticals Ltd, (4) Prathiba M. Singh, Senior Advocate, and (5) N.K. Sabharwal, ret’d DDG, member and convenor, WIPO, and presently IPR Chair, FICCI – an industry body. Read the above two articles for more on them.

Speaking to Rema Nagarajan of ToI on Nov 30th, Senior advocate and former UN special rapporteur on the right to Health, Anand Grover, said the following regarding the think tank:

“Where are the academicians who have been advising the government on IP for so many years? We want to know from the government how the members of the think tank were picked. There has to be a transparent process. The BJP has come to power partly on the basis it is against nepotism. Who picked the members? The mandate of the think tank suggests that they will advise the government on IP policy forever. All this might just be window dressing, because some lobby within the government is pushing to change the IP law. Even the Confederation of Indian Industries (CII) and Federation of Indian Chambers of Commerce and Industry (FICCI) want the law changed. But they have always been part of the MNC conglomerate and will only think of their interests and about getting more investment. It will not be that easy. Our patent law was unanimously passed by Parliament. The whole government has backed the stance on section 3(d) so far. It will be a huge shift if they actually come out against it.”

Click here for Grover’s full interview. Incidentally, it was Rema Nagarajan’s article in ToI the following day, December 1st, critical of the formation of the NITT, that was mysteriously taken down. Click here or here to view it.

Concerned by these developments and what they may imply, MSF has issued a Global Sign-on letter to the NITT. As the letter states,

“We are writing to request that the Think Tank not revisit or challenge democratically-determined and legally-consistent intellectual property rules introduced under India’s Patent Act. We call upon the Think Tank to invest its expertise, time and resources to focus its mandate upon the proper implementation and operationalisation of public health safeguards in India’s patent law. “

Click here to view or sign the letter.

Lots of questions – will the Government start to answer them?

Collection of important links in this article:
1. DIPP’s letter asking 3 member committee to formulate National IPR Policy
2. National IPR Policy – A Baseline Draft
3. Initial letter to DIPP asking for clarification upon Press Release announcing NITT
4. Letter to Prime Minister upon no response or clarification from DIPP
5. Sagnik Dutta in Frontline, “Breach of Promise on IPR Policy
6. Latha Jishnu in DownToEarth, “Re-thinking IP Think Tank
7. Anand Grover’s interview by Rema Nagarajan
8. Rema Nagarajan’s article in ToI that was mysteriously taken down
9. MSF’s Global Sign-On letter

 

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.

One comment.

  1. Ishupal

    As a researcher working on distributive considerations, I am particularly happy that the draft policy prepared by Dr. Ganguly, Prof. Basheer and Mr. Pai, explicitly raise the issues of distributive inequities in IP law and policymaking rather than just treating it as part of the incentive-access balancing act. It would be most unfortunate if these policy guidelines are ultimately discarded or not taken into consideration.

    Reply

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