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Indian IP Policy: Two Tongued?

two tonguesA week or so ago, I’d emailed our SpicyIP mailing group with the following message (and linking to Kumar Sharma’s piece in Business Today):

“Apparently, Modi-ji wants India to adhere to “global” IP standards (see extract of article from Business Standard, by Kumar Sharma, one of the most insightful journalists today on the Indian IP/pharma scene).

And pray: what are these “global” standards? If its the TRIPS standard (the only real global IP standard in existence today), then we are very much in compliance. And there is no real  “matching” to do. But if by “global” standard, the Hon’ble Prime Minister means those standards prescribed by big pharma and their host countries (US and EU), then we are clearly way off the mark! And to top it all: Nirmala Sitharaman (one of the most opaque ministers ever known: but then, almost all commerce ministers have been known for opacity and double standards) claimed sometime ago that there was no way India was going to budge under US pressure and change its law. Will the real government please stand up? And tell us what exactly is going on?”

Swaraj then did a hard hitting post,  asking ‘Who Makes It (National IP Policy) in India?” and tracking the timeline of the various flip flops and inconsistencies on the Indian IP position.

I’ve now done an op-ed for the Indian Express reflecting on this theme and the latest US Special 301 report, as extracted below. To read the original version of this piece as published, click here.

Will Real IP Policy Stand up?

By: Shamnad Basheer

Government has been speaking in two tongues on intellectual property.

Last week, Prime Minister Narendra Modi expressed his desire to see India adhere to “global” IP standards. The United States Trade Representative (USTR) was quick to latch on to this, noting in its latest Special 301 report: “The United States also welcomes April 2015 statements made by Prime Minister Modi recommending that India align its patent laws with international standards and encourages India to expeditiously undertake this initiative.”

All of this raises the question: What exactly are these “global” standards? If it is the WTO-TRIPS standard, the only real global IP standard in existence today, then India is already compliant. But if, by “global” standards, the prime minister means those prescribed by big pharmaceuticals and their host countries (the US and the EU) then we are way off the mark.

To add to the confusion, a few months ago, Commerce Minister Nirmala Sitharaman had affirmed that there was no way India would budge under US pressure and change its law. More recently, she attempted to project Modi’s statement as meaning that India is already compliant with international standards — an incredulous stretch.

Double talk notwithstanding, the Americans appear appeased — this year’s Special 301 report records with glee India’s efforts at improving its IP image. The USTR appears particularly pleased with the government constituting an “IP think tank”, which has been mired in controversy domestically, owing to allegations that some of its members were picked on the basis of their links to the ruling dispensation, not for their expertise in IP-related matters.

The USTR has also commended the general drift of the draft IP policy published by the think tank. For the most part, however, the Special 301 report this year simply rehashes what was said in previous years: that the US is unhappy with India’s patent regime particularly because of Section 3(d) of the Indian Patents Act and our rather stellar success in curbing the vice of evergreening. And that in the realm of copyright and trademark enforcement, India needs to do a lot better, particularly since the estimated losses to the national economy from counterfeiting and piracy is a whopping $4.26 billion, a figure arrived at by the International Chamber of Commerce. Given the difficulty of valuing something as intangible as intellectual property, a problem that routinely causes our judges to skirt the issue of IP damages, the fact that industry associations are able to assign figures with such accuracy is miraculous.

Unfortunately, as in previous years, the USTR got it wrong in a couple of places. It admonishes Indian law for shortcomings that it does not suffer from. The report notes that India does not offer adequate protection for trade secrets and shelters them only through contract law.
Nothing could be further from the truth. Our courts have invoked the common law of trade secrecy and breach of confidence to protect trade secrets when appropriate.

The report is also replete with powerful paradoxes. It lauds the constitution of our IP think tank as the example of a transparent process when it has been anything but.

On a positive note, the report should be praised for its policy recommendation on one issue. As in previous years, it rightly notes that India cannot have its cake and eat it too. On one hand, India takes a strong stand on access to medicine when it comes to calibrating the extent of IP rights. On the other, it imposes some of the highest tariffs for incoming medicines and medical devices.

Overall, the Special 301 report appears milder in tone than in previous years. This could be because of the diplomatic gains made by Modi. Whether the cosy camaraderie with the US will ultimately swing Indian IP law in favour of American business interests remains to be seen — what one says in a public display of diplomatic affection is one thing; what goes on behind closed doors during policymaking is quite another.

The government speaking in two tongues — to appease a trading partner on one hand, and a domestic constituency on the other — has complicated matters. Will the true IP policy please stand up?

ps: image from here.

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

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