Innovation

India’s New IP Policy: A “Bare” Act?


emperors new clothes

I assumed the Hindu op-ed would be the last of my writings on that delightful document titled the “National IPR policy”; one that spewed out many a seductive IP slogan.

Unfortunately, that was not to be: and I had to do a second take on this policy in the Deccan Herald. Likening the new policy to the Emperor’s new clothes, a famed fable of a vain king who struts around stark naked after being made to believe that he’d been woven the finest of clothes.

And for those that bore of some of the repetitive statements I make, there are two more engaging pieces by Dr Majeed (of the Sami Labs fame) and KM Gopakumar (third world network) in the same paper. And if you bore of them as well, there’s a wonderful piece by Prof Srividhya Ragavan in the Hindu Business Line titled “A Policy Without Intellectual Clarity” where she notes:

“At first glance, the policy certainly reflects invested effort and interest. Yet, the document begs the question of “why a policy on IPR” and “why now.” Generally, policy documents signify a way forward before major amendments are executed. Considering that only a few years back India went through extensive legislative activity amending its patent, copyright, trademarks and design law, the reason for the current policy initiative remains unclear.

Maybe, the Prime Minister’s US trip, which begins on June 4, provides a reason. But Obama is a lame-duck president. Even the US Constitution under the 20th Amendment recognises that during the last year of an official’s term, the executive wields less influence with other politicians due to their limited time left in office. There should never be a need for India’s Prime Minister to create policy documents to please the president of the United States. What’s more, this certainly is not such a moment.”

Anyway, for those interested, I reproduce the text of the piece I wrote for the Deccan Herald (unfortunately, the online version appears to have placed some para’s wrongly–which I’ve corrected below).

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 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. 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:

  1. Open innovation is mentioned in a section titled “IP generation”
  2. 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 uptodate when formulating the policy
  3. 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 that: “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 to not fall 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!

ps: Image from here.

Shamnad Basheer

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.

One comment.

  1. AvatarSrikanth

    Exactly, new IP policy is like – “A patent explaining the advantages and developments of the invention, without disclosing the statements on working/reduction to use of the invention”. Apart from govt. spending money of tax payer, at least this govt. makes some headlines/news of IPR in the newspapers/media (Eye-opener thing!).

    Reply

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