The Office of the United States Trade Representative (‘USTR’) recently released its Annual Special 301 Report on Intellectual Property Protection (‘Report’). To borrow Swaraj’s description of an earlier Report, the Special 301 Report “is a unilateral measure taken by the USTR which essentially ranks countries according to how much the US appreciates their IP regimes, and this is used as a kind of [political] ‘shaming’ mechanism to coerce countries into ‘strengthening’ their IP regimes to match the TRIPS-plus standards that the US tries to promote.” As always, India has found its place in the ‘Priority Watch List’ indicating that the US does not agree with the IP law regime of the country at several points. Adyasha has analysed the softened stance towards compulsory licensing in the Report. In this post, I shall analyse India-specific copyright and enforcement related issues discussed in the Report.
The Report largely repeats its observations concerning copyright law in India from last year’s report. It commences with noting the high prevalence of piracy, particularly online piracy, in India. It is followed by a generic statement reading “Court cases and government memoranda also raise concerns that a broad range of published works will not be afforded meaningful copyright protection.” There is no indication what these cases and memoranda are that gives them such an impression and what issues that they deal with.
The Report then discusses the state of statutory licensing in the country in context of the draft Amendment Rules published by the DPIIT that sought to explicitly permit statutory licensing of internet broadcasts. It further goes on to criticize the draft amendments stating them to be antithetical to the interests of rights holders and questions the strength of protection of rights and the functioning of the music licensing market. These concerns, however, totally overlook the fact that the rules have already been notified a month and a half ago and none of these allegedly problematic aspects have seen the light of the day.
While the Report also raises valid copyright problems existing in India such as unauthorized file sharing and reprints, signal thefts, and circumvention of technological protection measures, the list also interestingly includes “commercial-scale photocopying”. This, however, is despite the thorough analysis in the DU Photocopy judgment highlighting inaccessibility of education in India and the necessary role played by such large scale photocopier to redress the same without hampering the market for the original product and within the confines of exceptions laid down in the Copyright Act.
Although not specifically mentioned in the country report for India, the general observations in the Report also emphasise the prevalence of unauthorized camcording as a key piracy issue and that India fails to “effectively criminalize unauthorized camcording in theaters”. While this might be considered to be in line with the commitments under Article 61 of TRIPS, it fails to take into account two facts. First, India’s criminalization of copyright infringements is already significantly broader than TRIPS requirements (see here) and thereby encompasses camcording, and second, there remains a general need to rethink criminalization as a solution to copyright piracy and assess its effectiveness.
As a parting aside, it is interesting to note that the Report mentions that the US is monitoring India’s next steps which includes “DPIIT’s December 2020 solicitation of public comments on amending the Copyright Act” (emphasis supplied). This is despite the fact that the consultations were carried out in a closed door manner with only industry stakeholders without any clear public involvement, thereby shutting off the biggest stakeholder as I argued earlier.
On the aspect of enforcement of intellectual property rights, the broad point made by the Report is that “While India’s enforcement of IP in the online sphere has gradually improved, a lack of concrete benefits for innovators and creators persists, which continues to undermine their efforts.” It further notes that the “overall IP enforcement” system in India currently “remains inadequate”. The Report rightly highlights some of the lingering problems in India from the perspective of enforcement such as lack of familiarity with techniques of investigation and absence of coordinated action by relevant authorities. It further highlights the absence of dedicated crime enforcement units in most states and recommends the creation of a “national-level enforcement task force for IP crimes.” The idea of the national task force seems to be in line with a similar approach undertaken in the US where an IP Task Force has been set up under the Department of Justice. The Mission Statement for the same reads as follows:
“The IP Task Force supports the Department’s efforts to aggressively investigate and prosecute a wide range of IP crimes, with a particular focus on: (1) public health and safety; (2) theft of trade secrets and economic espionage; and (3) large-scale commercial counterfeiting and piracy. The Department places a special emphasis on the investigation and prosecution of IP crimes that are committed or facilitated by cyber-enabled means or perpetrated by organized criminal networks. The IP Task Force also supports state and local law enforcement’s efforts to address criminal intellectual property enforcement by providing grants and training.”
The point raised regarding enhancement of enforcement mechanisms related to intellectual property is considerably important for India. India is both a large contributor to the market for counterfeit goods as well as a large victim of the same as discussed on the blog here and here. The present enforcement system works in a piecemeal fashion without much coordination between different agencies. Dedicated IP enforcement units in each state combined with a central coordination agency could significantly help in tackling counterfeit goods being sold at national scale. This, however, should not take place without due regard to the current intellectual property regulatory framework in India which has an overemphasis on criminalization. Unless intellectual property offences are restrictively drawn, the creation of a dedicated task force would largely lead to greater probability of innocent parties being arrested despite possibly being protected by exceptions such as fair dealing. Similarly, we must be wary of the narrative linking intellectual property enforcement as a solution to tackling spurious drugs as the same has been largely used by big pharma to protect their commercial interests against generic manufacturers (see here, here, and here).
As far as the issues on copyright, piracy, and enforcement are concerned, the Report does not offer anything substantially new compared to the previous Special 301 Reports. While the earlier idea of threatening unilateral trade sanctions that the reports used to carry has slightly faded with the WTO coming into picture, the US still has the option to issue a formal WTO dispute based on the findings in the Report. This mechanism, however, is rarely used, largely for countries categorized as “priority foreign country”. Despite this, the Report still carries the weight of acting as a pressuring tool to stimulate changes in the intellectual property regimes of concerned countries. It particularly affects bilateral relations between two countries as can be seen from the private assurance given by the Indian government to the US-India Business Council in 2016 of not invoking compulsory licensing for commercial purposes following criticism in earlier Special 301 Reports. Similarly, last year the USTR removed India from the list of ‘developing countries’, thereby taking away the preferential treatment with respect to countervailing duties (CVDs). However, as noted earlier, on the front of copyright and enforcement issues similar concerns have been raised in the past only with limited success in actual change domestically. Admittedly, a lot of suggestions that push for greater commercialization and lesser accessibility for the public at large should not be weighed heavily in India. Genuine concerns such as those surrounding heightened prevalence of piracy and counterfeiting, and ineffective enforcement should, however, be given adequate attention in times to come, so long as a balanced and contextual approach is taken towards these issues and not one that runs at the whims of IP maximalists.