Continuing the discussion on the book- “Intellectual Property Debates in South Asia“, edited by Dr. Pratyush Nath Upreti, Akshat Agrawal reviews part II of the book (Intellectual Property Developments in South Asia) and examines how South Asian IP regimes are shaped and constrained by the imperative to align with TRIPS, often at a high developmental, cultural, and public-interest cost. Discussing the chapters focusing on Sri Lanka, India, Nepal, Pakistan, and Afghanistan, Akshat highlights how legal transplants, trade pressures, and local resistance interact to produce uneven, contested, and deeply political IP outcomes across the region. Akshat is an advocate practicing in intellectual property and technology law at AASA Chambers, and is pursuing a PhD at the University of Cambridge Faculty of Law. See here and here for reviews of Parts I and III of the book by Shama Mahajan and Prof. Ishupal Singh Kang, respectively.
[We also organized an online discussion on the book, where the reviewers exchanged their perspectives and engaged with questions from the audience. Interested readers can check that out here (Part I and Part II).]
(Part II) Book Review: Intellectual Property Debates in South Asia
By Akshat Agrawal
It is a matter of great privilege to be writing this review for Part II of Intellectual Property Debates in South Asia: Law, Development and Practice, a series of essays edited by Pratyush Nath Upreti. A significant reason for that privilege is that the book is dedicated to the memory of Professor Shamnad Basheer, who was a mentor – at least subconsciously – to many of us who never got a chance to speak with him, but have learnt immeasurably over the years from his teachings, writings and vision. The best part was that Professor Basheer understood the policy goals underlying these tools but continued to question the particular instruments that have been adopted to address those policy goals. His intellectual humility remains the North Star for many of us working in this field.
Returning to the task at hand, Part II of this book presents a series of five chapters that analyze the position of intellectual property rights in five different South Asian jurisdictions: Sri Lanka, India, Nepal, Pakistan, and Afghanistan. What is most interesting to me is how all these chapters approach this analysis from the purview of these South Asian nations having to align their legal norms with the TRIPS Agreement. It also brings into the foray the fact that many of these nations “had to” do the same because of various other benefits that they supposedly attained out of the trade negotiations that ensued during the Uruguay Round at the WTO. A trade-off for many was acceding to the TRIPS Agreement and thereby reformulating their intellectual property norms and rules – often at significant developmental cost.
Starting with Sri Lanka, Nazima Kamardeen’s chapter demonstrates how TRIPS norms were fundamentally misfit for a social context valuing community innovation, environmental stewardship, and tradition. Her discussion of Sri Lanka’s scientific achievements reveals how traditional technological developments were miscredited due to colonial erasure. The cross-slot screw, used by Sinhala craftsmen as early as 1680 AD, failed to serve as prior art for modern patents because “Sri Lanka’s existing technology was reposing in the museums of its former colonizers.” This echoes Richa Nagar’s “Hungry Translations,” where knowledge claims of those with visibility systematically undermine the stakes of others who arrived first but remain invisible due to structural disadvantage, effectively rendering them invisible.
Kamardeen documents bio-piracy through a Japanese company obtaining a patent for dental caries prevention using Sri Lankan medicinal plant extracts employed for centuries by native populations. But the most interesting for me is her analysis of Sri Lanka’s folklore protection framework. Copyright vests not in individuals but in the Director General of the National Intellectual Property Office, who holds regulatory rather than exclusionary rights. Anyone desiring to use folklore expressions must apply for permission upon payment, with revenue directed toward cultural development. This represents an innovative tailoring mechanism worth learning from. Kamardeen also discusses how geographical indications receive strong protection for products like tea and cinnamon with significant export value, demonstrating how politico-economic considerations shape protection levels.
Professor Arul George Scaria and Varsha Jhavar’s chapter addresses Indian copyright law and generative AI, tracing global litigation on training AI models and analyzing Indian law’s exceptions framework. The Copyright Act lacks enumerated exceptions for machine learning, instead employing a two-step assessment under Section 52(1)(a). They propose adding a broad fair use provision similar to the United States, supplemented by statutory guidance defining “fairness” through three factors: the nature of the copyrighted work, impact on copyright owners’ capacity to reap fair reward, and purpose and character of use.
These suggestions, very well, broaden permissible uses, beyond what is currently statutorily prescribed, and ensure that the risk of strict judicial formalism stand alleviated. Complimenting this, and to avoid the indeterminacy associated with the fair use 3-factor test (and multi factor tests in general), curtailing the rights scope in the first place is important. Indian law consciously maintains narrower rights in Section 14 than American copyright. A broad derivative works right is absent; instead, a narrow adaptation framework exists which, interpreted faithfully, resolves disputes at the Section 14 stage by showing no covered right was infringed. It may be worthwhile to consider the positive results achievable by curtailing rights scope itself as complimentary to broadening the exceptions framework, especially in quest of judicial certainty.
Pratyush Nath Upreti’s chapter provides empirical assessment of trademark litigation in Nepal as it prepares for LDC graduation in 2026. He demonstrates how artistic expression was historically intertwined with religious activities, evidenced by temple carvings showing creativity’s social value despite no formal IP system. Trade liberalization through GATT required Nepal to enhance IP protection, with WTO accession introducing new rights. Article 25 of Nepal’s Constitution recognizes intellectual property as a fundamental right, driven by desires to encourage foreign investment.
On his section on trademark litigation, Upreti documents how Nepalese courts have been liberal in permitting similar marks to coexist where products differ sufficiently to avoid consumer confusion. He concludes that trademark law is being transformed to strengthen right holder protection – reforms he considers essential for LDC graduation.
Muhammad Zaheer Abbas and co-authors examine Pakistani patent legislation’s impact on public health, arguing Pakistan has adopted TRIPS flexibilities narrowly. Compulsory licensing provisions ignore global developments like Article 31bis export-oriented licensing. Pakistan’s consistent presence on the USTR 301 watch list has driven its pro-patent stance despite public health concerns. They document regulatory gaps and unqualified pharmacists creating significant public health crises. Their conclusion demands Pakistan recalibrate patent policy to align with national interests, constitutional obligations, and human rights commitments – not merely trade agreements – emphasizing the need for improved pharmaceutical pricing and safety frameworks.
The final destination in Part II is Afghanistan. Awal Khan Ahmadzai’s chapter on Afghanistan reveals another constraint dimension. Afghanistan acceded to the WTO only in 2016 as an LDC. Ahmadzai discusses profound conflicts between IP principles and Islamic Sharia, which emphasizes knowledge dissemination while opposing concealment. Copyrights on Quranic translations have been challenged, and Sharia’s public interest prioritization limits IP law scope, creating internal conflict. Afghanistan formulated a Copyright Act in 2008 but needed extensive technical assistance for implementation. Lack of public awareness may stem from conflicts with Sharia values, resulting in enforcement failures.
Successfully, Afghanistan has registered three geographical indications: Herat-Bastan Saffron, Khost-Musakhil Pine Nut, and Kandahar-Argandab Pomegranate, which is significant due to the global popularity of these products. However, enforcement is often challenging due to internal political instability and security concerns drive the fulcrum of the country’s focus and rightly so.
These chapters collectively illustrate how countries struggle to harmonize laws with TRIPS-imposed standards, constraining them profoundly. This evokes Susan Sell’s Private Power, Public Law, which traces these constraints as systemic results of capitalism’s proliferation. TRIPS is a fundamental rupture whereby private multinational capital captured international lawmaking to impose uniform high-protectionist IP regimes stripping developing countries of regulatory autonomy necessary for catch-up elsewhere. What was historically flexible became rigid and universalized. The “old system” permitted states to calibrate IP protection to developmental stages and comparative advantages – what Graham Dutfield calls – IP’s Gradualism, but TRIPS eliminates this policy space mandating enforcement of Northern knowledge monopolies.
This represents not trade liberalization but “internationally driven reregulation” serving global capitalism’s structural imperative to extract rents from knowledge commodification, blocking technological diffusion that historically enabled successful late industrialization. Kamardeen’s documentation of colonial erasure exemplifies the regime’s temporal asymmetry.
Local legislations attempt preserving developmental flexibility through TRIPS flexibilities, compulsory licensing, and narrow patentability standards, but these efforts remain constrained by the agreement’s high protection floor, dispute mechanisms privileging Northern interpretations, and bilateral pressures demanding TRIPS-plus commitments foreclosing existing flexibilities. Sri Lanka’s folklore framework represents working within TRIPS while preserving cultural autonomy. Yet all remain fragile – Pakistan’s USTR 301 watch listing shows how bilateralism’s ratchet effects systematically foreclose formally permitted flexibilities. Afghanistan’s struggle reconciling Sharia principles with IP regimes reveals the profound disjuncture between TRIPS’ universalizing logic and plural normative orders governing knowledge production in the Global South.
Many TRIPS-imposed norms are alien to values traditionally associated with communities in these countries. Yet there exists a “have to” imperative to survive in global capitalism’s comparative quest. What this volume demonstrates is that resistance takes many forms: legislative design creating sui generis folklore protection or maintaining narrow adaptation rights, judicial interpretation permitting similar marks to coexist, administrative capacity creating de facto policy space, and cultural resistance where Sharia principles create normative pressure against IP’s exclusionary logic. Each chapter testifies that harmonization is not smooth, not inevitable, and certainly not costless. The struggles documented are deeply political, economic, and cultural – ongoing negotiations between global capital’s demands and local developmental needs.
This book is essential reading for anyone seeking to understand not just what IP law is in South Asia, but what it could be if we had the policy space to imagine alternatives. It reveals the gap between TRIPS’ universalizing rhetoric and the situated realities of IP implementation in diverse contexts. Most importantly, it demonstrates that the struggle for policy space is ongoing, that resistance persists even within constraint, and that alternative visions of knowledge governance remain possible. That is a message worth carrying forward as we continue the work that Professor Basheer endeavored.
