India’s Top 10 Legislative & Policy IP Developments of 2020

1. Govt published revised Form 27 (patent working statement)

After an enormous delay of almost two years, the Government finally published the revised version of the Form in October 2020, as part of the Patent (Amendment) Rules, 2020. The new Form has reinstated the requirement to state the reasons for not working the invention and steps being taken towards working the invention (with an arbitrary word limit of 500 words though) which was removed in the draft Form published last year. However, instead of seeking more elaborate details in respect of the information that the previous Form called for (as was suggested in Prof. Basheer’s PIL), it has done away with the requirement of submitting the following information which was sought by the previous Form:

  1. Quantum of the patented product manufactured in India or imported into India;
  2. Country wise details of the value and quantum of the patented product imported into India;
  3. The licenses and sub-licenses granted during the year; and
  4. Statement on whether public requirement has been met at a reasonable price.

2. Copyright Office sought comments from industry stakeholders on amendments to Copyright Act

The Copyright Office recently invited comments from industry stakeholders and law firms asking whether there was a need for amendments to be carried out to the Copyright Act.

3. India and South Africa proposed waiver of key TRIPS provisions for Covid-19

India and South Africa issued a joint statement before the World Trade Organization for relaxation of certain TRIPS provisions in the wake of Covid-19. The rationale behind the proposal is to ensure accessibility of medicines and diagnostic products to cure the virus that might be hindered due to patent protections. Many countries might also face difficulty in using the TRIPS flexibilities. Additionally, for those countries lacking sufficient manufacturing capacity, the cumbersome process of Article 31bis of TRIPS is a cause of concern. Praharsh highlighted the issue of vaccine nationalism, given that as per manufacturing deals a large part of world’s population will not receive the vaccine till at least 2022. He pointed to the non ‘user friendly’ nature of Article 31bis for countries without manufacturing capacity. He notes that even a compulsory license would not suffice since trade secrets protections also come in the way. Moreover, effective technology transfer and know how sharing is important for which the developing countries are particularly not protected. This proposal was blocked at the WTO by High Income Countries.

4. IPAB to fix statutory licensing rate for radio broadcast royalties after 10 years

In this very significant development, IPAB passed an interim order maintaining the status quo of the royalty rate for radio broadcasts for statutory licenses under Section 31D of the Copyright Act. Subsequently, IPAB also issued a public notice inviting suggestions from stakeholders regarding fixing the royalty rates. The royalties had last been determined by the now-defunct Copyright Board in 2010, fixing them at a rate of 2% of the net advertisement revenues of the radio organizations from radio business, charged on a pro-rata basis.

5. Draft Competition (Amendment) Bill, 2020 proposed extension of IP exception to abuse of dominance cases

In February 2020, the Ministry of Corporate affairs came up with the draft Competition (Amendment) Bill, 2020, pursuant to the recommendations of Competition Law Review Committee. Among several other new provisions, the Bill proposed a new Section 4A. This was not a brand-new addition as such, as it extends the similar provision to Abuse of Dominance (AoD) cases that was hitherto applicable to anti-competitive agreements in the form of Section 3(5) as a ‘balancing’ provision. A closer look at the existing Section 3(5) or at the newly proposed Section 4A clarifies that it is not a blanket exemption to IP rights from the application of competition law as such, rather it is a declaration to affirm the right of an IP holder to safeguard her intellectual property. Vikas Kathuria argued on the blog that this seemingly benign declaration, however, may create new problems in the AoD cases related to intellectual property.

6. NDLI published a draft of India’s first copyright guide for Indian libraries 

The National Digital Library of India (NDLI) came up with India’s first Copyright Guide for Indian Libraries. The stated objective of NDLI is to educate, enable and empower the youth using quality knowledge and learning resources while harnessing the power of the digital medium. The Guide was created, keeping in mind our current age where new technologies and gatekeepers of knowledge make it difficult for librarians to understand and deal with multiple issues pertaining to copyrights. It is a crisp 20 page document for public review and NDLI had invited feedback on it by 30th September, 2020 via a Google form. Overall, the Guide seems to have been drafted, keeping accessibility in mind. To that effect, it tried to simplify the complicatedly drafted provisions in the Indian Copyright Act pertaining to library exceptions. It purports to be a skeletal explanation of the law as it stands and the rights implicated in the functions of the library. Anupriya responded to some questions posed in the feedback questionnaire on the blog. She also argued that templates and declarations meant to scope permissible and impermissible uses, can contribute to a permissions and clearance culture that inevitably restricts fair dealing.

7. Govt axed Bt cotton licensing royalties paid by Indian seed companies to Bayer 

Reuters reported that the Government of India “axed” the royalties that over 45 Indian seed companies had to pay Bayer (which acquired Monsanto) under IP licensing agreements which have been the centre of a massive legal dispute between Monsanto (before its acquisition by Bayer) and Nuziveedu (one of India’s biggest seed companies) for the last five years. For years, the Bt licensing agreements have earned Monsanto a fortune. Prashant wrote that this decision controls not only the retail price of cotton seeds, but also “trait fees” which cover ‘fee for patented technology, “know-how” and other services.’ He noted that though the ‘trait fees’ have consistently fallen over the past three years, its benefit has not been passed on to the farmers. Further, he suggested that the government’s decision may lead to more restrictive IP licensing agreements in the future. Analysing the government’s decision from a trade perspective, he noted the effect of suspension of U.S.’s GSP trading privileges on Indian industries. He concluded that a trade-off should ideally be between farmer incomes and incentivizing companies like Bayer to make their technologies available in India, rather than between profits of Indian seed companies and profits of MNCs. 

8. As 15 Asia-Pacific countries signed RCEP, India chose to sit out.

In November 2020, ten south-east Asian countries along with Japan, China, South Korea, Australia and New Zealand signed the Agreement on Regional Comprehensive Economic Partnership (RCEP), making it the world’s largest trade bloc. Initially projected as the alternative to Trans Pacific Partnership, the negotiations for this free trade agreement (FTA) were underway since 2012 and after 31 rounds, the member states finally sealed the deal via a video conference.The RCEP Agreement contains a dedicated chapter on prevention and enforcement of IP rights of the member states. Article 11.8 expressly declares that the Agreement shall not hinder the utilisation of Article 31bis of the TRIPS Agreement. India had withdrawn from the negotiations in November 2019 due to certain concerns. Regardless, RCEP members sent a formal statement showing willingness to commence negotiations with India even after the signing, provided India submits a written intention to accede to the RCEP Agreement. However, it doesn’t seem like India is eager to accede to the Agreement any time soon.

9. Controller General’s Office agreed with a petition for shutting down IPAB

In May 2020, Prashant Reddy and Rahul Bajaj had sent a petition to the Ministry of Commerce, asking it to consider shutting down the Intellectual Property Appellate Board (IPAB). They had argued that not only was the IPAB non-functional for a long time but it was also poorly designed, especially with regard to the post of the ‘technical member’. Rather than continuing with this broken model, they recommended that the existing functions of the IPAB be shifted back to the High Courts and commercial courts. The Ministry of Commerce sent their petition to the Controller General of Patents, Designs and Trademarks, asking for his comments on the petition. The Controller General’s office agreed with most of the contentions in the petition. Prashant noted on the blog that it was rare to see Indian bureaucrats speak in such categorically clear terms, in favour of reform.

10. Report on non-personal data (NPD) governance framework released 

The Committee of Experts on Non-Personal Data (NPD) Governance Framework, constituted by the Ministry of Electronics and Information Technology released its report on July 12, 2020. The Report purports to be a framework for governance of NPD, meant to grant access to NPD to industry players and the government for overarching public purposes. In order to increase the competitiveness of local and small enterprises and spur innovation, the Report is aimed at mandatory sharing of data to create economic advantages that are currently precluded due to data monopolies of a few dominant players. Anupriya examined on the blog, the government’s eminent domain powers against private entities’ right to IP, that arises in the case of data acquisition.

Please click here to view our list of India’s top 10 judgments/orders (jurisprudence/legal lucidity), here to view our list of India’s top 10 judgments/orders (topicality/impact), and here for the list of India’s top 10 other IP developments.