National IPR Policy : An Analysis
Intellectual Property Right
The rights and privileges accorded to persons over their creative works, such as innovations, works of literature, and artwork, as well as use of names, logos and pictures in trade are known as intellectual property rights (IPR). Typically, they give the creator the only, time-limited right to use his or her invention and creation.[i]
The very first accords to recognise why IPRs are important were the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Both agreements are governed by the World Intellectual Property Organization. This article talk about the National IPR Policy which envisages a single platform for all the different types of IPR, for example, patent, trademark, copyright etc.
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What is National IPR Policy?
On May 12, 2016, the Indian Cabinet gave its approval on the “National Intellectual Property Rights Policy” to ensure adherence to the “TRIPS Agreement” and “Doha Development Round.” Under the guidance of the “Department of Industrial Policy & Promotion (DIPP), Ministry of Commerce, Government of India”, IPRs are being incorporated and will continue to progress in India.
“(“Creative India; Innovative India” is its rallying cry.)”
Front legislation that combines and unifies all IPRs under one roof is the National IPR Policy. It aims to promote and benefit from connections between various forms of intellectual property (IP), relevant laws, and government by combining all IPRs and putting them together in a unified platform while taking into account their interrelation.[ii]
It approaches IPRs holistically, taking into consideration all relationships, and makes an effort to create and capitalise on coherence across all kinds of intellectual property (IP), pertinent laws, and government organisations. It creates a formal framework for the implementation, management, and assessment. The best practices from around the globe are attempted to be adapted and modified suit the Indian environment.
The Policy recognizes the abundance of innovative and imaginative impulses flowing in India and the need to harness and guide these forces toward a brighter and more optimistic future for everyone.
Objectives of National IPR Policy
The national IPR Policy primarily focuses on the following 7 goals to achieve its goal of increasing public knowledge of all the advantages of IPRs in terms of economic, social, and cultural societal segments:
- “Administration and Management”-
To enhance and modernise IPR administration that prioritises services.
- “Developing Human Capital”–
To enhance and broaden the institutions, facilities, and capacities for instruction, research, expertise, and training development that is relevant to IPR.
- “Commercialization of IPRs”-
Profit from IPRs by commercialising them. IPR commercialization will increase value. The purpose of the Policy is to link IP investors and creators. Additionally, it seeks to develop a public platform where inventors and producers can communicate with users and purchasers.[iii] The value of IP will rise as a result of commercialization when it is evaluated for marketing purposes.
- “IPR Awareness: Outreach and Promotion”-
To raise awareness among all facets of society of the economic, social, and cultural advantages of Intellectual Property Rights.
- “Legal and Legislative Framework”-
Should have robust and efficient IPR regulations that achieve equilibrium between the rights holders’ interests and the greater public interest. The Policy seeks to establish a more robust institutional monitoring system to reduce IP violations at the State level. The new legislative framework seeks to strike a compromise between the interests of the general public and those of the owners of intellectual property.
- “Enforcement and Adjudication”-
To improve the processes for enforcing IPR rights and making decisions in cases of IPR infringement. To foster respect for IPR among the general public, the Policy aims to strengthen the IPR adjudicatory and enforcement mechanisms.[iv] It examines the establishment of specialist business courts to handle IPR infringement claims.
- “Generation of IPRs”-
To encourage the production of IPRs. Innovation is necessary for the creation of further IP rights. In order to achieve this goal, it is necessary to lessen reliance on imports and create domestic products by fostering an innovative atmosphere. With this goal, we hope to inspire businesspeople and innovators to turn their ideas and creations into intellectual property (IP) rights.
Problems in India’s IPR Regime
Due to alleged violations of intellectual property rights, India is still listed on the “United States Trade Representative’s (USTR) “Priority Watch List” (IPR)”. In its most recent issued by the “United States Trade Representative India” Special 301 report was alluded to as “one of the globe’s most troublesome major economies” “(USTR)”.
When test results or other data are given to the government as part of a proposal for market authorization of pharmaceuticals or agrochemical products, “international investors and multinational corporations” assert that they are not protected by Indian law from being improperly used for commercial gain. In reaction, they invite for a Data Exclusivity law.
For international investors that contribute technology, compulsory licencing presents a challenge because they worry that CL will be abused to copy their products. The talks on an FTA between India and the EU have been impacted.
The TRIPS (IPR) Agreement of the WTO permits mandatory licencing provided that requirements like “national crises, other extremely urgent conditions and anti-competitive behaviour” are present.
The Copyright Act is not effectively enforced, and copyrighted materials are frequently pirated.
Inventions utilising novel formulations of a well-known material are not eligible for patent protection under Indian Patent Act 1970 as per Section 3(d) as modified in 2005, unless there are significant differences in the material’s qualities that affect its efficacy. This indicates that the Indian Patent Act forbids the renewal of patents.[v]
The success of India’s two most important initiatives, “Make in India and Startup India”, hinges on the growth of the innovation ecosystem and improved IPR protection.
Disadvantages of IPR Policy
The IPR policy aims to cram all of the nation’s IP expertise within a restrictive framework. However, these initiatives will have a negative impact on several aspects of IP originating in rural areas.
The IPR strategy ignores the threat posed to India’s traditional knowledge by other nations wanting to patent it for themselves, such as Pakistan which unsuccessfully applied for a patent on basmati rice.
According to the IPR policy, all teachers in academic institutions should patent their work and encourage students to study their intellectual property. But patenting research will make it hard for others to access. In educational institutions, creativity must be emphasised more than IP knowledge.[vi]
While the policy promotes originality and invention on the one hand, it ignores the fact that after IP is given the majority of people now leave the industry, which could’ve been improved greatly.
Professors and researchers are urged to apply for patents early in the research process, even before their findings are accepted for publication in prestigious journals. Promotions are also based on the number of patents, which will stimulate pointless rivalry.
The new policy encourages MNCs to invest and set up shop here now that it is more in line with TRIPS’ recommendations, which on the one hand support recent government efforts like Startup and Standup India. However, one must consider the lax patent laws that gave India the reputation as the “pharmacy of the world.” It is debatable whether protecting IP rights or allowing for a greater flow of discoveries to be improved upon (like Elon Musk’s open technologies and inventions), but India needs to adopt a practical approach and avoid becoming biased.[vii]
Conclusion
Therefore, even though the new IP policy is a welcome step toward building an ecosystem for ease of doing business in the country and establishing India’s reputation among inventors and entrepreneurs around the world, we need to address the aforementioned challenge to achieve the objective this policy is aimed at.
Author: Mayank Pandey, A Student at the Babasaheb Bhimrao Ambedkar Central University, Lucknow, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.
REFRENCES
[i] Bajaj Auto Ltd vs. TVS Motor Company Limited 2009
[ii] Yahoo!, Inc. vs. Akash Arora & Anr 78 (1999) DLT 285.
[iii] Bayer Corporation vs. Union of India 2014 (60) PTC 277 (Bom).
[iv] Sameer Wadekar & Anr. vs. Netflix Entertainment Services Pvt. Ltd & Ors. 2020.
[v]International Society for Krishna Consciousness (ISKCON) vs. Iskcon Apparel Pvt. Ltd & Ors. 2020.
[vi] Neetu Singh v. Rajiv Saumitra & Ors. CS(COMM) No. 935 of 2016.
[vii] Star India Pvt. Ltd. vs. Moviestrunk.com & Ors. 2019
