In this post, as promised, I’ve summarized the pertinent issues highlighted in the 2016 Special 301 on India’s IP landscape. Running from pages 38 till 45, subject areas are in the order of – (i) National IPR Policy (ii) Copyright and Piracy (iii) Patents and Regulatory Data Protection (iv) Trade Secrets (v) Trademark and Counterfeiting and (vi) Localization Trends.
Same order was followed in the 2014 and the 2015 Special 301 Report. Though, I’m still grappling with whether this was to highlight the issues in the order of their priority. A plausible reason for copyright preceding patents could be due to former being Congress’s particular motivation for creating the Special 301 Process. (See more on this here and pages 94 to 97 of Information Feudalism, wherein Professor Drahos elaborately elucidates IIPA’s extensive lobbying efforts in the Special 301 Process.)
National IPR Policy :
The Report lauds the efforts undertaken by Government of India in constituting the IPR Think Tank wherein mutual interests of both the countries had been identified. It presses the need for the Policy to reflect the commitment expressed by Prime Minister Modi and other high level officials in improving the overall Indian IP climate. Basically, resonating the need for a pro – U.S. corporate IP Policy
Copyright and Piracy :
- Urged India to (a) enact an anti-camcording legislation (b) replicate the Berne Convention model on statutory license provisions related to copyrighted works (c) prompt licensing of collecting societies to ensure its efficiency (d) full establishment and operationalization of India’s s Copyright Boards. (e) addressing the problem of underreporting of cable subscriptions (f) prevention of Indian public broadcasters from facilitating the dissemination of pirated content (g) additional protection against signal theft, circumvention of TPMs and online copyright piracy.
- Expressed the need for an adoption of effective legal measures to counter online piracy including efficient notice-and-take-down procedures and other efficient mechanisms consistent with international best practices.
- Called for a review of statutory damages provisions for copyright piracy to ensure their deterrence.
- Underscored the importance of developing an effective legal framework to address the high incidence of camcording.
Patents and Regulatory Data Protection :
- Commended India’s action to modernize the Patent Office by digitizing records, upgrading online search and e-filing capabilities and announcement to hire additional patent examiners.
- Expressed concern over India’s innovation climate on account of serious challenges in securing and enforcing patents particularly for sectors such as bio pharmaceuticals, agricultural chemicals, software and green technology.
- Continued to have reservations over heightened patentability criteria under Section 3(d) of the Indian Patent Act, 1970 urging its amendment in order to improve the ease of doing business in India.
- Urged India to improve and streamline its patent opposition procedures.
- Expressed the need for re – examination of policies imposing significant burdens on patent applicants.
- Necessity to improve India’s severely taxed patent office for enabling the reduction of patent application backlog.
- Expressed concerns over the lack of transparency in formulating the guidelines on Computer Related Inventions.
- Expressed concern over the Patent (Amendment) Rules, 2015 providing for expedited review to patent applicants who either manufactured or had committed to manufacture locally.
- Sought clarification over India’s compulsory licensing law even though recently it had issued only one CL and rejected another.
Trade Secrets :
- Expressed concern over difficulty in obtaining remedies and damages for trade secret protection.
- Highlighted the lack of procedural safeguards for protecting trade secrets or other confidential information divulged through discovery in civil or criminal litigation.
Trademark and Counterfeiting :
- Cumbersome procedure for acquiring a trademark.
- Significant delays in cancellation and opposition proceedings at the Trademark Registry.
- Insufficient resources devoted to institutions such as police, customs and judicial enforcement.
- Troubling level of production, sale, distribution, importation and exportation of counterfeit goods affecting Indian market.
Localization Trends :
- Expressed concern over actions and policies that favoured local manufacturers or Indian IPR owners.
As a concluding remark, the Report welcomed the steps taken by Indian Government over the past year to improve its IP regime.Though there were still serious deficiencies calling for urgent action. It looked forward to working with the Indian Government on those challenges.