In this post, I’ll highlight the extent of lobbying prevalent at the 2016 Special 301 Report. The Special 301 is largely influenced by five industrial lobby groups, the Pharmaceutical Research and Manufacturers of America (PhRMA), the International Intellectual Property Alliance (IIPA), the United States Chambers of Commerce’s Global Intellectual Property Center (GIPC), the Biotechnology Industry Organization (BIO) and the Business Software Alliance (BSA). With respect to India’s designation, the Alliance for Free Trade With India (AFTI) and the US – India Business Council (USIBC) also exert a significant clout over the Process.
INDIA’s DESIGNATION UNDER THE 2016 SPECIAL 301 : RECOMMENDATION BY TRADE GROUPS
All the above mentioned trade groups in the written comments submitted to USTR had recommended India to be placed on the Priority Watch List. Barring IIPA, BSA and the USIBC, the other four trade groups had also called for an Out – Of – Cycle Review (OCR). (I had compiled the recommendations made by the trade groups and had previously blogged about it here).
Thus, it’s no surprise to see India on the Priority Watch List. Though going by the submissions, I was expecting a mandatory OCR. Just to reiterate, in this year’s Report, the USTR reserves the right to conduct an OCR depending upon either positive or negative developments warranting a review prior to the annual cycle.
RECOMMENDATIONS ON PATENTS
Reservation on account of following issues had been expressed by all these organizations and have unsurprisingly found habitat in the Report –
(a) Impediment to 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.
(b) Concern over Patent (Amendment) Rules, 2015 providing for expedited review to applicants who either manufacture or commit to manufacture locally (Localization Requirement).
(c) Clarification over India’s Compulsory Licensing law.
Barring USIBC, the above mentioned organizations had also expressed concern over mounting patent application backlog at the Indian Patent Office. Further, except for BSA, heightened patentability criteria under Section 3(d) of the Indian Patent Act, 1970 was also a concern to all.
Other patent related issues highlighted in the Report such as (a) the need for improvement over patent opposition procedure (b) re – examination of policies imposing significant burden over patent applicants and (c) lack of transparency in formulating the guidelines on Computer Related Inventions were recommended to be included by atleast three out of the seven organizations mentioned above. Thus, signifying the weightage accorded to the recommendations of these organizations. Infact, there is’nt a single issue highlighted in the Report which is not based upon a recommendation of these seven organizations. ( See here on the area wise issues highlighted in the Report).
RECOMMENDATIONS ON COPYRIGHT
High incidence of online piracy underscoring the need for an effective legal framework was expressed by all these organizations. Under reporting of cable subscription was a concern for the IIPA and the USIBC.
Following issues were recommended by each of the above mentioned organizations :
(a) Replication of the Berne Convention Model on statutory license provisions for copyrighted works.
(b) Establishment of Copyright Board.
(c) Prevention of public broadcasters from facilitating the dissemination of pirated content.
(d) Protection against Technological Protection Measures (TPMs).
Surprisingly, prompt licensing of collecting societies for efficacy reasons and review of statutory damages provisions for copyright piracy were not recommended by any of these organizations.
RECOMMENDATIONS ON TRADE SECRETS AND TRADEMARKS
Of relevance to trade secrets are the comments submitted by USIBC, BSA, GIPC and the AFTI. Difficulty in obtaining remedies and damages for trade secret protection was a concern expressed by all these organizations.
Out of the mentioned organizations, none of the organizations made any trademark specific recommendations. Though, the USIBC expressed a concern over India’s legal system by highlighting the interrelationship between trademark protection and frivolous criminal cases filed against U.S corporations. Many U.S. corporations and senior executives were taken into local criminal courts by trademark defendants as a pressure tactic.
Trademark specific comments were made by the Trademark Working Group. It exerts minimal clout over the entire Special 301 Process. However, in the trademark sphere its comments have much credibility in the eyes of the USTR. This year, it expressed two concerns over India’s trademark system, (a) Denial to trademark owners effective protection against infringing marks and (b) The failure to alleviate the backlog of long-pending oppositions.
In my next post, I’ll analyse the treatment meted out to comments submitted by public interest organizations in the Report and draw a parallel on the weightage accorded to the recommendations of trade groups vis-a-vis public interest organizations.