India’s National IPR Strategy : Panel Discussion

Introduction : 

Last week, the Hudson Institute and the GIPC had co – hosted a half day conference on India’s innovation ecosystem in light of the recently unveiled National IPR Policy (the Policy). (I’ve previously blogged about the event here and here).

This panel discussion was the first of a two part series delving into the Policy and its expected impact on India’s innovation ecosystem. Further, it also explored the affect of the impending regional free trade agreements (FTA’s) on India’s emergence as a leader in global economy.

The second panel discussion will take place on July 7th, 2016 in New Delhi. It will be co – hosted by the Hudson Institute and the AMCHAM.

us-pressure-on-indian-pharmaceutical-lead

Patrick Kilbride of the GIPC delivered the introductory note emphasizing India’s position as a world economic leader. As expected, he stressed upon the rather fallacious co-relationship between IP and innovation.

The first panel titled, “India in Isolation – The Growth of Multilateral Trade Pacts” discussed the relationship between multilateral trade pacts and Indian trade. The erudite panel was comprised of Leticia Santos of the BSA, Neena Shenai of Medtronic, Arun Venkatraman of the U.S. Department of Commerce (International Trade Administration) and Jeremiah Norris of the Hudson Institute (Center for Science in Public Policy). Ashley Mergen of the GIPC was the moderator.

Of relevance to IP was the second panel titled, “National IPR Policy – The Good, the Bad, and the Ugly”.   To my dismay, the panel was comprised of the usual industry representatives – Amiee Aloi of PhRMA, Kalpana Reddy of the GIPC and Joe Walsh of the 21st Century Fox. Dr. Aparna Pande of the Hudson Institute was the moderator.

I’ll confine myself to the second panel which deliberated upon the positives and negatives of the Policy.

Panel on National IPR Policy : The Good, the Bad and the Ugly

Dr. Aparna Pande opened the session by give a succinct account of India’s economic model with a special reference to it’s developmental needs. This according to her was reflected in the Policy wherein an attempt to strike a balance between the desire for innovation and India’s developmental goals was made.

Each panelist was asked about the good, the bad and the ugly in the Policy.

Amiee Aloi of PhRMA : 

 Aimee Aloi’s soft stance on the Policy which has otherwise received opprobrium from the pharmaceutical sector was rather surprising.

The Good :

  • Recognition of IP protection as an economic tool and its importance to innovation
  • Good slogan
  • Attempt to improve the Indian Patent Office
  • Involvement of both public and private sector in implementation

The Bad :

  • Areas in the pharmaceutical sector which demanded an overhaul.
  • Difficulty in securing and enforcing patents. This was particularly true for seeking patents on improvements over pharmaceuticals (ever- greening).
  • Absence of regulatory test data protection.
  • Ambiguity over whether importation satisfied the working requirement.

The Ugly :

  • Silence on the implementation of the Policy. According to her, there were many broad provisions in the Policy which were subject to interpretation. Implementation of the Policy was the yardstick to measure its success.

These weakness disincentivised investment by U.S. pharmaceutical corporations in India.

Kalpana Reddy of GIPC : 

Rather than pin – pointing at the positives and negatives of the Policy, Kalpana Reddy gave an overall feedback. She appreciated the efforts undertaken by the Indian Government to draft the Policy and it’s willingness to engage with the divergent stakeholders. Patent and trade secret protection was an area of concern. Non – commitment to make legislative changes in the Policy made it’s implementation questionable.

Joe Walsh of 21st Century Fox : 

Joe Walsh spoke at length about the size of India’s media and entertainment (M & E) sector and Fox’s ubiquitous presence in India. Zilch comments were made about the Policy.

However, on the legal and regulatory side, TRAI’s undue interference in the ability of copyright holders to monetize their content was expressed as a detriment to the growth of U.S. M & E industry in India.

Question & Answer Session : 

Two questions were raised. The first question came from Dr. Aparna Pande. Each of the panelists was asked if there was one realistic recommendation they could make to New Delhi, what would it be?

Amiee Aloi’s two fold recommendations were –

  • Usage of the Policy as a tool to implement the statements and comments made by the Indian Government in these past two years. The Policy should not be a missed opportunity.
  • People should be made accountable for the implementation of the Policy.

Kalpana Reddy aligning with Amiee Aloi remarked that the absence of detailing in the Policy raised plethora of questions.  Her other recommendations were –

  • Engagement with the entire stakeholder community in legislative reforms.
  • Room for improvement in the patent law sphere.
  • Adoption of cautious approach as India exercises its flexibility under international law. This was due to potential economic ramifications.
  • Requirement for Governmental intervention as there were possible yellow flash lights in the Policy.

Joe Walsh expressing concern over TRAI’s excessive involvement in the licensing regime, recommended less intervention at the hands of the Government particularly with the rapid technological advancement in the M & E sector. With its evolvement, regulatory minimalism was expected.

Maria Velez of the Pearson raised the second question. She questioned on the benefits that could accrue to digital India owing to regulations and whether its adoption would make India state of the art?

Kalpana Reddy answered that there was no right answer to that question. However, the spate of policy developments and the initiatives on cloud and encryption were a promising road map. To this, Joe Walsh added that the shift of the Copyright Office from the HRD Ministry to DIPP was a flicker of cautionary optimism (See here for the shift of the Indian Copyright Office to the DIPP).

Conclusion :

As the first public discussion on the Policy in Washington D.C., the limited participation from divergent stakeholders (in the second panel, all the panelists were industry representatives) was disheartening. As a result, the discourse was predisposed towards U.S. corporate interest, with scant perspective from not – for- profits, universities, think – tanks and research institutes.

About Seemantani Sharma (My views are my own and they should be yours too)

Nomadic IP Lawyer. Penchant for reading, critically thinking and writing (at times ranting) about IP. Awaiting for the Eureka moment for clearing my perpetual muddled academic interest - the global politics of IP or its economics or their confluence Aspire to enrol for a Ph.D in international and comparative IP law in the next five years or so.
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