The U.S. Chambers of Commerce’s Global Intellectual Property Center has organized a panel discussion on India’s National IPR Strategy in collaboration with the Hudson Institute. In the wake of PM Modi’s recent visit to the U.S., the discussion will delve into the merits of the National IPR Policy in unleashing an era of innovative economy and driving global competitiveness.
Pertinent details of the panel discussion are –
Title of the Panel Discussion : India’s National IPR Strategy : A View From Global Innovators
Date : June 30th, 2016
Time : 9. oo a.m. – 10.30 a.m. (EST)
Venue : Hudson Institute, 1201 Pennsylvania Avenue, N.W. Suite 400, Washington D.C.
Registration Details : Interested people can register for free here
I’m unsure whether the webcast of the panel discussion will be available or not. As soon as I’ve an update on this, I’ll inform the readers. Needless to say, if the webcast is available, I’ll bring forth my views on it.
I want to highlight a diminutive error which has made its way to an otherwise informative read. In the context of India’s patent regime, the author opines that the lone complainant against it were the pharmaceutical MNCs. Quoting the relevant excerpt –
Government of India should understand that the demands from pharmaceutical MNCs if implemented would compromise the health security of India as well as millions of people living in other developing countries who are dependent on affordable generic medicines from India. Further, it is only the pharmaceutical MNCs that are complaining against the Indian Patent Act. Other industries like aircraft manufactures such as Boeing went on record to express their satisfaction on Indian Patents Act.
However, this is far from true. In the written submissions made to the USTR for the 2016 Special 301 Report, apart from the representatives of the pharmaceutical MNCs, several other trade groups representing diverse industries had also expressed their dismay over the Indian Patent Act. These are the U.S Chambers of Commerce’s Global Intellectual Property Center (GIPC), the Biotechnology Industry Association (BIO), the Business Software Alliance (BSA), the Alliance for Free Trade With India (AFTI) and the U.S. – India Business Council (USIBC) ( See here for more on this).
The GIPC as an affiliate of the U.S. Chambers of Commerce represents the business interests of more than three million corporations spanning all sectors. BIO’s membership base is not strictly confined to pharmaceutical corporations but encompasses four different sections within its ambit (healthcare, food and agriculture, industry and emerging companies). The BSA represents the world’s largest software developers.
The AFTI with its mandate to cement the U.S. – India commercial relationship comprises of various trade groups ranging from pharmaceuticals (PhRMA) to motion pictures (MPAA). And same holds true for the USIBC which represents 350 U.S. corporations having a blue print in India.
Hence, rendering KM Gopakumar’s assertion on the primary complainant against the India Patent Act somewhat preposterous.
Unveiled in 2007 by the Property Rights Alliance, the IPRI (the Index) is the sole international index indicating the worldwide status of property rights. It studies the correlations between the protection afforded by a nation to property rights and economic prosperity. It’s based upon three components –
(i) The Legal and Political Environment (LP)
(ii) The Physical Property Rights (PPR) and
(iii) The Intellectual Property Rights (IPR)
Countries are graded on a scale of 0 to 10, with 10 being the highest and 0 being the lowest for a nation’s property rights system. Same interpretation is applicable to the three components. (For more on the methodology, see here – page 9 onwards).
IPRI and Intellectual Property :
Not delving into LP and PPR (being outside the scope of this blog post), the IPR component of the Index evaluates the protection granted by a nation to intellectual property.
The Index not only measures the overall protection afforded by a nation to IP. But also, assess protection granted to its two major forms – patents and copyright (Barring the years 2007 and 2008 where an assessment on trademark rights had also been undertaken).
Patent protection is gauged from a de jure perspective while a de facto approach is applied for determining copyright piracy.
Patent Protection :
Since the inception of the Index till its most recent version (apart from the 2014 IPRI since it’s unavailable in public domain), the criteria and source for evaluating a country’s patent laws has remained static. The source being the 2005 Ginarte-Park Patent Protection and the criteria being –
(ii) Membership to international treaties
(iii) Restrictions on patent rights
(iv) Enforcement and duration of protection
Copyright Piracy :
From 2007 until 2009, the source for determining a country’s piracy level was the 2006, the 2007 and the 2008 Special 301 Report respectively.
Commencing from 2010 till 2013, reliance on IIPA’s submission to the USTR for that year’s Special 301 Report was the source. Additionally, for the years 2012 and 2013, BSA’s and IDC’s8th and 9th Annual Global Software Piracy Study were also respective sources.
For the most recent version (the 9th Edition, 2015), BSA’s Global Software Survey titled, “The Compliance Gap” served as the source.
For the years 2007 until 2009, piracy levels of four distinct industries – (i) Business Software (ii) Records & Music (iii) Motion Pictures and (iv) Entertainment Software have been included. From 2010 onwards, piracy levels of only business software and records & music industry were included.
India, IP and the IPRI :
Except for the first year, countries have been ranked on each of the components (the legal and political environment, the physical property rights and intellectual property rights). I’ve compiled India’s overall and IPR rank since the inception of the Index until 2015. Just to reiterate,the 2014 IPRI is not available in public domain.
Number of Countries Evaluated
As evident from the above Table, India’s overall and IPR score falls in the mid- range. Thus, signifying an “average” property rights regime vis -a`- vis other nations.
Going by India’s opening statement on behalf of the Asia – Pacific Group, it seemed supportive of a balanced WBT. However, I’m not in a position to comment on the ensuing negotiations during the informal sessions.
As promised, in this post I’ll highlight the treatment meted out to the comments and testimonies of the public interest organizations in the Report (only general and India specific comments). The public interest organizations which submitted written comments to the USTR were –
Barring the Colombian Civil Society Organizations, these organizations had also testified before the USTR. ( See here for the details on the public hearing)
UACT’s Written Submission and Testimony :
Recognizing India’s importance for its efficient supply of affordable generic drugs, the UACT severely objected to PhRMA’s misrepresentation of the WTO rules on issuance of compulsory license (CL) during national emergency. As expected, the Report took a dig at India’s CL law even though in recent times only one CL was issued. A rather oddity considering its repeated emphasis upon U.S.’s commitment to the Doha Declaration on the TRIPS Agreement and Public Health.
Further, a request for conducting a period impact assessment study on the implications of the IPR policies endorsed by it (through the Special 301) on patients and their families was made. It specifically called for statistics illuminating the number of cancer deaths due to lack of affordable generic drugs which were otherwise accessible via compulsory license had it not been for USTR’s pressure. The Report is silent on the status of this request.
KEI’s Testimony :
Highlighting India’s strategic importance in the access to affordable medicare debate, it called for a a policy coherence between human rights and innovation. Paradoxically, on one hand, the Report affirms U.S.’s commitment to the Doha Declaration and on the other takes a dig at policies facilitating accessibility to affordable medicines.
Some excerpts highlighting this paradox are –
The United States also recognizes the role of IPR protection in the development of new medicines, while being mindful of the effect of IPR protection on price.
The United States is firmly of the view that international obligations such as those in the TRIPS Agreement have sufficient flexibility to allow trading partners to address the serious public health problems that they may face. Consistent with this view, the United States respects its trading partners’ rights to grant compulsory licenses in a manner consistent with the provisions of the TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health, and encourages its trading partners to consider ways to address their public health challenges while also maintaining IPR systems that promote innovation.
On India’s CL law –
While emphasizing our continued commitment to the Doha Declaration on the TRIPS Agreement and Public Health, (see Intellectual Property and Health), the United States also continues to monitor India’s application of its compulsory licensing law. The United States requests clarity from the Government of India regarding the compulsory license decision-making process, as it affects U.S. stakeholders…..Although the government has issued only one compulsory license under Section 84 of India’s Patents Act and recently rejected another Section 84 petition, India has made clear in other policy statements that it views compulsory licensing as an important tool of industrial policy for green technologies, with the potential to be applied more regularly across economic sectors
Similar paradox is visible in its assessment of Section 3(d) of the Indian Patent Act, 1970.
Public Citizen’s Testimony :
Burcu Kilic of the Public Citizen opined on the ambit of the Report. She remarked that the Special 301 should solely address IP. Ancillary public policies such as pharmaceutical reimbursement, pricing or procurement should be outside its purview. However, the Report mentions them extensively as a market access barrier. (See pages 23 and 44)
As per her testimony, criticism of a country’s IP policies should be accompanied by a clearly articulated criteria. This has found favor in the Report atleast with respect to India. Issues highlighted are akin to objections rather than criticisms.
A statement on Section 3(d) and India’s CL law duly complying with TRIPS was made. She viewed that any reference to Section 3(d) in the Report must be considered in its full context if it is to provide any informative value. Unfortunately, the Report’s reference to Section 3(d) is bereft of any contextual analysis and can be best described as tendentious.
On the coherence between TRIPS flexibilities and Section 3(d), the USPTO questioned whether under any situation a new form, a new formulation or a new structure could be patentable subject matter. She indicated that the real problem was the seeking of second rate patents. To my dismay, this problem finds no place in the Report.
A question on Public Citizen’s position on ancillary public policies such as pharmaceutical pricing and reimbursement policies was raised by the Department of Health and Human Services. She exhorted that those policies did not suffice as IP. Their primary concern being drug pricing, which is extensively mentioned in the Report as a market access barrier.
PJIIP’s Written Submission and Testimony :
Underscoring the importance of limitations and exceptions, it advocated for the benefits emanating from a liberal construction of the fair use exception. However, this has not found place in the Report.
Inapplicability of India’s fair dealing provision to sound recordings and cinematographic films was also expressed as an area of concern. Objections on Indian Performance Rights Society’s unclear jurisdiction, rights and limitations was also raised. Neither of these have been mentioned in the Report. USTR refrained from commenting on the fair dealing provision. This could be due to its hesitation to subvert the mandate of the Special 301.(For more on this, see my post here).
Responding to USTR’s question (on listing countries identified by it in the Report), it called upon the discretionary areas of the Reportto highlight the positive developments on limitations and exceptions as well. Discretionary areas of the Report are, “Positive Developments” and “Best IPR Practices“. Neither of these sections have accommodated this request.
In past, there’ve been reports on the public interest organizations being subjected to an onerous burden of proof vis – a- vis trade groups (see here, here and here). However, this year, a parity atleast at that front has been maintained. Both categories of organizations were asked almost the same number of questions (between 2-3), with the USTR even commending PIJIP for its work. Even the difficulty level of the questions raised was the same.
Despite this, the meek deference given to the recommendations of the public interest organizations in the Report is an unfortunate missed opportunity.
The GIPC Index is not intended to be an industry Special 301 Report and, as such, not all countries included in the GIPC Index are included in the Chamber’s Special 301 submission. The GIPC Index is also not meant to be a comprehensive guide to all factors that make up a robust intellectual property protection and enforcement system. Rather, the GIPC Index serves as a discretionary policy tool to those countries wishing to evaluate the strengths and deficiencies in their intellectual property environments.
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.
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
Of relevance to copyright and piracy are the comments submitted by IIPA, GIPC,AFTI and USIBC.
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.
India’s statement on behalf of the Asia – Pacific Group at the 32nd SCCR is available here http://pmindiaun.org/pages.php?id=1294.
Going by its statement, its not difficult to guess its reluctance once again to support the WIPO Broadcasters Treaty in its heart and spirit.
In a previous post, I had made a cursory remark on the WIPO Treaty on the Protection of Broadcasting Organizations (WBT). Since the commencement of the negotiations for the WBT, the Indian delegation has expressed its reservations on some of the key provisions. This is possibly because voice has been expressed that no objective reason for the WBT had been established. However, this is far from true.
Ahead of the 32nd Standing Committee on Copyright and Related Rights (SCCR), scheduled from May 9th to May 13, 2016, I will highlight India’s position in the last two SCCRs. The upcoming SCCR could be decisive for the multilateral norm-setting by WIPO for protection of broadcasting organizations. I’ll highlight that there is a compelling need for India to support the WBT.
On a general reading of India’s official statement at the last two SCCRs, it’s clear that India is…
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.