Many of you may be wondering about my deafening silence on the 2016 Special 301 Report, which I’ve otherwise been aggressively pursuing. (For more on the Special 301, see my posts here, here, here and here). Unfortunately, even after a fortnight, the transcript and the video of the public hearing has not yet been released. This is somewhat strange considering that the video for the 2015 Special 301’s public hearing was uploaded within 9 days of the hearing. Hopefully, by this week, we should see it’s release.
(I) The Trademark Working Group : It brought to the Committee’s notice, the increased costs incurred by a U.S. company to the tune of $ 3,515 as Attorney’s Fees in India due to an absence of multi – Class applications for trademark registrations.
(II) The Union for Affordable Cancer Treatment (UACT) : It countered PhRMA’s demand of India being placed on the Priority Watch List due to it’s unpredictability of issuing compulsory licenses on essential life- saving cancer drugs.
(III) The Global Intellectual Property Center (GIPC) : It highlighted the issuance of final Guidelines for Examination of Computer Related Inventions ( “CRI”) by the Government of India. According to GIPC, this denial of patents to all computer related inventions was contrary to prevailing international norms.
Needless to say, I’ll bring forth my views on the public hearing after it’s release.
Truth will out. The above statement from UACT’s testimony to the 2016 Special 301 public hearing held on March 1, 2016 reaffirms that though delayed, truth ultimately prevails.
The public hearing for the 2016 Special 301 was held on March 1, 2016 at the USTR. As much as I had wanted to, being a weekday I was unable to attend it. As of today, the recording and the transcript of the hearing has not yet been released by the USTR (Perhaps today being the last day for submission of the supplemental information including written responses. For a timeline of the 2016 Special 301 Process, visit here).
From whatever is available in public domain , I’ve built up a picture of the public hearing. I’ve highlighted some pertinent points which have an influence in determining India’s designation under the Report. (For more on Special 301, see my posts here , here and here)
THE HEARING :
Traditionally, the public hearing commences with foreign governments designated as Watch List (WL) countries pleading to the USTR to get off the list.
Governments of Bulgaria, Czech Republic and Ukraine had ten minutes each to testify. Not being designated as WL, Government of India did not testify.
Only information pertaining to testimonies of AFTI, KEI, Internet Association, UACT and USIBC is available. I’ve tried summarizing their arguments (the portion focusing on India) –
(i) AFTI – Not to my surprise, it testified that India should be placed on PWL with a rigorous Out- Of- Cycle Review. Considering it’s members (or rather cosy coterie), it played the usual rhetoric of – (a) Weakness in India’s copyright system (b) Use of compulsory licenses and (c) Additional patentability criteria.
(ii) KEI – Jamie Love testified on PhRMA’s, BIO’s and GIPC’s written submissions to the USTR which lashed out at India’s pharmaceutical patent regime. His defensive statement goes well with the proponents of access to affordable healthcare –
“A number of the submissions supported by the pharmaceutical industry have targeted India. India is important both because it is a large country with more than a billion persons, and because it is frequently looked to as a supplier of affordable generic products in other countries.
KEI is working on compulsory licensing cases in several countries, and like others will look toward India to play a role in providing a supply of products.“
He also made a cursory remark on sourcing prostrate cancer drug Xtamdi’s generic from India.
(iii) Internet Association – Ellen Schrantz testified for the inclusion of following three points in the 2016 Special 301 Report
(a) Support Balance in Copyright : Limitations and Exceptions
( Support for fair use and other exceptions)
(b) Ancillary Copyright Laws : Issuance of warning to States that had enacted or were about to enact ancillary copyright laws.
(c) Domain Name Registrars : Distant intermediaries not to be reassigned IP enforcement responsibilities.
Though Schrantz’s did not testify, Internet Association in it’s written submission has made an objection to India’s copyright regime. It relates to the absence of a clear safe harbor framework for online intermediaries.
(iv) U.S. – India Business Council (USIBC) – As per Buruc Kilic‘s tweet, USIBC in it’s testimony proposed for the introduction of patent linkage in India.
(v) Union for Affordable Cancer Treatment (UACT) – Last to testify, it came out strongly against PhRMA’s misrepresentation of the WTO rules on the issuance of compulsory licenses during national emergencies ( As evidenced by the opening quotation of this blog post.)
It also lauded Indian Supreme Court’s rejection of of the Bayer appeal of the Nexavar compulsory license.
To the best of my knowledge, this is all that is available in the public domain for now. If any one of you attended the public hearing or happen to be in possession of it’s transcript, please feel free to share.
Once the recording is released by the USTR, I’ll run through the entire testimony on ISGLP’s IPR blog.
Last year when soliciting feedback on my blog, my dear friend Pratik Sanwaria had asked me to cover the Special 301 Process. That time, I procrastinated his cogent suggestion even though the India – U.S IPR standoff is of immense interest to me.
The blog post titled, ” India’s Tryst With the Special 301 Process : The Story Until Now and Future” can be read here. Due to technical constraints, currently there is neither a comments section nor social media icons to share the post via ISGLP’s blog. Thus, for wider dissemination and constructive feedback, kindly use this platform.
I’m also in the process of writing a paper critically analyzing India’s designation under the Report since it’s inception until 2016. Once published, I’ll share it.