A Third IP Index : International Property Rights Index

In past, I’ve blogged about IP Indices. (See herehere and here). However, most conversations about IP Indices revolve around the GIPC’s International IP Index and USTR’s Special 301. Often, an index which misses attention is the International Property Rights Index (IPRI). Its all comprehensive nature, not merely confined to intellectual property being the plausible reason.

What is the IPRI? 

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).

Image Courtesy : Property Rights Alliance 

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 –

(i) Coverage

(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’s  8th 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.


Year Overall Score Overall Rank Number of Countries Evaluated IPR Score IPR Rank
2007 5.2 33 70 4.4 N/A
2008 6.2 40 115 5.2 47
2009 5.6 46 115 5.1 49
2010 5.5 53 125 5.3 50
2011 5.6 55 129 5.5 51
2012 5.4 62 130 5.4 55
2013 5.5 58 131 5.6 56
2015 5.2 62 129 5.3 52

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.




India and the WIPO Broadcasters Treaty : Past Position & Future

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.

The webcast of the 32nd SCCR is available here. The eight hour long negotiations on the WBT continued until the morning of Wednesday, 11th May’16 (first seven webcasts from the top).  I’ve jotted down some rough notes based on the webcast of the negotiations on the Revised Consolidated Text on Definitions, Object of Protection and Rights to be Granted.

Source: India and the WIPO Broadcasters Treaty : Past Position & Future

Public Interest Organizations and the 2016 Special 301 : An Indian Perspective


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 –

(a) The Union for Affordable Cancer Treatment (UACT)

(b) Knowledge Ecology International (KEI)

(c) Program on Information Justice and Intellectual Property (PJIIP) of the American University Washington College of Law

(d) Public Citizen

(e) Misin Salud, Karisma Foundation and the Ifarma Foundation (Colombian Civil Society Organizations).

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.

Image Courtesy : Union for Affordable Cancer Treatment

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.

Knowledge Ecology International
Image Courtesy : Knowledge Ecology International 

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.

Public Citizen
Image Courtesy : Public Citizen 

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). 

PJIIP (Final)
Image Courtesy : PIJIP

Responding to USTR’s question (on listing countries identified by it in the Report), it called upon the discretionary areas of the Report to 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.


Tale of True IP Indices or Cosy Camaraderie : The Special 301 and the International IP Index Nexus

GIPC’s Perspective on the Difference Between the Special 301 and the International IP Index 

The Global Intellectual Property Center (GIPC) in its submission to the USTR for the 2015 Special 301 differentiated between the Special 301 and the International IP Index as –

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.

Tale of True IP Indices or Cosy Camaraderie : The Special 301 & the International IP Index Nexus

India’s National IPR Policy Released

Only those who own monopoly love monopoly, balancing is required on public health.” remarked Finance Minister Arun Jaitley while unveiling the long awaited National IPR Policy.

The press release can be read here  and the Policy is available here. I’m yet to go through it and will thus reserve my comments for the time being.

My previous posts on the Draft National IPR Policy can be read here, here and here.

India and the WIPO Broadcasters Treaty : Past Position & Future

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.

Seemantani Sharma

Background :

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.


Past Position: 

On a general reading of India’s official statement at the last two SCCRs, it’s clear that India is…

View original post 774 more words

India and the 2016 Special 301 : Summary of Issues Highlighted

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

Image Courtesy : www.catchnews.com


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 Secret

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.





Tale of True IP Indices or Cosy Camaraderie : The Special 301 & the International IP Index Nexus

Annually, the United States of America releases two IP indicators of countries which falls short of its standards of IP protection. First being the International IP Index (the Index) by the Global Intellectual Property Center (GIPC) around February of each year. Followed by the paper tiger instrument called the Special 301 Report by the Office of the United States Trade Representative (USTR) around the last week of April. (For more on the Index, see here and on the Special 301, see here).

 In this post, I want to highlight the close nexus between these two indices with a special reference to this year’s Index and the Special 301 Report.

The Differences : 

The Index was devised as a road map for countries to formulate IP related policies that would enable them to reach their full innovative and economic capabilities. While, the Special 301 Report assess the IP regimes of U.S’s trading partners which act as trade barriers for its corporations. Thus, while the former is an economic parameter, the latter is a political one (even though toothless – being violative of the WTO Dispute Settlement Process. Read more on this here).

The Index is an academic exercise aimed at studying the benefits accruing to a nation’s economy on account of a robust IP regime. On the other hand, the Special 301 surveys IP policies of nations to determine losses to its corporations. With slight restraint, I’m tempted to say that the Index is merely persuasive in value, while the latter is a coercive “paper tiger” instrument ( the legality of the Special 301 Process being questionable. Read more on this here).

The ambit of the Special 301 is much wider than the Index. This year, the USTR analysed IP regimes of 73 trading partners while the GIPC mapped the IP environment of 38 economies of the world. However, with respect to subject matter, the Index has a wider reach. It’s based upon 30 indicators spanning six categories – patents, copyrights, trademarks, trade secrets, enforcement, and international treaties. Further, not only does the Index measure the IP strength of a nation but also gauges the benefits accruing from those strengths.

Featured Image -- 2611

The Nexus or the Cosy Camaraderie : 

The objections raised by both these indices this year with respect to India bear close semblance.  A plausible reason could be that the  Index uses the Special 301 as a source for arriving at its findings and vice – versa.

Further, at the release of this year’s Index,  Professor Meir Pugatch (the brain behind the Index) was questioned  on the interplay between the two indices. To which, he replied that though there were many overlaps between the two, the Index reflected the overall sentiment of its members (basically  the U.S. corporate interest) while the Special 301 took into account diverse stakeholders.

This raises an eye – brow, for the prevalent extent of lobbying by U.S. trade groups is no secret. Professor Peter Drahos’s articulation on the Special 301 in his treatise the Information Feudalism is noteworthy. According to him, the Special 301 was  “a public law devoted to the service of private corporate interests.” (Page Number 89).

This is corroborated by the statistics compiled by the American University’s Program on Information Justice and Intellectual Property. According to it, in the 2008 Special 301 Report, 86% of the nations singled out by the IIPA and 75% of the nations singled out by PhRMA were in that year’s Report.

Key Area Similarities Between the 4th Edition of the International IP Index and the 2016 Special 301 Report :

  • Non – conformance of patentability criteria to international standards.
  • Absence of regulatory data protection and patent term restoration.
  • Unfair and arbitrary policy on issuance of compulsory licenses.
  • Not a contracting party to major international treaties such as the WIPO Internet Treaties, the Singapore Treaty on the Law of Trademarks and the Patent Law Treaty.

Global IP Index

Differences : Concerns Expressed in the Special 301 but not in the International IP Index

  • Proposed amendments to patent rules incentivizing localized manufacturing.
  • With respect to the pharmaceutical industry, lack of protection against unfair commercial usage.
  • Lack of effective notification system for marketing approval for generics.

Differences : Concerns Expressed in the International IP Index but not in the Special 301

  •  Copyright related issues – (i) Term of protection (ii) Legal measures providing exclusive rights for preventing infringement of copyrights and related rights (iii) Scope of limitations and exceptions (iv) Absence of a Digital Rights Management Legislation (v) Absence of implementation of policies requiring proprietary software used on government ICT systems to be licensed software.
  •  Trademark related issues – (i) Term of protection and renewal period (ii) Non – discrimination and non-restriction on the use of brands in packaging of different products (iii) Ability of trademark owners to protect their trademarks (iv) Legal measures for redressal for  unauthorized usage of trademarks (v) Availability of frameworks for promoting action against  online sale of counterfeit goods.

GIPC’s Submission to the USTR for the 2016 Special 301 replicates the issues raised by it in the Index. Though distinctive in their nature, India related findings of both the indices are very similar particularly in the patent sphere. Thus, indicative of the partisan nexus between them. Professor Drahos elucidating this cosy camaraderie as –

By the early 1990’s the USTR, the intellectual property lobby and the companies for which they worked had a closeness borne of participation in a common crusade.

This makes me ponder whether stakeholders barring the lobbyists (public interest organizations, academic institutions and foreign governments) have a real say in the Special 301 Process? I think not.




Horror Revisited: USTR Unveils the 2016 Special 301 Report

PhRMA’s official statement is now available on its website (though in the USTR’s press release, it finds no voice). On India’s IP regime, keeping up to its banality, it states –

India’s barriers to U.S. trade and investment, including its failure to respect intellectual property rights, continue to harm biopharmaceutical innovators and many other industries across the United States and around the world. While biopharmaceutical innovators saw potentially positive signs from the Indian Government in 2015, translating these positive statements into concrete progress has remained a challenge. PhRMA members welcome USTR’s decision to maintain India on the Priority Watch List and the emphasis the Special 301 Report places on achieving substantive and measurable results. Sustained engagement is essential to promote meaningful reform of India’s patent laws and policies.

In a series of posts, I’ll do a section wise analysis of India’s designation under the Report. I’m particularly keen to see how far PhRMA’s comments to the 2016 Special 301 were taken into account by USTR. Though, its no secret that USTR is the mouth – piece of the Washingtonian lobbyists.

Source: Horror Revisited: USTR Unveils the 2016 Special 301 Report

Horror Revisited: USTR Unveils the 2016 Special 301 Report

Almost coinciding with the World IP Day (which was yesterday), the USTR has unveiled the much awaited 2016 Special 301 Report. I’ve extensively covered the Special 301 in my previous posts. (See here, here, here, here, here ,here and here).

 Not to anyone’s surprise, India is on the Priority Watch List with the USTR retaining an option of conducting an Out- Of- Cycle Review (OCR). OCR depending upon either positive or negative developments warranting a review prior to the annual cycle. Basically, much would depend on India’s National IPR Policy, which by now should have been released. (Well beyond the “fortnight” timeline, I wonder behind which veil is the Policy shrouding!)

In the press release, the usual industry representatives (RIAA, MPAA and ETA) have voiced the importance of IP to American innovation ecosystem. Though, the deafening silence by PhRMA in the press release is somewhat surprising.

Skimming through the Report, I’m awestruck with India figuring in the list of ” Best IPR Practices by Trading Partners”   (Page 10 of the Report). It finds mention in the sub- section on “predictability, transparency, and meaningful engagement between governments and stakeholders.”  Exemplifying on this parameter, the Report states –

USTR supports predictability, transparency, and meaningful engagement between governments and stakeholders in the development of national laws, regulations, procedures, and other measures. Stakeholders report that such transparency and participation allow governments to avoid unintended consequences and facilitate stakeholder compliance with legislative and regulatory changes. For example, in late 2015, India issued a draft for public comment of proposed amendments to India’s Patents Rules and held hearings with interested stakeholders. USTR encourages continued, meaningful engagement with interested stakeholders as India continues to develop these and other IPR-related laws and regulations.

Lauding the robust bilateral engagement between the two countries on vital IPR issues, concerns over the following issues (rather rhetoric) have been expressed – (Country wise report on India runs from page number 38 to 45)

  1. Proposed amendments to the Patent Rules.
  2. Unpredictability in application of S. 3(d) of the Indian Patent Act, 1970.
  3. Opaque procedure for soliciting comments for issuance of guidelines on the patentability of computer-related inventions.
  4. Patent related challenges to the pharmaceutical industry – (i) Unpredictability and irregularity in the application of Section 3(d) of Indian Patents Act (ii)  Lack of effective protection against unfair commercial use (iii) Ambiguous standards for issuance of compulsory licenses under S. 85 and 92 of the Indian Patent Act (iv) Lack of effective notification system for marketing approvals for generics.
  5. High levels of piracy and counterfeiting.
  6. Absence of legislative protection for trade secrets.
  7. Non – ratification to major international IPR treaties such as the WCT, the WPPT, and the Singapore Treaty.

Priority to these issues shall be revitalized by entering into a dialogue with the IP Working Group.  For the benefit of readers, the IP Working Group (formally known as the High Level Working Group on Intellectual Property)  was established by President Obama and Prime Minister Modi.

In a series of posts, I’ll do a section wise review of India’s designation under the Report.