NATIONAL LAW UNIVERSITY JODHPUR

GENERAL PRINCIPLES OF INTELLECTUAL PROPERTY

RIGHT
GROUP PRESENTATION (CA III)

Criticism of India Intellectual Property Law

Submitted to - Submitted by-

Associate Prof. Dr. Gargi Chakrabarti Parikshit Shukla 1281
Faculty of Law Utkarsh Saxena 1289
National Law University, Jodhpur Akash Anurag 1266
Aditya Prakash 1296
Group 8 (Section A)
UG Semester V
 INTRODUCTION

Intellectual property (IP) regimes suffer a classic paradox. While they attempt to encourage

innovation and creativity, they have themselves been shielded from innovation

experimentation. For some years now, India has been attempting to break this mould and craft

a regime to suit its own distinctive set of concerns. Section 3(d) of the Patents Act, 1970, was

a bold attempt in this direction, aimed at eradicating evergreen drug patents.

Sadly, this distinct attempt at diversifying a problematic global IP script is slowly yielding to

larger market forces. It is reinforcing a realpolitik predicated to a large extent on various

campaign contributions flooding the coffers of candidates striving to lead the most powerful

democracy of the world, namely the U.S.

Even though the efforts put in by high powered committees to formulate the document are

commendable, the basic thrust in it raises more doubts than it seeks to resolve. For instance, it

specifies that all knowledge should be transformed into IP assets. It suggests that national

policy should spread the importance of IP rights by using eminent personalities as

ambassadors. Sadly, it betrays an imbalance in the IPR regime that can tilt the balance away

from access to important public goods. There is by and large agreement among economists and

the scientific community that IPR in itself has limited ability to promote innovation.

The policy further lays undue emphasis on publicly funded research institutions such as those

under the Council of Scientific & Industrial Research (CSIR) to generate more property rights

through IPR. India needs a clear vision and guidelines on how scientists work using public

money can be commercialised and covered through IPRs. The policy in its current form fails

to take note that an IPR policy has to balance the concerns of all stakeholders in a reasonable

manner and may not be seen as an instrument offering absolute protection for products in the

market. In the US, a group of Congressmen has exerted pressure on the National Institute of

Health (NIH) to ensure drugs developed by federally funded projects are sold at a reasonable
price. The best aspects of the document are contained in the third objective discussing the legal

and legislative framework. It reiterates that India will utilise the flexibilities available in

international agreements and reaffirms its commitment to the Doha Declaration on Trade-

Related Aspects of Intellectual Property Rights agreement and public health. Unfortunately,

instead of discussing how the carefully negotiated flexibilities have afforded a strong position

to India as the pharmacist of the poor world, the document strays into a discussion over

protection for traditional knowledge. Merging the debate over traditional knowledge with IPR

or TRIPS is incongruous. It is also premature inasmuch as it distracts or even undermines

Indias previously well-crafted positions on IPRs. Unfortunately, traditional knowledge is not

universally recognised as an IP right yet. Therefore, it is important that it should not be linked

to existing IP rights and the fight for protection to traditional knowledge should be clearly

separated from the current debates on IPRs.

The need to strengthen the management of IP offices is commendable. But, without a proper

cost benefit analysis, the well-intended suggestion loses its relevance. Elsewhere, it suggests

that IP disputes should be adjudicated through commercial courts, set up at the appropriate

level. But the document fails to note the fate of the Intellectual Property Appellate Board, now

an orphaned child, which was established under external (read US) pressure. Promoting and

creating IP is not an exercise in realigning a few pieces of a puzzle. It requires broader

understanding of the competing issues. The policy document is right in its emphasis and the

pride it takes in India as a creative hub. A policy that uniquely posits IP as the central fulcrum

or the key to innovation lacks a holistic understanding of the complexities attached to

science/knowledge generation and how IP laws and norms impact them.

 IP AND INNOVATION

On the face of it, a policy to grow IP, commercialise it, and thus drive economic growth sounds

plausible. Unfortunately for us, it is not. First, innovation thrives in an environment where

access to knowledge is real and substantial. We need knowledge to make knowledge. A key

driver of access is openness. The Indian government, as the largest funder of research in the

country, could have mandated that this research be made accessible to scholars through open

copyright licensing, but has chosen to abdicate this responsibility. Second, while innovation is

a desirable economic goal for any society, the academic consensus is that IP is not a good

measure of innovation. Innovation is largely driven by forces other than IP law, and the policy

shows no signs of understanding this tenuous connection. Third, conflating IP with innovation

can be dangerous. IP signifies activity the activity of producing IP. For this activity to be

useful, it must generate value in a society, by being commercially or otherwise licensed and

brought to market.

What does a reckless policy of confusing IP for innovation lead to? Something like the situation

with the Council for Scientific and Industrial Research (CSIR) today: lots of patents, lots of

money spent on those patents, and little to show beyond the noise. CSIR has been lauded for

the number of patents it holds. These patents all 4,500 of them are touted as evidence of

a public institution that is innovating. CSIR claims that many of these patents have been

licensed, but refuses to reveal if it has earned anything from these licensees. While we do not

know if CSIR has earned a single rupee from patenting, we do know what CSIR spent on

patenting: Rs.74 crore over a period of 10 years, and thats not counting the huge overheads

incurred in the process such as salaries and research costs. Still, those patents have done their

job. On paper, the institution is considered a remarkable success story of innovation. In

practice, however, it is hard to see how CSIRs senseless patent quest can be considered

anything other than a massive waste of public money.

 TRADITIONAL KNOWLEDGE

If there is one thing the National IPR Policy is more concerned with than awareness, it is

traditional knowledge. (Our traditions are invoked 22 times through the document.) This is a

chestnut so old, it has become positively stale. The charge that IP is a neo colonial conspiracy

to appropriate and pirate our ancient knowledge is one that has found echoes in India at least

since the 1980s. This report appears to turn that charge on its head by now concluding that the

heart of domestic innovation lies in the remaking of our traditional knowledge as IP.

This change in perspective is not grounded in any analysis of existing efforts to protect

indigenous knowledge. Our Geographical Indications law has been in force for 15 years, and

government initiatives to increase registrations have been reasonably successful. The

Biological Diversity Act is of similar vintage, but has only been enforced with seriousness in

the present decade. Have these laws resulted in substantial benefits to any community which

originated a form of traditional knowledge? Has legal protection spurred the regeneration of

traditional knowledge? In the absence of concrete evidence that either objective has been

satisfied, it is unclear why India should carve out larger property protections in this domain.

Organisations like the World Intellectual Property Organisation (WIPO) would probably be

happy if we did; they want us to believe there is a pot of gold at the end of that rainbow. But

there is no gold, so we will not find it. What rich countries know is that our quest to protect

traditional knowledge will ensure that we remain enthralled by the IP myth, thereby allowing

their own IP to lucratively flourish in poor countries around the world.

The National IPR Policy makes it clear that we will not roll back any aspects of Indian patent

law, which was amended in 2005 to comply with World Trade Organisation (WTO) rules. For

this strong statement, the authors of the policy must be congratulated it is perfectly correct

to assert that our laws are compliant with the WTO, however much they might rankle the U.S.,

the EU, and other rich countries. Unfortunately, almost every other assertion in the policy
contradicts the principles espoused in our patent law. The Indian patent law extols a philosophy

of minimalism less is more. With the new IPR policy, this minimalism is now inexplicably

shrouded in a cloak of maximalism, the lesson apparently having been revised to mean more

is more.

The most significant achievement of the 2005 amendment to our patent law was a high bar for

innovation, thereby restoring sanity and balance to a system run amok: it was designed to

reward real innovation, rather than the tweaks pharmaceutical companies the world over use to

justify extending their monopolies and their high prices. The Indian system of supporting

both innovation and access to medicines was an innovation in law-making, and after a long,

hard, slog, culminating in a Supreme Court ruling in April 2013 that ratified our law, the world

sat up and took notice. Later that year, South Africa announced its decision to amend the

countrys patent law along the lines of Indian law, and Brazil launched a bill supported by the

then ruling Partido dos Trabalhadores, with exactly the same intent. To follow through, what

these countries require is the unwavering confidence of the Indian government in its own patent

law. Unfortunately, you would have to read between the lines to find that confidence in this

policy. This is a shame, for we could have used our patent law to take a bold, strong leadership

position across the world.

Indias first IPR policy was an opportunity to embrace the spirit of Indias innovative patent

law, as well as the collective systems of knowledge we have fostered through millennia, which,

taken together, emphasise innovation, access and openness. Indias National IPR Policy fails

to grasp this opportunity. Instead, it trots out the worn western fairy tale that more IP means

innovation, encourages the pointless privatisation of indigenous knowledge, and egregiously

fails innovation by doing nothing to make public research accessible to the people who pay for

it.
 FLAWED FOUNDATION

Indias recently unleashed IP is the one that, at best, repeats ad nauseam the various

platitudinous phrases around intellectual property. That it is meant to foster innovation and

creativity. That it must be balanced against public interest and public health. And that the

Agreement on Trade-Related Aspects of Intellectual Property Rights or TRIPS is the

benchmark and that India is compliant with relevant international norms.

And yet, at worst, the policy represents an extreme excess in terms of its one-sided view of IP

as an end in itself. And therein lies the greatest flaw. The policy fails to situate IP within the

larger context of the innovation ecosystem, refusing to acknowledge that while IP could

accelerate innovation in certain technology sectors, it impedes innovation in others. This is a

truth touted not only by those labelled as left-liberal ideologues, but powerful industry giants

facing the brunt of a promiscuous patent regime renowned giants such as Teslas Elon Musk

who have either eschewed patents or dedicated them to the public domain.

And yet the entire edifice of the present IP policy is built on this flawed foundation equating

more IP with more innovation. The policy sounds almost militant when it proposes that despite

our ancient laudable heritage where knowledge was freely and extensively shared, we must

now make amends and convert each piece of our knowledge into an IP asset. This flawed frame

results in a number of problematic assertions in the text of the policy.

It advocates that publicly funded scientists and professors must compulsorily convert all of

their discoveries into IP assets, much before they have even written this up and published it in

reputed science journals and that their promotions be predicated on the number of IP

applications made. A hark back to the past would reveal that visionary scientists such as

Benjamin Franklin and, closer home, our own J.C. Bose shunned patents owing to their

potential to curb the free flow of knowledge. We must encourage a plurality of approaches

when it comes to IP and innovation; our scientists should be free to take this call on whether
or not they wish to register IP. Doing so for the mere sake of it is stupid, quite apart from the

fact that on an empirical cost-benefit analysis, most U.S. universities lose more money on IP

registrations than they make through IP royalties.

The policy needs to be commended for taking note of our informal (rural) economy and the

need to encourage the prolific creativity found within. Unfortunately, far from understanding

the drivers of creativity and the modes of appropriation/sharing in this shadow economy, the

policy leans towards the superimposition of a formal IP framework on this marginalised sector.

Lastly, much in line with its powerful IP rights-centric approach, the policy recommends that

the unauthorised copying of movies be criminalised. No doubt Bollywood requires some

protection from pirates, but criminalising what is essentially a civil wrong (much like

defamation) is tantamount to killing an ant with an elephant gun, not to mention the potential

for abuse at the hands of our police.

CONCLUSION

Indeed, the present policy could well be the classic poster child for IP formalism. We had

expressed caution against such a reductionist view in the first draft of the IP policy formulated

by a think tank (of which I was part). Unfortunately, the government unceremoniously

disbanded our committee after we submitted the policy and disregarded our exhortation to

conceive of the policy as a more broad-based and holistic Innovation Policy.

Granted, India is lagging on several counts. When compared with its glorious past boasting

pioneering innovations from the likes of Sushruta (the father of modern surgery) and Nagarjuna

(metallurgy), India has hardly had any noticeable technological marvels in its recent history.

But is the problem with the countrys IP regime? Or does the malaise lie elsewhere? Could it

be cultural, where parents put undue pressure on their children for that fat salaried job, as

opposed to a risky entrepreneurial venture? The policy advocates that IP be taught in schools
and colleges. But why? What we need in schools and colleges are courses on creativity, not on

IP. Even if we lack resources to impart specific courses on creativity, lets at least ensure that

we dont stand in the way of a natural flowering of creativity in our children. A truth tellingly

captured by Mark Twains sentiment: I have never let my schooling interfere with my

education. And one that is now being controversially tested by Peter Thiel (PayPals legendary

founder) who pays college students to drop out of college and run risky ventures.

Unfortunately, notwithstanding some of its praiseworthy proposals, such as expedited

examination, an IP exchange and the proposal to encourage Corporate Social Responsibility

funds into open innovation, this much-awaited IP policy is terribly short-sighted.

Many decades ago, a two-member committee (headed by Justice N.R. Ayyangar)

conceptualised a patent policy that formed the blueprint of the present patent regime. It was

one that triggered the remarkable growth of our pharmaceutical industry, enabling it to earn

the moniker pharmacy of the world. It was a policy that was thoroughly researched,

empirically validated and elegantly written in a little over a year.

Compare and contrast that with the present policy that took more than two years and two

separate think tanks to come to fruition. One beset with banality, dogged by dogma, rife with

ridiculous assertions, lacking in any credible empirical support, and written in language that,

at best, mimics a masterful memo from one bureaucrat to another.