A policy without intellectual clarity

Srividhya Ragavan | Updated on January 20, 2018


The IP policy is all for turning knowledge into IP assets, not realising that public access and equity are central to creativity

It was an event ominously scheduled for Friday, May 13. Titled as the National IPR policy (IP Policy), Department of Industrial Policy & Promotion, Government of India released the 28 page document that will promote “creative and innovative” India. At first glance, the policy certainly reflects invested effort and interest. Yet, the document begs the question of “why a policy on IPR” and “why now.”

Generally, policy documents signify a way forward before major amendments are executed. Considering that only a few years back India went through extensive legislative activity amending its patent, copyright, trademarks and design law, the reason for the current policy initiative remains unclear.

Maybe, the Prime Minister’s US trip, which begins on June 4, provides a reason. But Obama is a lame-duck president. Even the US Constitution under the 20th Amendment recognises that during the last year of an official’s term, the executive wields less influence with other politicians due to their limited time left in office. There should never be a need for India’s Prime Minister to create policy documents to please the president of the United States. What’s more, this certainly is not such a moment.

While the effort involved in creating this document is commendable, it leaves much to be desired. For instance, the document’s objective that knowledge should be viewed differently and transformed into IP assets dangerously discounts the need for a robust public domain which is critical to enhance creativity.

IP obsession

The suggestion in a national policy to “spread the importance of IP rights” by using “eminent personalities as ambassadors” reflects a deplorable level of over-anxiousness on the part of the Government to promote private rights.

The document’s further suggestion of adopting a “Creative India” slogan sounds naïve, to say the least. Intellectual property policies are not exercises in publicity.

Nor can governments act as champions and flag-bearers for creating private property rights, which is what this policy seems to suggest.

Instead, Government policies should establish appropriate standards to facilitate IP protection while balancing it with carefully calibrated filters to ensure that access to public goods such as medicines, health technologies, food security and environmental safety are not unduly impeded.

I am opposed to the policy’s objective of working with IP owners to commercialise IP. It is important to educate small and medium scale enterprises on commercialisation of IP.

But it should not be a policy initiative of the Government to help private IP owners improve the market for their product.

Intellectual property rights are premised on the assumption that the market determines that value of the innovation. That the Government interferes to help the market determine a value of private property sounds inappropriate and does not serve a public purpose.

Use of public funds

Unfortunately, a lack of a balanced approach to creating IP rights is further reflected in the second policy objective of generating more IP, which, among other things, enthusiastically encourages public funded research institutions to generate more IP.

The Preamble of the Indian Constitution highlights economic and social justice. India’s IP policy seems to posit that in Creative India, economic justice will be social justice.

Interestingly, recently in March, 2016, Royalty Pharma in the US entered into an agreement to acquire rights over Xtandi, a prostate cancer drug.

The agreement involved the creator and co-owner of the drug, University of California, LA involving a cash payment of $1.14 billion and potential additional payments based on future sales.

Even in the US, a group of Senators along with Representatives pressured National Institute of Health to take steps to reduce the price of drugs, considering that it was developed using federal money generated from tax payers.

India’s over enthusiasm for promoting IP rights should not discount the reality that even in the US, there is an outcry to balance social and economic justice.

In the segment relating to legal and legislative framework, the policy admirably reiterates that India will utilise the flexibilities available in international agreements and reaffirms its commitment to the Doha Declaration on TRIPS Agreement and Public Health.

Unfortunately, instead of discussing how the carefully instituted flexibilities have and will continue to posit India in a superior position as the pharmacist of the world, the discussion digresses towards protection for traditional knowledge in a policy discussing IP rights.

Merging traditional knowledge with other IPs sounds like raising issues about class the performance of a child who is yet ineligible to be enrolled in school.

This is premature, distracting and undermines India’s previously well-crafted positions on IP rights, particularly patents.

In fact, the status quo is that traditional knowledge is not universally recognised as an IP yet. At this point, it is important that India clearly demarcates its fight to protect traditional knowledge from policies that are carved for other recognised forms of IP.

Administrative reform

Similarly, the policy’s objective of strengthening administration and management of IP offices is a commendable and important. Backing this objective with a study outlining the cost of such an exercise would have helped.

I do not mean to undermine the importance of modernising and making the IP offices more efficient. But a reasoned study which appreciates the cost, constraints and competing concerns would have given credibility to this well-meaning suggestion.

If India channels resources into modernising IP offices, tax payers have a right to know what other, if any, projects will be affected. Similarly, the objective of strengthening enforcement and adjudication of IP rights sounds hollow when it states that IP disputes should be adjudicated through “commercial Courts, set up at appropriate level.”

It begs the question of why “commercial courts and appropriate levels” were not fully considered when valuable tax payer resources were invested previously to establish the Intellectual Property Appellate Board.

The policy promotes resolution for IP Disputes using alternate dispute resolution mechanisms. First, choice of dispute resolution should be entirely left to parties. Next, in India, being an arbitrator notoriously signifies that the individual is either well-networked or is a retired judge or Government official trying to stay busy.

It is not a reflection of one’s ability or expertise in the field. In all, a robust IP policy will have to take a holistic approach to issues that clog creativity. The one thing the policy is dead right about is that India is indeed a hub for creativity and Indians are absolutely world-class creators.

India’s policies should not squander the immense intellectual wealth that this country represents.

The writer is a professor of law at Texas A&M University School of Law

Published on June 02, 2016

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