Aristotle once remarked, “Patience is bitter, but its fruit is sweet”. This quote has proved to be hundred percent true with respect to the National IPR policy, 2016. This much awaited policy finally received the cabinet approval on 13th May 20, 2016 and managed to garner a positive response from all the sectors. This all encompassing policy aims at establishing a holistic atmosphere, conducive for exploiting the full potential of intellectual property, for the economic, social and cultural development of the nation. The policy is one of its kind, which involves every conceivable sector, right from a village industry, to an academic and research institution in the process of successful creation and utilization of IP on one hand, while balancing public interest on the other. India has a plethora of creative and innovative energy flowing ruthlessly, which if channelized correctly, will result in a global transformation of its economy. This has been rightly recognized by the said policy which provides for seven broad objectives, which are explained below in necessary detail, with the ultimate aim of developing an ‘Intellectual Economy’.
1. IPR Awareness: Outreach and Promotion.
The success or failure of any idea depends to a large extent on its outreach. How far the idea is successful in reaching the targeted segment, the strategies involved in promoting and popularizing the same, go a long way in defining the people’s reaction and their acceptability towards any novel idea. This aspect has been rightly recognized as the prime objective of the policy. Gone are the days when ‘Intellectual Property’ was a mere topic of academic interest, or a rung in the ladder of success for the rich corporate. Today, in a country like India, with its rich and vibrant flow of creative and innovative energies, where many of the IP holders are either unaware of their capabilities to create an IP, or about the social, cultural and economic benefits of IP rights, or even worse are miffed off by the complexities involved in creating defendable IP rights, it is time to dispel this wave of ignorance and unearth the lost treasure of knowledge and creativity which lies trapped in the graves. The initiatives suggested to achieve this end include among others:
- Adopt the slogan ‘Creative India; Make in India’
- Organization of a nationwide program to create awareness about the benefits of IPR’s, thereby fostering an atmosphere of creativity and innovation in the public and private sector, R&D centers, industries and academic institutions.
- Formulating customized programs for the different segments. i.e MSME’s, startups, R&D centers, entrepreneurs, individual creators and so on.
- Special focus on the untapped rich heritage lying in the ‘less visible’ rural areas, by interactive campaigns, and other strategies, to instill the importance and benefits of IP among the rural masses.
- Create awareness programs specifically targeting the industry and R&D entities, by providing them a deeper insight of IP protection and registration, and engage public funded and private research organizations, MNC’s and corporate in the process.
- Include IPR’s in school curriculum at the appropriate level.
2. To stimulate the creation and growth of IPR’s through aptly customized and strategized measures.
After organizing diligently customized awareness and outreach programs, the next objective identified by the policy is to generate an atmosphere conducive for the creation and growth of IP’s. India is a treasure house of knowledge, with its talent pool spread across variety of sectors ranging from small village enterprises like handicrafts, pottery, artecrafts etc, to R&D institutes, universities and technical institutes. The need of the hour is to unfreeze this fertile knowledge, and actively involve the prospective IP holders in the process of IP creation, by identifying their needs, and formulating appropriate measures to aid the process. The steps suggested to achieve this end includes amongst others:
a. Suggests formulating comprehensive IP audits across different sectors, to identify areas of strength and potentially viable areas, so as to formulate specific programs fostering IP creation.
b. Financial incentives in the form of:
- Reduced transaction costs linked to IP creation, right from its generation to commercialization in case of startups and grass root innovators.
- Tax benefits to promote R&D.
- Easy availability of loan guarantee schemes in order to encourage startups.
- Infusion of funds into public R&D units as part of corporate social responsibility.
c. Include IP creation as a performance metric for public funded R&D entities as well as Technology Institutions.
d. Expand the ambit of the ‘Traditional Knowledge Digital Library’(TKDL).
3. To have strong and effective IPR laws, consistent with national priorities and international obligations, which balance the interests of rights owners with larger public interest.
The optimal use of the vibrant flow of creativity, innovation and knowledge can only be achieved if it is backed by a strong and balanced legal framework, compliant with the various International Treaty obligations, flexible and continually updated with the changing circumstances and the need of the hour. This has been aptly recognized in the as the third objective of the policy, which amongst others provides for the following initiatives:
- Review existing IP related laws and rules, update them periodically whenever and wherever necessary to remove inconsistencies if any, and to promote transparency of operations.
- Provide for policy development in the area of protection of trade secrets, and also provide suitable legislative framework for technology transfers, and licensing for Standards Essential Patents.
- Actively engage in constructive deliberations of International agreements and treaties, in consultation with stakeholders.
- Identify important areas of study and research for future policy development.
- Adopt measures to facilitate interplay between IP laws, and between IP laws and other laws to discard ambiguities, if any.
4. To modernize and strengthen IPR administration for cost effective grant and management of IP, and promoting user friendly services.
The IPR offices engaged in granting and administering IP related rights, dissemination of necessary research oriented information, are considered to be of vital importance for the successful and balanced development of the IPR system. With the increasing importance of IPR, and its significant contribution towards the Nation’s economy, the role of IP administration has also increased manifold, resulting in the need for a dynamic IPR infrastructure, Well qualified and trained officials at all levels, well conversant with the existing IP laws and modernized IP offices complete with the latest technological advancements, cumulatively thereby fostering a service oriented approach. This is the fourth objective of the policy, highlighting the following initiatives amongst others:
- To bring the administration and implementation of IP related laws, including the Copyright Act, 1957 and Semiconductor Integrated Circuits layouts-Designs Act 2000 under the Department of Industrial Promotion and Policy (DIPP).
- Establish a ‘Cell for IPR Promotion and Management’ (CIPAM) under the aegis of DIPP, for promotion, creation and commercialization of IP assets.
- Restructure, upgrade and revamp IPO’s, taking account of rapid growth of IP users, the higher responsibility and accountability and increased workload.
- Collaboration with various R&D Institutions, Funding Agencies and Chambers of Commerce, in providing advisory services to improve the efficiency, management and utilization of the IP rights.
- Install mechanisms in the offices of the CGPDTM (controller general of patent, designs and trademark), to adopt best practices with respect to docketing of documents, maintaining and digitizing records, and adhere to timelines when dealing with registrations, and disposing off oppositions.
- Office of the Registrar of Copyrights to take steps for modernization of copyright office, e-filing facilities, digitizing copyright records, introducing online search facility, and for effective administration and management of copyright societies.
- Creation of common web based portal for improving access to statutes, treaties, guidelines and other databases.
- Adopt standardized procedures in examination / grant of applications, including maintenance of rights.
- Promote interaction and cooperation with IP offices in other countries, to facilitate exchange of best practices and ideas.
5. Commercialization of IPR.
It is an undisputed fact that economic benefits in the form of monetary rewards to the IP owner is one of the major factor that induces such owners to come forth with more such commercially viable IP, thereby indirectly benefitting the Nation’s Economy. Such monetary benefits can be reaped only if there is commercialization of the IP rights. Commercialization is the tool that enables the full realization of the financial value of the IPR’s. This aspect of commercialization of IP’s has been recognized as the fifth object of the Policy, which in short aims at promoting ‘entrepreneurship’ with the following initiatives amongst others:
- Take appropriate measures for the creation of a public platform, to act as a common database of IPR’s, thereby connecting creators and innovators to potential buyers, investors and funding institutions.
- Promote public sector initiatives for commercialization of IP’s, and also licensing and technology transfers for IPR’s, and also encourage collaborative efforts between R&D institutions, funding agencies and Academia.
- Encourage MSME’s and start-up’s to acquire and create IPR’s in other countries as well, by providing them with suitable incentive schemes.
- Secure valuation of IP rights as intangible assets, by application of appropriate methodologies and guidelines.
- Promote going to market activities, by providing seed funding for marketing activities.
6. To combat IPR infringements, piracy and counterfeiting by strengthening the enforcement and adjudicatory mechanisms.
Mere encouraging innovation without securing a proper enforcement mechanism will achieve no ends. And for successful enforcement, it is primarily important to generate respect for IPR’s among the general public, and also to sensitize the inventors and creators on measures for protection and enforcement of their rights. Secondly, there is a need for the capacity enhancement of the enforcement agencies at various levels, and also the IPR cells in the State police forces needs to be strengthened. This has also been very aptly recognized by the policy, which very correctly suggests measures such as holding workshops for judges to educate them on effective IPR adjudication, and also setting up specialized courts for dealing with IPR issues. Some other measures also include:
- Promote: collaborative strategies by engaging with all levels of industry, pooling of the best practices both Nationally as well as Internationally, analysis of the extent of IP violations in various sectors, and also device appropriate measures for curbing digital piracy.
- Establishment of specialized IP cell for curbing IP offences, and engage in regular training of the offices involved in adjudicating such offences.
- Promote ADR’s in resolution of IP disputes.
- Creation of a nationwide common database of IP offenders.
- Conduct regular workshop for judges to constantly keep them updated on the best practices of adjudicating IP disputes.
7. To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPR’s.
It is a well known fact that apart from all the above mentioned initiatives, it is the ‘Human Capital’ that has the capability of converting an idea into reality. In this 21st century characterized by constant intellectual growth and development, the full economic potential of IPR’s can be harnessed only with the aid of IP experts and professionals, skilled in the various spheres of IP administration and enforcement, and well versed with the laws and strategies in this context. Thus the need of enhancement, training and capacity development of IP expertise in the industry, legal fraternity, judiciary and in the society as a whole is constantly felt. This importance of the Human Capital is recognized as the final objective of the policy, which suggests the following among other measures for the increased generation and utilization of the IP assets, thereby fostering their development.
- Strengthen IP chairs in Educational institutes of higher learning, to improve the quality and level of teaching and research.
- Introduce IP courses/modules in all major training institutes, and also introduce IP teaching as a part of the curriculum in schools and colleges, and also in other legal, technical, management institutes and so on.
- Aid to formation of associations like Industry association, creator association, etc, for the active discussion, training on IP issues.
Majorly, the policy is a comprehensive one, encompassing the complete life cycle of a successful IPR within it. Right from creating awareness, to its successful commercialization and implementation, all the areas have been adequately covered. It has also been lauded as a well balanced policy, equally balancing development and interest of the people on its two scales. But at the same time, some inherent flaws especially in relation to the Generic drug industry cannot be ignoed. Concerns have been raised that the policy reveals nothing specific in the interest of the Generic Industries, except that India shall remain committed to the Doha Declaration on TRIPS Agreement and public health[i]. The policy, though aimed at fostering innovation, the major thrust is on IP enforcement and hence does not adequately address the innovation gaps in the Generic drug industry, i.e generating an atmosphere conducive to develop medicines to combat diseases often plaguing the third world countries, is not aimed at by the said policy. In this context, the concern raised by Mr. D.G. Shah, secretary general, Indian Pharmaceutical Alliance, over the disastrous effect of mere alteration in the legislative framework, without the necessary funding to secure access to medicine for all, on both the Generic Industry as well as on the people cannot be ignored.
Secondly the policy clearly states that it is open for necessary legislative changes, as and when the need arises. Further, it is also very evident that India is under tremendous pressure from the developed countries to amend its patent laws. In such a scenario, a fear always looms that the ‘suitable legislative changes’ should not proceed in a direction solely favoring the Global Pharma Companies. Rather than a lacuna, this can be rightly termed as a genuine fear, and the recent grant of patent to the Hepatitis-C drug ‘Sovaldi’, manufactured by ‘Gilead’, reversing its earlier rejection by the patent office last January, does nothing to douse this fear. (The drug is reportedly the costliest medicine in the world, priced at $1000 per pill in the U.S. by its manufacturer.)
To conclude, it can be rightly said that on the whole, the policy is a positive step in the process of creating a ‘dynamic, vibrant and balanced intellectual property rights system’, with the aim of uplifting India to the highest rung in the global intellectual property arena, and also adequately providing for the reasonably foreseeable challenges that may plague the Indian Intellectual property industry in the future. But again, much of its success depends on the immediate and efficient implementation of its objectives, backed by a strong legal framework, without which, the policy would be rendered nugatory, and will remain active only on the paper.