Towards a positive IP mindset

“Today, progress comes from the perfect protection of intellectual property” -Lawrence Lessig

The twenty-first century will be the century of knowledge, indeed the century of the intellect. A nation’s ability to translate knowledge into wealth and social good through innovations will determine its future. Intellectual property can be characterized as the property in ideas or their expression. The creative and innovative India is the motto which will inspire India to take a lead in various fields of human accomplishment. In doing so the article explicitly recognizes the importance and value of IPR in nurturing India’s national ambitions.

In recent years India has made robust progress not only in implementing its obligations under the WTO Agreement on TRIPs Rights, but also in developing its own IP regime which endeavors to balance the trade-off between monopoly rights and free access to knowledge.

Important IP Development in India in Last 12 Months:

In the recent years the Indian economy has opened up and grown dramatically. As a result, India?s prominence in the global economy has increased significantly, sparking huge interest from foreign investors. In almost all industry sectors, multinational companies are now doing business in India. As a result, India’s intellectual property laws and enforcement regime are being brought into the limelight and subjected to scrutiny for their adequacy and compliance with established global standards. In recent years India has made vigorous progress not only in implementing its obligations under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights , but also in developing its own IP regime and to balance the trade-off between monopoly rights and free access to knowledge. On October 15, 2010 Federation of Indian Chambers of Commerce and Industry had launched an Anti- Piracy Coordination Cell with the approvals of Government of India. In order to curb piracy the three important pillars i.e. the legislation, enforcement and awareness needs to be properly dealt with. The cell will act as a platform where stakeholders can interact. The four main segments i.e. the film industry, music industry, publishing and software industry are getting adversely affected by piracy.

Justice Muralidhar, on November 26,2010 had passed the rule stating that Certification of CD’s and DVD’s henceforth to be made compulsory, i.e. the manufacturers, distributors and sellers of cinematographic films to get their CDs/ DVDs certified by the Central Board of Film and certification (CBFC) before selling them in the market. The decree is only prospective and not retrospective, hence proper caution was given to the officials not to file cases against films or materials distributed or sold before this dictum.

The government also approved the proposal to establish a National Institute of Intellectual Property Rights Management at Nagpur. The primary functions of the institute include training, education and research, in addition to acting as a tank on key IP policy matters. The government has already put forward plans to expand and modernize further the IP offices in order to make them world class.

The International Searching Authority and International Preliminary Examining Authority is to provide reports on a unique search and examination reports on a variety of inventions for patenting. India has been discussed in the plan to get recognition for Indian Patent and Trademark Office as International Searching Authority and International Preliminary Examining Authority under the Patent Cooperation Treaty Office.

Formation of Mashelkar Committee:- Government of India has created a group of technical experts to examine the following issues in patent law: whether it is compatible with TRIPS to limit the granting of a patent medicine applies only to new chemical entities or new medical device and whether it is compatible with the TRIPS Agreement excludes the patenting of micro-organisms.

10th August 2010, the Parliament, has passed the Trademarks Amendment Bill, 2009. The Bill would implement the Madrid protocol in India and the Madrid protocol offers trademark owners the opportunity to obtain international protection for their domestic trademarks with the filing of one single application. Further, the bill prescribes a period of 18 months for the grant of an application to register a trademark, in line with the provisions of the Madrid Protocol.14 20th May 2010, The Trade Mark Rules, 2002 have been amended and Trade Mark (Amended) Rules, 2010 have come into force. The major change is amendment in Fourth Schedule of the TM Rules i.e. adoption of all 45 international classes. It seeks to give independent rights to lyricists, composers and singers as the authors of literary and musical works in films.

Today, we are able to accurately quantify and measure the level of intellectual property protection in different countries, and as a result to identify national gaps and outliers. For example, the US chamber’s Global Intellectual Property Centre recently released the third edition of the International Intellectual Property Index which measures the extent to which the rights of innovators and creators are being protected by different countries. The index measures the availability and actual enforcement of IPR across different sectors and all major rights including, but not limited to, patents, copyrights and trademarks.

IPR and economic impact:

Mapping countries’ intellectual property environments also allows us to understand their long-term impact, including in the fields of foreign direct investment (FDI), technology transfer, and economic activity. The evidence suggests that countries with well-established, robust national IP environments also reap significant economic benefits. Recent studies by the European and US patent offices on the economic contribution of IP intensive industries in the EU and US showed that these industries produced between 35-39 per cent of EU-wide and American GDP.

The benefits of IP are in no way limited only to mature markets. By improving their IP environment, emerging economies are likely to benefit significantly from FDI, greater technology transfer flows and economic growth. OECD modeling, for example, suggests that on average for every 1 per cent increase in the strength of its IP protection a country may expect a 2.8 per cent increase in its FDI inflows. That may also be the reason why India is becoming more mindful of the fact that exploitation of its intellectual property is a huge untapped economic resource.

DIPP hopes to finalize new IPR policy in few months

The Department of Industrial Policy & Promotion is hopeful of putting the new Intellectual Property Rights (IPR) policy in the public domain in the next few months.

The final draft on the IPR policy submitted by the think-tank on IPR has just been sent to various ministries and departments for their comments and inputs. We hope to bring the policy in the public domain in the next few months. A think-tank headed by Justice Prabha Sridevan was constituted last year by the Government to highlight anomalies in the current IPR legislations and to advise the DIPP on possible solutions.

The new policy proposes to bring clarity in existing laws and safeguard the interests of Indian industry.

Conclusion:

The Indian IP regime has taken great strides towards the increased protection and enforcement of IP rights. Protection of Intellectual Properties is a very critical element in the offshore business model. India has charted its own IP path over the last 35 years, attempting to foster the growth of a domestic pharmaceutical industry and access to medicine while more recently also addressing the requirements of the international IP regime. The government should give incentives like tax rebates, besides taking steps to protect copyright laws, in order to boost India’s animation and gaming industry. The Indian IP regime has come a long way in recent months, IP rights in India has never looked more positive. With the Indian judiciary showing enthusiasm for and commitment to the protection of IP rights, IP owners have become more proactive in enforcing their rights by all means, and are exploring unchartered waters to obtain unique remedies from the courts. Combined, these mega trends create a new window of opportunity in which it is possible to think of a new direction in Indian policy on IPR. The election of Narendra Modi, and the recent announcement that India will seek to reform its national intellectual property environment, may provide a real platform for change. For the first time it may be possible to establish a more positive mind-set towards intellectual property rights in India and truly unleash the creativity and ingenuity of this great nation.