New IPR policy: some groundbreaking on copyrights, no surprises for pharma but concerns remains

On the last day of the parliament's budget session and a month ahead of prime minister Narendra Modi's visit to the US, India put out its much awaited IPR policy - India's first IPR policy. That says, "the existing IP laws in India are fully compliant with the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement and that these laws along with various judicial decisions provide a stable and effective legal framework for protection and promotion of IPRs" , should come as a source of satisfaction to those worried that India may, perhaps under pressure from lobby groups within the US, tinker with the law. However that is not to say, there are no concerns. For instance, consider the statement in the policy: "Explore the possibility of expedited examination of patent applications to promote manufacturing in India." While, this seems a move that could boost efforts at encouraging industry to "make in India" there are fears, particularly within a section of the domestic pharma industry on how this will be "explored" and what measures government will take to ensure the process is watertight and does not get subjected to abuse by companies after getting a patent (afterall, revoking a patent is also a very long drawn process). Plus, some are also not sure if the amendments in the policy that are being proposed are being done without an amendment to the Patent Act but through a notification on amendment of rules. There is still need for clarity on this.

Despite some of these concerns, as is evident by now, most industry and trade bodies have welcomed the new policy and lauded the government for, as Nasscom put it: "encompassing the entire value chain, spanning across IPR Awareness, Generation, Legislative Framework, Administration, Commercialisation, Enforcement and Adjudication, Human Capital, comprehensively covering all aspects of the domain." Within the pharma industry, however, there is still guarded optimism. For instance, D G Shah, secretary general of the Indian Pharmaceutical Alliance (IPA), that has major Indian pharma majors as its members, who is currently travelling abroad, while reacting finance minister Arun Jaitley's statements on the policy says: "Having justified the current IPR regime for medicines, the government has tried to pacify the USTR (US Trade Representative) and the Big Pharma by the following balancing statement" and quotes the statement of the finance minister: "we believe that our existing laws, they are all WTO compliant, and as and when global trends move forward, a continuous evolution of these laws will always be required. To this, he says: "Thus, the finance minister has not put a lid on the subject. Instead, he has chosen to keep the pot boiling. It will neither satisfy the USTR/PhRMA (Pharmaceutical Research and Manufacturers of America) nor the civil society and the domestic industry." Observing that "the use of word "evolution" is a matter of concern because the IPR Policy has moved only in one direction  under pressure from the developed countries," he says: "unless the government is ready with funding and programmes to ensure access to medicine for all, any change in the legislative frame work would hurt not only the generic industry, but the people of India."

However, other than pharma, what arguably stands out about the policy is, with some experts calling it groundbreaking, are the measures on copyrights. Accepting the recommendations of the IP think tank, the new IPR policy says: "the administration of the Copyright Act, 1957 and the Semiconductor Integrated Circuits Layout-Design Act, 2000 is being brought under the aegis of DIPP (department of Industrial Policy and Promotion), besides constituting a Cell for IPR Promotion and Management (CIPAM). This will facilitate more effective and synergetic working between various IP offices, as also promotion, creation and commercialization of IP assets." In other words an entire department is being moved into a different ministry. The nodal department for trademarks, patents, designs and geographical indications is the DIPP which functions under the Ministry of Commerce and Industry; copyright is administered by the Ministry of Human Resource Development; semiconductor integrated circuits layout-designs by Department of Information Technology. This would be a major move as the allocation of business rules of the government will have to be amended and this is not a small measure. The current move is meant to support the argument that India has been a victim of copyright violation, especially in music and films.

But still, remaining critical of the overall policy, Shamnad Basheer, Honorary Research Chair Professor of IP Law, Nirma University and visiting Professor of Law, National Law School, Bangalore and one who was part of the first committee on IPR says: "the entire edifice of the present IP policy appears to be built on this flawed foundation equating more IP with more innovation!  And an entire section devoted to how every part of our knowledge should be converted to an IP asset!" He says the policy "fails to situate IP within the larger innovation ecosystem and treats it as an end in itself. Without appreciating that it is but a means to an end. A mere tool that could potentially accelerate innovation in certain contexts. We had explicitly mentioned this in our first draft of the IP policy under the first think tank (of which I was part). Unfortunately the government disbanded our committee."