Source: First Post
11 November, 2014
The recent union government decision to set up a think-tank to draft a national Intellectual Property Rights (IPR) policy and to advise the Department of Industrial Policy and Promotion raises considerable anxiety given that the US has been picking holes on India’s intellectual property regime for a long time.
The think-tank, which consists of an ex-judge, two lawyers, an industry representative, an academician, an ex-WIPO (World Intellectual Property Organisation) official has been given a blanket mandate to advise the government on every intellectual property issue. Although strengthening the intellectual property regime in the country is a welcome step, what calls for caution is the huge mandate placed on the group.
According to the terms of reference of the think tank, the group will draft the national intellectual property rights. However, what’s missing is any direction from the government and the processes that are to be followed.
India’s existing policy regime, although loathed by the US and the EU, has been a lifesaver for Indians. In the recent past, the country has seen how a conducive IP policy, that doesn’t violate international conventions, has greatly helped millions of people who are in need for urgent modern medical care. The compulsory licensing (breaking the patent of an MNC company because of domestic medical needs) of a couple of drugs brought down their prices manifold and there is demand for more such decisions from healthcare activists.
For instance, cancer drug Glivec, sold by Swiss pharma company Novartis for more than Rs one lakh, is now available in the generic from for about Rs 8,800 and its price is likely to fall further. The US pharma lobby has been wrongfully going to town against such decisions saying that India doesn’t respect patent and innovation.
The existing intellectual property environment is also important for manufacturing which the Modi government is swearing by. For the manufacturing sector, the present Patent Act is important to access technology, particularly the climate friendly technologies. In the agricultural sector, India’s existing regime is important to deny patents to seeds that otherwise would tie farmers to the stranglehold of MNC companies. The existing regime is also favourable to Indian biotech companies.
What worries one about the think tank is that it follows a recent decision to set up a high level bi-lateral working group on IPR between the US and India. Such a decision coincided with prime minister Narendra Modi’s US visit and it was widely viewed with a lot of concern because it would open up India’s intellectual property policy space to the Americans. A regime, that has been proved to be extremely vital for the country, being opened for negotiations didn’t appear to be a favourable prospect.
Almost at the same time as Modi’s US visit, the union commerce minister Nirmala Sitharaman also said that India would come up with an intellectual property rights policy. She said that the purpose was to protect India’s interests and to deal with “issues raised by developed countries”. Her words certainly betrayed pressure from the US and EU.
Over the years, India has repeatedly defended the use of TRIPS flexibilities in all international fora. India’s intellectual property legal regime also used most of these flexibilities. If India aims to be a manufacturing giant, there is a need to optimise them. The country’s own economic and technological situation demands an IP regime which is flexible to facilitate technology transfer through catching up. Till date, there is only one model for such a catch up and that is reverse engineering. The new IPR policy shouldn’t hinder it.
Empirical evidence also supports this. Most of the patents in India are owned by foreign companies. More over, the last 10 years of product patent protection shows that there is a substantial increase in the import of medicines by multinational companies. Similarly, there is an increase in the outflow of money as royalty.
Although a written policy is not a bad idea, its drafting runs the risk of influence by developed countries such as the US and compromise on the existing flexibilities. Informed civil society and an ever-vigilant rights activists played a major role in shaping the present IPR regime in India. They have played a critical role in making life saving medicines accessible to millions of Indians and put pressure on the government to keep lobbies at bay. However, the new think tank lacks representation from civil society. This is a major lacuna.
The two key points Nirmala Sitharaman used while announcing the drafting of a new IPR policy were “India’s interests” and “dealing with developed countries”. If the policy has to protect the lives and interests of Indians, what she ought to focus is the former. She should also open the policy to wider public debate so that the think tank captures the national sentiment.