Day 35 – Q 4.Examine the legal framework related to intellectual property rights in India? Is it a progressive one? Critically examine.
4. Examine the legal framework related to intellectual property rights in India? Is it a progressive one? Critically examine.
भारत में बौद्धिक संपदा अधिकारों से संबंधित कानूनी ढांचे की जांच करें? क्या यह प्रगतिशील है? समालोचनात्मक से जांच करें।
In the backdrop of rapid globalization and liberalization of economies globally, the emergence of “Intellectual Capital” as a key wealth driver of international trade between countries has led to Intellectual property rights becoming an irreplaceable element. India too has a Trade Related Aspects of Intellectual Property Rights (TRIPS) compliant, equitable and dynamic IPR regime.
Existing legal framework for IPR:
- India’s legal framework caters to the following areas of intellectual property:
- Trade Marks: Trade Marks Act, 1999
- Patents: The Patents Act, 1970 (amended in 2005)
- Copyrights: The Copyright Act, 1957(amended in 2012)
- Industrial designs: The Designs Act, 2000
- Geographical indications: The Geographical Indication of Goods (Registration and Protection) Act, 1999
- Layout designs of integrated circuit: The Designs Act, 2000
- Varieties of plant: The Protection of Plant Varieties and Farmers Rights Act, 2001
- Information Technology and Cybercrimes: The Information Technology Act, 2000
- Data protection.
- Traditional Knowledge: Traditional Knowledge Digital Library.
A comprehensive National IPR policy has been approved that will not only stimulate innovation and creativity across sectors, but also provide a clear vision regarding IPR issues.
- IPR Awareness: Outreach and Promotion – To create public awareness
- Generation of IPRs.
- Legal and Legislative Framework: To balance the interests of rights owners with larger public interest.
- Administration and Management.
- Commercialization of IPRs.
- Enforcement and Adjudication: For combating IPR infringements.
- Human Capital Development: To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.
Commendable progressiveness of the policy:
- Trademark offices have been modernized with the aim to reduce the time taken for examination and registration to just a month.
- The Policy also seeks to facilitate domestic IPR filings, for the entire value chain from IPR generation to commercialization.
- It aims to promote research and development through tax benefits.
- Films, music, industrial drawings will be all covered by copyright
- IPR Ensures Safeguards for Indian Pharma Industry ensuring the availability of essential and life-saving drugs at affordable prices.
- It gives a strong message of supporting the Make in India Campaign.
- Lots of steps for Start-Ups have been recommended in the policy. The copyright subject matter has been shifted to help achieve objective of utilitarian industries like software, telecom and many more.
- It will allow compulsory licensing with restrictions in case of a public health emergency such as epidemics.
- Pro-IP policies of the Government such as ‘Accelerating Growth for New India Innovations’, ‘Start-up India’ and ‘Digital India’, was considered as one of the few reasons for improvement in the ranking in the 2019 International Intellectual Property (IP) Index, at 36th position among 50 countries.
Criticism of the existing framework:
- The policy lacks empirical rigour and appears more faith-based than fact based. It endorses a very formalistic and reductionist view of IP.
- It is not based on empirical studies and stakeholder surveys and but on intuitions and assumptions. It ignores other factors such as education and cultural aversion to risk.
- It is comparatively silent on the issue of traditional knowledge and the informal creativity/innovations.
- WIPO statistics suggest that patenting by Indian public research organizations (PROs) and universities is still quite limited.
- India’s IP registration offices are overburdened and there are yawning gaps in enforcement of the policy.
- Multiple problems are still faced by pharmaceutical, software, biotechnology, automotive, movie, music and other technology-led, IP-intensive industries due to weak behavioural approach.
- India is named in the US- priority watch list to highlight the poor implementation especially in checking digital piracy and compulsory licensing.
- 36 out of 50 countries is still a disappointing rank, and show a lack of effective innovative growth.
What steps have been taken?
- Strengthening of Institutional Mechanism: All IPRs under one umbrella and one Appellate Board have been institutionalised.
- Establishment of Cell for IPR Promotion and Management (CIPAM) to assist in simplifying and streamlining of IP processes.
- Clearing backlog/reducing pendency through targeted augmentation.
- Business provisions have been re-engineered to make it user friendly and CPGRAMS for grievance redress.
- IPRs included in school syllabus and IPR Enforcement Toolkit for Police.
The legal setup in India nicely tries to balance public rights with private rights and provides adequate incentives for entrepreneurs to innovate. However, implementation of various laws has been lax, with patent or copyright infringement and piracy not uncommon. Therefore, a holistic and a more progressive policy can ensure the growth of the abundance of creative and innovative energies flowing in India.