Human beings are touted to be one of the most intelligent species on the planet and there is no denial of this fact. Intellect is a major parameter that we use to judge other individuals. With the advent of capitalism and spreading the idea of privatized properties, the horizon of commodification has spread to abstract matters too.
Initially, people used to identify physical articles as a subject of possession, for example a house, a vehicle, a piece of land, etc. Slowly, the act of commodification spread to even more mundane things like water and clean air. And along with these, human intellect too became commoditized in the form of intellectual property.
Intellectual property is defined as the class of property that is a subject to ownership of an individual or organisation and comprises of the incorporeal creations and conceptions of the human intellect. In layman terms, these are the ideas and inventions that arise out of the creative minds of human beings which give shape to new technology and innovations.
Just like every other type of property, intellectual properties of individuals and/or organisations are protected under various laws and regulations which vary from country to country. These laws are known as intellectual property rights, abbreviated to IPR.
IPRs are of various types and vary across nations. Every nation has their own set of guidelines that safeguards a creator’s rights to his original creations. But these laws have been maligned with loopholes which have been constantly exploited by powerful organisations as well as individuals to cause financial distress to adversaries and competitors or gain monopoly over certain goods and services and milk money out of them immorally.
These issues relating to IPR pertain in various fields of science, literature and arts and have been regarded as one of the most discouraging phenomena for the emerging creators as well as established organisations. Hence it is of utmost concern to identify these issues and take necessary corrective measures.
IPR- Principle and its Types
While it is true, that knowledge only expands when shared, hence it should be freely available for public use. But to deliver justice to the original inventor who invested his time, energy, money and other resources behind the conception of the intellectual property, the governments provide them with legitimate benefits depending upon their contribution to the invention of the project.
The principle aim of IPRs is to provide fair use of intellectual property. Any creation that stems from an individual’s mind should be used only after his authorization. This does not only values the morals but is also beneficial to the socio-economic aspects. Furthermore, the period of authority is limited in most of the cases, hence after a certain time, the intellectual property is open for public use. This tries to balance the initial bias to the creator and helps the public to flourish with the knowledge.
There are four major types of IPRs as described below
Patents: These types of IPR are granted to an inventor which gives him exclusive ownership of the invention. It empowers the owner to exclude other individuals or organisations from manufacturing, utilising, selling, offering to sell, and importing the invention. This right is valid for a limited period of time only. In India, this period lasts for 20 years as per the Patents Act, 1970 (amended in 2006). In exchange, the owner has to publicly disclose the full details of the invention. If the inventor dies within the period of patent, it is passed down to his successor-in-title.
Copyrights: These are a number of rights classified under the same category which entitles the creators of literary, dramatic, musical and artistic works and the producers of cinematograph films and sound recordings exclusive ownership rights of their works. Computer software, programs and applications are also protected under this right as they fall under ‘literary’ works. The rights include rights of reproduction of the work, adaptation of the work and translation of the work, and communication of the work to the public. In India, the Copyrights Act 1957 (amended 2012) provides the IPR framework for copyrights.
Industrial Design Rights (IDR): Not all objects have purely utilitarian value. IDRs are such rights that protect the visual design of these objects. These include two and three dimensional objects which have more of an aesthetic value than a pragmatic one. An industrial design is any such design which has a distinct shape, colour and pattern. The Indian Constitution has provided Designs Act, 2000 to safeguard industrial designs.
Trademark: These are unique sign, design or an expression that are easily recognisable and are used to distinguish between similar products or services from other companies or traders. It could be a name, a phrase, a logo an image or a combination of these elements. The Trademark Act, 1999 of India protects the interests of these symbols.
Other types of Intellectual Property rights include Geographical Indications which are used to safeguard products that have specific geographical origin. Darjeeling Tea is an example of this. There are special IPRs for traditional knowledge, plant varieties, biological diversities and superconductor chips and integrated circuits.
Issues related to IPR in India
In the international levels, there are two main bodies that govern the aspects of intellectual property- The UN prescribed World Intellectual Property Organisation and the WTO regulated Trade Related Aspects of Intellectual Property Rights (TRIPS). The latter bears more significance than the former.
India became a part of the TRIPS in the year 1995, and being a developing nation, was awarded a 10 year window to align itself according to the guidelines and rules set by the organisation. By 2005, India had almost reached this goal. Yet, there still remain a few challenges in the field of intellectual property for the country. Among these problems, the six most cumbersome ones are described as follows:
Transitioning from process to product patent is the foremost issue that IPR in India is facing. As recorded by the TRIPS, all member countries are required to shift to a ‘Product Patent’ from a ‘Process Patent’. Product Patents safeguard the products while its ‘process’ counterpart protects the processes only. This becomes a subject of contention for IP rights of products especially in the food and pharmaceutical industry.
Section 3(d) of the Indian Patent Act is yet another challenge imposed upon the IPR in India. This prevented multinational companies from ever-greening their patents by inducing minor changes in the original product. The companies need to show that the changes have brought a major breakthrough in ‘therapeutic efficiency’ to be reconsidered for patent protection. This section has brought in distaste and condemnation by many private sector companies and corporations.
Compulsory Licensing has been causing trouble to the IPR regimes in India for a long while. Under this facility, the government can compel the patent owners or other companies to mass produce the patented product in emergency, irrespective of who got the patent. The government is being accused as opportunistic by many MNCs, but their stand on this remains unchanged as they want to safeguard the interest of the mass.
There also exist special provisions of drug price control order which was originally meant to prevent companies from charging unfair prices for their patented products. The cost of the products need to be well justified to be able to enter the market. But the companies complain that the guidelines are so strict that their products sell for an even lesser value than they are supposed to be.
Food Security and IPR- India being primarily dependent upon agriculture is following a scheme of subsidies and ‘minimum support price’ to empower the farmers. These are causing hindrance for a complete implementation of TRIPS because their agreement involves minimising or completely eliminating such schemes. Thus, the government is finding it hard to balance food security and IP rights.
The USA has time and again questioned India’s IPR policy. International Intellectual Property Index, a study undertaken by the US chamber of Commerce has ranked India 37 out of 38 countries in terms of our IP regime. The main issue that persists is that India, along with other nations like Brazil, China, Indonesia and Russia have maintained and introduced IP policies that tie access of market to sharing of intellectual property.
This causes forced-localisation of IP and technology which causes major devolution of the global innovation ecosystem and discourages investments from foreign IP entities. India has consistently remained at the bottom of this ranking for four years now and the US has placed us under the ‘Priority Watch List’. If India manages to enter ‘Priority List’, then the US will start imposing sanctions on our nation which can grievously hurt our economy.
India’s counter to these Issues
As of now, the Union government has no interest in submitting to international pressure in the field of IPR. India has so far not violated the terms of TRIPS Agreement and has been able to secure a spot in the US backed ‘Trans Pacific/Atlantic’ Trade Partnership which includes relaxing of some of the most stringent clauses under TRIPS for the partner nation.
Patent or copyright infringement and piracy still occupy the foremost trouble for India’s IPR regime. This added with the fact that India’s R&D performance has remained constantly weak, contributing only 2.7% of the global expenditure, means that India needs to step back, reevaluate and implement a new IPR policy for itself. The new scheme should reassert India’s commitment to the TRIPS Agreement. We also need to focus on developing infrastructure and human resources capacities and give significant momentum to the copyrights and patent offices in India.
Additionally, the revamp to the IPR scheme should also consist of comprehensive policies for the various sectors and academic institutions in India. In the human resources aspect, specialised training should be handed out to generate personnel who can aptly manage the IPR related issues at lower levels. Patents information databases should be extensively logged and easily accessible to the public. Finally, a consortium for IPR professionals can be established which can offer people principled IPR services.
Providing first class IPR is one of the most challenging aspects of the Indian Economy. Yet it is not impossible to overcome. India was left in tatters after independence, and unlike most of the other nations in the TRIPS Agreement, a capitalist economic model would have further degraded the socio-economic conditions of the newly formed nation.
Hence to balance it out, India went for a mixed type of economy to make sure the nation grows and at the same time cater to the interests of the public. Due to this, many issues arose which with due time were remediated or are under the process of being redressed. IPR is placed under the latter category. The older norms are being amended keeping in mind the protection of the general interests.
The road ahead of India for IPR regime includes many milestones to cover. Starting from complete implementation of the TRIPS, which will only be possible if we include development of our science and technology, increased research investment and administrational and institutional reforms.
Furthermore, generating IPR related awareness to the commons, creating patent cells specific for every subject of intellectual property and encouraging R&D minded entrepreneurship, there is no doubt that we will soon be able to not only have a progressive IPR regime, but also contribute to the overall growth to India’s economy.