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Business Standard: Turning down knowledge

Troublingly, India is an outlier on intellectual property

February 5, 2014

India‘s dismal rating on the intellectual property (IP) environment by the United States Chamber of Commerce is worrisome, especially considering the country’s aspirations to go in for knowledge- and innovation-based development. A poor IP regime is a formidable disincentive for foreign investment in hi-tech areas and the introduction of new drugsand innovative products. It also does not bode well for domestic investment in research and development. The 2014 International Intellectual Property Index, issued by the US apex trade body’s Global Intellectual Property Centre (GIPC), has placed India at the bottom of the 25-nation index for the second time in a row. Worse, India’s overall score on this count has been lowered from 25 per cent in 2012 to 23 per cent, indicating deterioration in the IP environment. In contrast, countries like China, which had a worse IP environment, have managed to improve their rating since 2012.

True, the scores assigned to some of the parameters used for computing this index are not wholly incontrovertible. Dubbing Indian patent law inconsistent with the global agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is one such instance. The concerns expressed by the GIPC over compulsory licensing and non-availability of patent term restoration are subjective, given that these are TRIPS-compatible. It is important to realise that the patentability requirements in India are at variance with those in many other countries, including the US. But this does not in itself violate the TRIPS accord, which allows flexibility to developing countries to protect their domestic industry and public interest. Even compulsory licensing does not infringe TRIPS, which explicitly recognises in Article 8.1 the right of the countries to adopt policies for patentability exclusions in accordance with their local public health concerns and emergencies as defined by national governments. Even the Supreme Court’s April 2013 ruling on the patentability of Novartis‘ anti-cancer drug, Glivec, providing a clear interpretation of the Indian patent law on this count, has been cited by the GIPC as a negative factor in the Indian patent regime. The GIPC’s zero score to India on membership and ratification of IP-related international pacts is also contestable. New Delhi has, over the years, acquired membership of various global protocols, including the Paris Convention, the Patent Cooperation Treaty and the Budapest Treaty, besides signing the Madrid Protocol, which automatically extends applicability of trademarks to nearly 90 countries.

Still, India can neither be proud of nor comfortable with its status as a global outlier on IP enforcement. Its record in enforcing patents and copyright is far from satisfactory. This is reflected in large-scale unlicensed use of software in counterfeit goods, as also in music and printed material piracy. A more informed national debate on IP protection and a sound IP rights enforcement regime is overdue.