Draft national IPR policy : Gauging the sentiment in Washington D.C.

IP Slate comment: This brilliant guest guest post has been written by Seemantani Sharma. She is an Indian qualified IP lawyer currently based out of Washington D.C. She is set to join the Asia – Pacific Broadcasting Union (Kuala Lumpur) as its Legal Officer in April, 2016. She has been at the forefront of setting up the Indian Society of US Law and Policy in her capacity as the Deputy Director of the Indian Society of Global Law and Policy. She is the founder of Innovation, IP, Technology and Law, a blog on general intellectual property issues. For her complete professional profile, visit her Linkedin Profile.

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BACKGROUND :

For any keen follower of India – U.S. IP relations (or rather standoff), it’s the time of the year to be on one’s toes. Just a couple of days back, the Global Intellectual Property Center of the U.S. Chambers of Commerce released its 4th Annual International IP Index  ranking India at a dismal 37 out of 38 countries on international best practices in IP law.

With the 2016 Special 301 Report due for release by April end, the USTR has been soliciting comments from the public. The comments seek to identify countries whose IP regimes function as trade impediments for U.S. corporations. For the timeline of the 2016 Special 301 Review, see here.

2014 SPECIAL 301 REPORT AND THE DRAFT NATIONAL IPR POLICY :

In the  2014 Special 301 Report, India was designated as a Priority Watch List country with its IP regime subjected to heightened scrutiny through an Out- of- Cycle Review (OCR). This culminated in the constitution of the IPR Think Tank by the Department of Industrial Policy & Promotion( DIPP), Ministry of Commerce (Govt. of India).

The IPR Think Tank was constituted with the aim of reviewing India’s IPR regime. It’s stated objective being, “nurturing the IP culture and to address all of the IP system including legal, administrative and enforcement infrastructure, human resources, institutional support system and international dimensions.”

Much has been written and spoken about in India about the Draft National IPR Policy and its attempt to reinforce India’s image as a strong investment destination. However, there has been rather scarce deliberation upon the mood prevailing amongst the Washingtonian lobbyists,  think tanks and not-for-profits vis-a-vis the Draft National IPR Policy. The clout that these organizations exert in determining the final outcome of the Special 301 Process cannot be underestimated.

Not delving into the merits of the Draft National IPR Policy, the author will highlight the prevalent sentiment amongst some of the prominent Washington D.C. based lobbyists, think tanks and quasi federal organizations.

ASSESSING THE MOOD IN WASHINGTON D.C. :

A cursory analysis of the comments received for the 2016 Special 301 Report indicates an unfavourable perception amongst the prominent trade groups (not to my surprise though!).

No attempt to highlight the comments of all the organizations has been made. Pertinent comments of some of them are –

Alliance for Fair Trade With India (ATFI) is a conglomeration of trade associations representing diverse U.S. industries ranging from pharmaceuticals to the recording industry (looking at its membership base, I would rather address the ATFI as a “cosy coterie”) . It primarily engages with U.S. policymakers on India’s IPR regime which function as trade and investment barriers for it’s members.

Denouncing the Draft National IPR Policy as bereft of any “substantive and measurable improvements”. it took a dig at the following issues –

1. Weakness in the Indian Copyright system harming US creators.
2. The usage of compulsory licenses.
3. Heightened patentability criteria.
4. Forced localization requirements.
5. Lack of trade secret and test data protection.

Biotechnology Innovation Organization (BIO), the largest trade organization representing the biotechnology sector in the U.S. and around the world acknowledged the steps taken by the Modi administration to engage in a dialogue with the U.S. on India’s IP regime.

Apart from making substantive objections, it  has expressed its dismay on following grounds –

1. Failing to rationalize the need for a strong IP regime.
2. Failing to address controversial issues particularly compulsory licenses.

Global Intellectual Property Center (GIPC) of the U.S. Chambers of Commerce while recognising the willingness of the Modi Government to engage with the U.S. on IP matters noted that no concrete steps had been taken under the Draft National IPR Policy. It specifically raised objections to –

1. Onerous patentability requirements.
2. Absence of regulatory data and trade secret protection.
3. Absence of unambiguous policy on issuance of compulsory licenses.
4. Non – ratification to international treaties such as the WCT and the WPPT.   

The Pharmaceutical Research and Manufacturers of America (PhRMA) is the trade group representing the pharmaceutical companies in the U.S. While appreciating Modi administration’s commitment to a world class IP system, noted that translating this into concrete results as reflected in the Draft National IPR Policy remained a challenge. Specific objections with respect to the following were made –

1. Restrictive patentability criteria in contravention of TRIPS.
2. Weak patent enforcement.  
3. Vagueness with respect to issuance of compulsory licenses.  

International Intellectual Property Alliance (IIPA), the coalition of trade associations representing U.S. copyright-based industries lauded the positive steps taken under Modi’s auspices to improve India’s IP regime. It hoped for a voice in the National IPR Policy on the need to curb growing online copyright privacy and vestigial physical piracy affecting some sectors. Apart from raising objections on the following grounds, proposals on both enforcement and legislative sides were made.

1. Pirate online services
2. Illegal textbook copying business
3. Illegal camcording networks
4. Infringing cable operators

The United States International Trade Commission (USITC), the quasi Federal agency dealing with matters of trade in its Trade and Investment Policies Report noted the willingness taken by the Modi Government to engage with the U.S. on IP matters. Failure to enact new laws to address IP related trade barriers had not gone down well with the U.S. Government. Specific objections on following grounds were also raised –

1. Absence of statutory protection for trade secrets and regulatory test data.
2. Pessimism over issuance of compulsory licenses.
3. Absence to identify patentability standards as an area in need for reform.
4. High rate of counterfeiting and piracy.

CONCLUSION :

Going by the tenor of the submissions made to the USTR, the prevailing sentiment amongst the D.C. based lobbyists and quasi federal organisations is that though the Indian Government stood committed to improve its IP regime, the same was not reflected in  the Draft National IPR Policy. Hence, mandating India yet again to  be designated be as a Priority Watch List country.

( This is not to discount the fact that a few D.C. based public interest organizations such as the Public Citizen and the Knowledge Ecology International have supported India’s IP regime and its refusal to align with the U.S. corporate interests)

What needs to be seen is whether an Out – of – Cycle Review (OCR) is called for or not. Given the influence exerted by PhRMA, IIPA, GIPC, ATFI and BIO, there is a high likelihood of an Out – of – Cycle Review (OCR) being imposed by the USTR. (PhRMA, ATFI, BIO and GIPC has recommended for an OCR).

Perhaps the long awaited National IPR Policy, if favourable to U.S. trade interests could upgrade India’s status in the next year’s Special 301 Report.  Time only will tell! As an Indian IP lawyer, all I can hope for is that the National IPR Policy does not succumb to U.S. pressure.

Photo courtesy: businessinsider.in