[Ip-health] India's National IPR Policy/IPR Think Tank - CIS Right to Information Requests + Government responses

Nehaa Chaudhari nehaa at cis-india.org
Tue Apr 14 11:51:11 PDT 2015


http://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses


  NATIONAL IPR POLICY SERIES: RTI REQUESTS BY CIS TO DIPP + DIPP RESPONSES

In earlier blog posts, we have discussed the development of India’s 
National IPR Policy (“the Policy”); comments by the Centre for Internet 
and Society (“CIS”) to the IPR Think Tank before the release of the 
first draft of the Policy and CIS’ comments to the IPR Think Tank in 
response to the first draft of the Policy. Continuing our National IPR 
Policy Series, this article documents our requests to the Department of 
Industrial Policy and Promotion (“DIPP” / “the Department”) under the 
Right to Information (“RTI”) Act, 2005 and the responses of the Department.


    DETAILS OF RTI REQUESTS FILED BY CIS

In February, 2015,CIS had filed three RTI requests 
<http://cis-india.org/a2k/blogs/rti-requests-dipp-details-on-constitution-and-working-of-ipr-think-tank>with 
the DIPP.The first request 
<http://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015/view>was 
four-pronged, seeking information related to/first,/the process followed 
by the IPR Think Tank while framing thefirst draft of the Policy 
<http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf>(released 
in December, 2014);/second,/details and documents of a meeting held to 
draft the Policy;/third,/details and documents of all/multiple meetings 
held to draft the Policy and/fourth,/all suggestions and comments 
received by the IPR Think Tank from stakeholders after theDIPP had 
issued a Public Notice 
<http://dipp.nic.in/English/News/publicNotice_13November2014.pdf>in 
November, 2014, asking for suggestions and comments on or before 
November 30, 2014.

Our second RTI request was almost identical to the first one. 
Differences in language/phrasing notwithstanding,in our second RTI 
request 
<http://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015/view>,/first,/we 
requested details of the process followed by the Think Tank in the 
formulation of the Policy;/second,/we requested all documents relating 
to a meeting held for the formulation of the Policy;/third,/we requested 
all documents held for multiple meetings for the creation of the Policy 
and/fourth,/we requisitioned all suggestions and comments received by 
the Think Tank from stakeholders*before*the release of the Policy, that 
is, those suggestions/comments received in November, 2014.

In ourthird RTI request 
<http://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-3-february-2015/view>, 
also filed in February, 2015, we had asked the DIPP to indicate all 
suggestions and comments received by the IPR Think Tank from different 
stakeholders in response to the first draft of the National IPR Policy 
(to have been submitted on or before January 30, 2015as per DIPP’s 
Public Notice 
<http://dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf>).


    RESPONSES BY THE DIPP TO CIS’ RTI REQUESTS

The DIPP replied to our three RTI requests in multiple stages. At first, 
in a letter dated 12 February, 2015,we were directed to resubmit our 
application 
<http://cis-india.org/a2k/blogs/dipp-response-to-cis-rti-improper-payment-february-2015/view>, 
seemingly because we hadn’t addressed the Postal Money Order to the 
correct authority, and were directed to do the same. Funnily enough, we 
received three other responses – one for each of our RTI requests (the 
first of these is not dated; the second one is dated 19 February, 2015 
and then revised to 26February, 2015; and the third is also dated 26 
February, 2015).


    The First Response: On the Constitution of the Think Tank

In the*first*of these responses to our requests 
<http://cis-india.org/a2k/blogs/dipp-response-to-cis-first-rti-february-2015/view>, 
the Department has grouped our queries into five questions and provided 
a point-wise response to these questions, as under:

1. *Please indicate in detail the process followed by the Department of 
Industrial Policy and Promotion for the constitution for an IPR Think 
Tank to draft the National Intellectual Property Rights Policy under 
Public Notice No. 10 (22)/2013 –IPR-III dated November 13, 2014 (sic).*

In its response, the Department notes that it convened an/interactive 
meeting on IPR issues/which was chaired by the Minister for Commerce and 
Industry (Independent Charge), i.e., Ms. Nirmala Sitharaman. As per the 
Department’s response, this meeting was held on 22 September, 2014 
(*“the Meeting”*) and was aimed at discussing/issues related to IPRs, 
including finalization of the Terms of Reference for IPR Think-Tank 
proposed to be established/(sic.) The Department also notes 
that/representatives from various Ministries/Departments, Member of 
various Expert Committees constituted by the Department, besides IP 
experts and other Legal Practitioners/(sic) were invited to the meeting. 
The Department then states that the composition of the Think Tank was 
decided/on the basis of the discussions held in the department after the 
said interactive Meeting/(sic).

2. *If there was a meeting held to decide on the same, please include 
all necessary documents including the minutes of the meeting, records, 
documents, memos, e-mails, opinion, advices, press releases, circulars, 
orders etc in which the constitution of the aforesaid mentioned IPR 
Think Tank was decided (sic).*

The Department has attached the Minutes of the Meeting held on 22 
September, 2014 (*“the Minutes”*) and states that there were no 
documents or papers that were circulated at this meeting and that the 
participants were asked to present their views on various IP issues at 
this meeting.

_Excerpts from the Minutes_

The Secretary of the Department (Shri Amitabh Kant) refers to a (then) 
recent announcement made by the Minister of State for Commerce and 
Industry (*“the Minister”*) on the formulation of the National IPR 
Policy and the establishment of an IPR Think Tank and states that the 
meeting had been convened to/discuss on various IPR issues with IP 
experts and legal practitioners so that it would provide essential 
inputs to the policy needs of the department/(sic). The Minutes report 
that Mr. Kant further stated that the objective of the department was to 
have/a world class IP system/and that this included a comprehensive 
National IPR Policy and/which takes care of various issues like IP 
creation, protection, administration and capacity building/(sic). He is 
also reported to have said that such a stakeholder interaction was 
important for the government to seek inputs.

The Minister is reported to have said that the purpose of the meeting 
was to constitute an IP Think Tank that would/regularly provide inputs 
to all IP policy needs of this department as well as advice government 
in disparate legal aspects (sic)./The Minutes also report her to have 
said that the department would finalize an IP policy within ninety days 
of the Meeting, based on the inputs of the participants.

According to the Minutes, various issues emerged from the 
discussion./Inter alia,/these include /first,/that the proposal to 
constitute the Think Tank was a welcome measure, along the lines of 
similar initiatives taken by Australia, South Kora, the United Kingdom 
and the United States of America;/second,/that in order to remove 
misconceptions held by/foreign stakeholders/about IP enforcement in 
India, there was a need to highlight judgments of Indian courts that 
were favorable to/foreign stakeholders and MNCs/;/third,/that the 
national policies on telecom, manufacturing and IP ought to be 
integrated;/fourth/, that the focus of the Policy should be*/increase in 
creation of IP including commercialization of IP and strengthening human 
capital and IP management/*and/fifth/, that empirical studies should be 
conducted to examine the feasibility of Utility Models protection, that 
there was a need to revise the law on Geographical Indications and that 
the Policy should include protection for traditional knowledge and 
guidelines for publicly funded research.

The Minister is then said to have identified six major areas during the 
discussion, including/IP institution, legislation, implementation, 
public awareness, international aspects and barriers in IP growth/as 
areas to be covered under the Policy.

_Who attended the Meeting?_

Attached with the Minutes was also a list of participants who attended 
the Meeting. Out of the thirty six attendees,/I have not been able to 
locate a single individual or organization representing civil society/. 
Participants include representatives from various government departments 
and ministries, including/inter alia,/the DIPP, the Department of 
Commerce, the Ministry of External Affairs, the Ministry of Information 
and Broadcasting, the Copyright Division from the Department of Higher 
Education of the Ministry of Human Resources Development, the Office of 
the Controller General of Patents, Designs and Trademarks and the 
Ministry of Culture. The Meeting was also attended by representatives of 
corporations and industry associations, including FICCI, CII and Cadila 
Pharmaceuticals; in addition to representatives from law firms including 
Luthra and Luthra, K&S Partners and Inventure IP and academics 
including,/inter alia,/faculty from the Asian School of Business, 
Trivandrum, Indian Law Institute, Delhi, Tezpur University, Assam, 
National Law University, Delhi, NALSAR University of Law, Hyderabad, the 
Indian Institute of Technology, Madras and the National Law School of 
India University, Bangalore.

3. *If there were multiple meetings held for the same please provide all 
necessary documents including the minutes of all such meetings, records, 
documents, memos, e-mails, opinions, advices, press releases, circulars, 
orders etc. for all such meetings held (sic).*

The Department answered, “No”; which I’m taking to mean that there 
weren’t other meetings held for the formulation of the Think Tank or the 
Policy. This is interesting, because the Minutes (referred to earlier) 
speak of another inter-ministerial meeting/including IP experts and 
legal practitioners/slated to be held around the 10^th of October, 2014, 
to discuss the framework of the Policy.

4. *If a directive or directives were received by the Department of 
Industrial Policy and Promotion from any other government body to 
constitute such a think tank, please provide a copy of such a directive 
received by the DIPP from any Government authority, to constitute such a 
Think Tank (sic).*

The Department answered, “No”; which I’m taking to mean that there was 
no communication received by the Department to constitute this Think Tank.

5. *Please indicate in detail the process of shortlisting the members of 
the IPR Think Tank by the Department of Industrial Policy and Promotion 
or any other body that was responsible for the same (sic).*

The Department replied that the answer to this was the same as that to 
the first question.


    The Second Response: The Drafting of the Policy

The*second*of the Department’s responses 
<http://cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-february-2015/view>to 
our requests came in the form of separate responses to each of our four 
questions, as under:

1. *Please indicate in detail the process followed by the IPR Think Tank 
constituted by the Department of Industrial Policy and Promotion via 
Public Notice No. 10 (22)/2013-IPR-III dated November 13, 2014 while 
framing the first draft of the National IPR Policy dated Dec. 19, 2014 
(sic).*

The Department stated that the IPR Think Tank conducted its meetings 
independently without any interference from the Department. The 
Department then stated that the Think Tank had received comments from 
stakeholders via a dedicated email id and/conducted the interactive 
meeting with stakeholders while framing the draft on the National IPR 
Policy./

2. *If there was a meeting held to decide on the same, please include 
all necessary documents including the minutes of the meeting, records, 
documents, memos, e-mails, opinion, advices, press releases, circulars, 
orders suggestions etc. related to drafting of such National IPR Policy 
Think Tank chaired by Justice Prabha Sridevan (sic).*

The Department replied that since the IPR Think Tank had decided/its 
process by themselves/(sic), the Department/do not have the minutes of 
the meeting etc. conducted by the IPR Think Tank/(sic). It attached with 
its reply a copy of the press releases announcing the composition of the 
Think Tank and asking stakeholders to submit comments to the first draft 
of the Policy.

3. *If there were multiple meetings held for the same, please provide 
all necessary documents including the minutes of all such meetings, 
records, documents, memos, e-mails, opinions, advices, press releases, 
circulars, order suggestions etc. for all such meetings held (sic).*

The Department replied that the response to this was the same as that to 
the earlier question above.

4. *Please provide all the suggestions and comments received by the IPR 
Think Tank from stakeholders after the DIPP issued Public Notice No. 
10/22/2013-IPR-III dated 13.11.2014 asking for suggestions and comments 
on or before November 30, 2014 (sic).*

The Department replied that the comments and suggestions were received 
by the Think Tank directly and that therefore, the Department was/not in 
a position to provide the same./


    The Third Response: Stakeholder Comments

In its*third*(and final) response 
<http://cis-india.org/a2k/blogs/dipp-response-to-cis-third-rti-request-february-2015/view>to 
our requests, the DIPP replied to our query as under:

1. *Please indicate all the suggestions and comments received by the IPR 
Think Tank by different stakeholders on or before January 30, 2015 on 
its first draft of the National Intellectual Property Policy submitted 
by the IPR Think Tank on December 19, 2014.*

The Department said that/the suggestions and comments on the draft on 
National IPR Policy have been received by the IPR Think Tank directly. 
As such this Department is not in a position to provide the same (sic.)./

*OBSERVATIONS ON THE DIPP’S RESPONSES*

/Prima facie,/the responses by the Department are rather curious, 
leading to a range of oddities and unanswered questions.


    Who Will Watch the IPR Think Tank?

In its response to our first RTI request, the Department quite clearly 
stated that it decided the composition of the IPR Think Tank based on 
discussions in a meeting that it convened, which was also chaired by the 
Minister of State for Commerce and Industry, the parent ministry of the 
DIPP. In the same response, the Department also stated that it had not 
received any directive from any other ministry/government department 
directing the constitution of the IPR Think Tank, leading to the 
conclusion that this decision was taken by the DIPP/the Ministry of 
Commerce and Industry itself. Subsequently however, the Department 
justified its refusal to furnish us with documents leading to the 
development of the first draft of the National IPR Policy (contained in 
our second RTI request) by stating that the IPR Think Tank conducted its 
business without any interference from the Department, and that the 
Department did not have access to any of the submissions made to the IPR 
Think Tank or any of the internal minutes of the meetings etc. that were 
a part of the process of drafting the IPR Policy.

Various press releases by the DIPP have stated that it has constituted 
the IPR Think Tank, and that the purpose of the IPR Think Tankwould be 
to advise the Department on IPR issues. 
<http://dipp.nic.in/English/acts_rules/Press_Release/ipr_PressRelease_24October2014.pdf>Visibly, 
the Department intends for the IPR Think Tank to play an active role in 
shaping India’s IP law and policy, including suggesting amendments to 
laws wherever necessary. It is concerning therefore that on the question 
of accountability of the IPR Think Tank, the DIPP remains silent. It may 
be argued perhaps, that the IPR Think Tank constitutes a ‘public 
authority’ under Section 2(h)(d) of theRight to Information Act, 2005 
<http://righttoinformation.gov.in/rti-act.pdf>(*“RTI Act”*). In that 
case, the IPR Think Tank would have to fulfill,/inter alia,/all of the 
obligations under Section 4 of the RTI Act as well as designate a Public 
Information Officer. Alternatively, given that the IPR Think Tank has 
been constituted by the DIPP and performs functions for the DIPP, the 
Public Information Officer of the DIPP would have to 
furnish_all_relevant information under the RTI Act (including the 
information that we sought in our requests, which was not provided to us).


    Who Are the Stakeholders?

Even a preliminary look at the list of participants at the Meeting 
(based on which the Department constituted the IPR Think Tank) reveals 
that not all stakeholders have been adequately represented. I haven’t 
been able to spot any representation from civil society and other 
organizations that might be interested in a more balanced intellectual 
property framework that is not rights-heavy. T


    What Could’ve been Done?

Setting aside arguments on its necessity, let us for the moment assume 
that this drafting of the National IPR Policy is an exercise that needed 
to have been undertaken. We must now examine what might possibly be the 
best way to go about this.

In 2014, the World Intellectual Property Organization (*“WIPO”*) (based 
on whose approach the Policy seems to have been based- at least in 
part), produced a detailedMethodology for the Development of National 
Intellectual Property Strategies 
<http://www.wipo.int/edocs/pubdocs/en/intproperty/958/wipo_pub_958_1.pdf>, 
outlining a detailed eight step process before a National IP Policy was 
implemented in a Member State. While this approach is one to be followed 
by the WIPO and might not be entirely suited to India’s drafting 
exercise, specific sections on the national consultation process as well 
as the drafting and implementation of national intellectual property 
strategies might prove to be a decent starting point.

(More on this in an upcoming article).


    Where Do we Go From Here?

The DIPP’s responses have left me with more questions, probably the 
subject of more RTI requests. Is the IPR Think Tank a public authority 
for the purposes of the Right to Information Act, 2005? To whom should 
questions of informational accountability of the IPR Think Tank be 
addressed, if there is no information available on the IPR Think Tank, 
and the DIPP claims to have no access to it? Do we need to re-examine 
the draft National IPR Policy given that there has been inadequate 
representation of all stakeholders? What were the suggestions made by 
different stakeholders, and (how) have these been reflected in the first 
draft of the Policy? Was there an evaluation exercise conducted before 
the first draft of the Policy was released in order to better inform the 
formulation of the Policy?

We will be looking at these and other questions as they arise, and 
sending some of these to the DIPP in the form of RTI requests. (Watch 
the blog for more).





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