[Ip-health] India's IPR Policy: A Missed Opportunity

Achal Prabhala aprabhala at gmail.com
Wed May 25 00:29:23 PDT 2016

Sudhir Krishnaswamy and I have a piece in The Hindu today on trying to 
make sense of India's bewildering IPR Policy, which might be of interest:



  Patently a missed opportunity

  * Achal Prabhala <http://www.thehindu.com/profile/author/achal-prabhala/>
  * Sudhir Krishnaswamy

    India’s first IPR policy trots out the worn western fairy tale that
    more IP means innovation, and encourages the pointless privatisation
    of indigenous knowledge

India’s National Intellectual Property Rights (IPR) Policy 
released in mid-May, is a bewildering document. There are two ways to 
read this policy. The first is as a gigantic exercise in dissimulation, 
with a terse declaration — India is not changing its IPR laws — tucked 
inside a mountain of hot air to keep the U.S. and the European Union 
warm and happy. The other way to read it is as a serious attempt to make 
policy of tremendous national significance. A serious reading, however, 
reveals critical problems.

The National IPR Policy is keenly concerned with generating “awareness” 
of intellectual property (IP) in the country. (So much so that the word 
“awareness” appears at least 20 times in the policy.) The policy calls 
for nothing less than a new gold rush towards IP — roping in everyone 
from university professors to people in “rural and remote areas”.

*IP and innovation*

On the face of it, a policy to grow IP, commercialise it 
and thus drive economic growth sounds plausible. Unfortunately for us, 
it is not. First, innovation thrives in an environment where access to 
knowledge is real and substantial. We need knowledge to make knowledge. 
A key driver of access is openness. The Indian government, as the 
largest funder of research in the country, could have mandated that this 
research be made accessible to scholars through open copyright 
licensing, but has chosen to abdicate this responsibility. Second, while 
innovation is a desirable economic goal for any society, the academic 
consensus is that IP is not a good measure of innovation. Innovation is 
largely driven by forces other than IP law, and the policy shows no 
signs of understanding this tenuous connection. Third, conflating IP 
with innovation can be dangerous. IP signifies activity — the activity 
of producing IP. For this activity to be useful, it must generate value 
in a society, by being commercially or otherwise licensed and brought to 

What does a reckless policy of confusing IP for innovation lead to? 
Something like the situation with the Council for Scientific and 
Industrial Research (CSIR) today: lots of patents, lots of money spent 
on those patents, and little to show beyond the noise. CSIR has been 
lauded for the number of patents it holds. These patents — all 4,500 of 
them — are touted as evidence of a public institution that is 
innovating. CSIR claims that many of these patents have been licensed, 
but refuses to reveal if it has earned anything from these licensees. 
While we do not know if CSIR has earned a single rupee from patenting, 
we do know what CSIR spent on patenting: Rs.74 crore over a period of 10 
years, and that’s not counting the huge overheads incurred in the 
process such as salaries and research costs. Still, those patents have 
done their job. On paper, the institution is considered a remarkable 
success story of innovation. In practice, however, it is hard to see how 
CSIR’s senseless patent quest can be considered anything other than a 
massive waste of public money.

*The traditional knowledge trap*

If there is one thing the National IPR Policy 
is more concerned with than awareness, it is traditional knowledge. (Our 
traditions are invoked 22 times through the document.) This is a 
chestnut so old, it has become positively stale. The charge that IP is a 
neocolonial conspiracy to appropriate and pirate our ancient knowledge 
is one that has found echoes in India at least since the 1980s. This 
report appears to turn that charge on its head by now concluding that 
the heart of domestic innovation lies in the remaking of our traditional 
knowledge as IP.

This change in perspective is not grounded in any analysis of existing 
efforts to protect indigenous knowledge. Our Geographical Indications 
law has been in force for 15 years, and government initiatives to 
increase registrations have been reasonably successful. The Biological 
Diversity Act is of similar vintage, but has only been enforced with 
seriousness in the present decade. Have these laws resulted in 
substantial benefits to any community which originated a form of 
traditional knowledge? Has legal protection spurred the regeneration of 
traditional knowledge? In the absence of concrete evidence that either 
objective has been satisfied, it is unclear why India should carve out 
larger property protections in this domain. Organisations like the World 
Intellectual Property Organisation 
(WIPO) would probably be happy if we did; they want us to believe there 
is a pot of gold at the end of that rainbow. But there is no gold, so we 
will not find it. What rich countries know is that our quest to protect 
traditional knowledge will ensure that we remain enthralled by the IP 
myth, thereby allowing their own IP to lucratively flourish in poor 
countries around the world.

The National IPR Policy makes it clear that we will not roll back any 
aspects of Indian patent law, which was amended in 2005 to comply with 
World Trade Organisation (WTO) rules. For this strong statement, the 
authors of the policy must be congratulated — it is perfectly correct to 
assert that our laws are compliant with the WTO, however much they might 
rankle the U.S., the EU, and other rich countries. Unfortunately, almost 
every other assertion in the policy contradicts the principles espoused 
in our patent law. The Indian patent law extols a philosophy of 
minimalism — less is more. With the new IPR policy, this minimalism is 
now inexplicably shrouded in a cloak of maximalism, the lesson 
apparently having been revised to mean more is more.

The most significant achievement of the 2005 amendment to our patent law 
was a high bar 
for innovation, thereby restoring sanity and balance to a system run 
amok: it was designed to reward real innovation, rather than the tweaks 
pharmaceutical companies the world over use to justify extending their 
monopolies — and their high prices. The Indian system of supporting both 
innovation and access to medicines was an innovation in law-making, and 
after a long, hard, slog, culminating in a Supreme Court ruling in April 
2013 that ratified our law, the world sat up and took notice. Later that 
year, South Africa announced its decision to amend the country’s patent 
law along the lines of Indian law, and Brazil launched a bill supported 
by the then ruling Partido dos Trabalhadores, with exactly the same 
intent. To follow through, what these countries require is the 
unwavering confidence of the Indian government in its own patent law. 
Unfortunately, you would have to read between the lines to find that 
confidence in this policy. This is a shame, for we could have used our 
patent law to take a bold, strong leadership position across the world.

India’s first IPR policy was an opportunity to embrace the spirit of 
India’s innovative patent law, as well as the collective systems of 
knowledge we have fostered through millennia, which, taken together, 
emphasise innovation, access and openness. India’s National IPR Policy 
fails to grasp this opportunity. Instead, it trots out the worn western 
fairy tale that more IP means innovation, encourages the pointless 
privatisation of indigenous knowledge, and egregiously fails innovation 
by doing nothing to make public research accessible to the people who 
pay for it.

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