India's IPR policy suggests no legislative changes are necessary: Kilbride

HC ruling in the DU photocopy case sends a message that it is at odds with IP Index, says Kilbride

India was recently placed among the bottom three out of 45 countries in the US Chamber’s International IP (intellectual property) Index for 2017. The country was ranked last or next-to-last in the previous four editions of the report. In an e-mail interaction with Sudipto Dey, Patrick Kilbride, executive director, International Intellectual Property at the Global Intellectual Property Center, an affiliate of the US Chamber of Commerce, talks about what India needs to do to strengthen its regime of patent, copyright and trademark. Edited excerpts:

How do you explain India’s continued dismal performance on the US Chamber’s IP Index?

Even while the number of countries on the US Chamber International IP Index increased from 11 in 2012 to 45 in 2017, India has remained at or near the bottom of the IP rankings in all five editions. This reflects certain gaps in India’s statutory framework for IP, relative to many other countries. Notable among these are the terms of restrictive patent eligibility, over-broad copyright exceptions and limitations, coercive localisation measures and weak civil and criminal damages for IP infringement. 

The recent Delhi High Court ruling on copy right infringement in University of Delhi copy-shop case seems to have cast a shadow on India’s performance on the IP Index. How fair is this assessment?

The ruling in this case sends a message that is at odds with the core premise of the IP Index — that intellectual property, including copyright rights, should be protected. The ruling implied that in India, intellectual property rights are discretionary. Specifically, the court said, “Copyright… does not confer on authors the absolute ownership of their creations.” This is exactly what copyright is intended to do! The ruling goes on to say, “[Copyright] is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public enrichment,” missing the point that it is precisely the property right vested in law that provides the stimulus for such activity and progress.

The report says that the National Intellectual Property Rights Policy does not address the fundamental weaknesses in India’s IP framework. Could you explain your position?

Notwithstanding significant gaps in India’s IP statute relative to most other countries benchmarked in the Index, the National IPR Policy seems to strongly suggest that no legislative changes to that framework are necessary and even goes so far as to claim the current laws and judicial decisions provide a “stable and legal framework for protection and promotion of IPRS”. 

This rings tone-deaf to the innovators and foreign investors who face real obstacles in the Indian market and it also overlooks the fact that countries that are truly competitive in a global market see TRIPS (Trade-related Intellectual Property Rights) standards as a floor rather than the ceiling. The Indian government still needs to act to address issues such as software patentability, life sciences patents, copyright protection and enforcement, and trade secrets protection.

Do other countries outspend India when it comes to investment in the IP infrastructure?

Arguably, a well-structured IP registration system should be a net asset to the public treasury, even taking into account the resources necessary for a deterrent-level enforcement effort. The real “investment” that is required is a political investment in domestic innovation and it is made by creating a strong property right protected by law for inventive and creative works. The Index shows that as a result of different policy choices, 42 other countries have stronger IP systems than India has.

How will the US pulling out of the Trans-Pacific Partnership agreement impact the move to strengthen the global benchmark for IP standards?

The US is party to comprehensive, high-standard free-trade agreements with 20 nations, in addition to multilateral agreements at WTO. These agreements have played an important role in advancing IP standards globally. Ultimately though, countries make sovereign policy choices that trade agreements can only facilitate. What the IP Index shows is that such choices have important consequences and that countries that invest in strong IP rights tend to outperform their peers in the knowledge economy.