The National IPR Policy - it's time to act
Published: Jul 26, 2016
EVERYONE welcomed the announcement of "the National IPR Policy" on the 13th of May 2016 by the Union government. The policy was praised as 'a great step forward for India'. The policies are aimed at increasing the IPR outreach, speed up approvals and enhance commercialisation. In other words, the policy is said to lay the future road-map for IPR in India. It is also cited to be a device to ensure all aspects of compliance with the global norms.
On a quick look, I wondered as to how a mere policy statement can bring about changes in the administration and functioning of IPR in India where the enacted Laws have failed to do so. The IPR Laws of India meet the international standards as required under TRIPS. Despite this, the implementation of such laws has always remained inadequate and wanting.The administration and enforcement mechanisms in place have remained disappointing. In such a grim situation, I always believe that a policy statement, only when implemented in letter and spirit, can enable everyone to reach the objectives set out therein. Prima facie, a policy merely provides a direction to all the stakeholders to work together towards the intended goal. Only when everyone plays their role effectively, the assumed destination could be reached. Otherwise it remains an articulated piece of writing and nothing beyond. Therefore, it is time for every stake holder to introspect, play their part to the hilt, so that the benefits aimed at by the policy could be accomplished.
To all the concerned it is very important to note that this policy is not a legal instrument that could be enforced through due process of law. It is not a legislation that could be enforced in a court of law. It is only a statement of cherished goals towards which everyone is expected to march. Therefore, instead of merely praising the instrument, it is time for everyone, to understand the reality, stand up and act swiftly so that the rights conferred under IPR laws remain relevant.
The above observations could be better understood by perusing the document and strategise by filling the void with specific action plans. The opening part of the policy statement aims at holding the outreach and promotional programmes to spread the awareness about IPR amongst all sections of society . This could be achieved only when persons who are in the know of IPR and its benefits, take up appropriate measures to spread the awareness about the economic, social, and cultural benefits. This cannot be done by the Government and its institutions alone. Every educational institution should take up this as an important objective and create awareness among the youth pursuing education in its organisation. The teachers are to be suitably trained to redeem this objective. Waiting for government sponsored courses, which never reaches on time or every time, will not bring in the aspired changes. It has to be undertaken by everyone concerned so that the knowledge and benefits of IPR reaches every remote corner of our country. By such an initiative the goals as visualised in the policy could be achieved.
Another important target aimed at in the policy is regarding the generation of IPRs. This is possible only when all the R&D institutions, universities and technical institutes work in tandem actively. There is urgent need to encourage innovation, provide funds and motivate the persons so engaged in research. Further they must be encouraged to work with the MSMEs, start-ups and entrepreneurs to see that the processes and products created with IPR tags are properly commercialised and exploited.
Similarly there are also aspirations envisaged in the policy as regards to providing effective legal and legislative framework, to modernise and strengthen service-oriented IPR administration. Unless all stakeholders insist for such a mechanism to be set up, it is not going to happen on its own. We need to watch, monitor, follow, advice and work at every stage with the appointed executives at suitable intervals and places, to enable this to come about. The users need to seek assistance from such designated authorities whenever problems appear. Then alone the government can respond and bring about a change. This is true in respect all such aspirations recorded in the policy. The Cell anticipated to be constituted for IPR Promotion and Management (CIPAM) could be effective and functional only when all stakeholders actively interact with such a unit.
Another important aspect discussed in the policy is on the commercialisation of IPRs. After due grant of exclusive rights, the right holder must be able to commercialise and market such product, and to derive profit from such transactions. By doing so, the purpose for which IPRs are created, namely 'monetising of innovation' gets served. In the policy,it is stated that "it aims to enable Indian companies to get value for IPRs through commercialisation". For this purpose the government has come out with various schemes for entrepreneurs, which should be suitably propagated and utilised by IPR supporters. Similarly the intended creation of the public platform to function as a common database could be effective by fitting contribution by all stakeholders to make it as one of the best instruments to rely on.
Any right conferred would make sense only when the right holder, upon any infringement, is able to enforce her/his rights in a fair and judicious manner expeditiously. As stated earlier, this policy is not a legal instrument and no action could be initiated to legally enforce its assurances. The document expressly asserts that legal remedies to IPR owners seeking enforcement of their rights in the matters of infringement will be ensured. I t vouches to enable smooth adjudication procedures and timely remedies by the law enforcing authorities. It is a fact that despite the comprehensive IPR laws in existence, we have utterly failed to achieve this ambition. Of course, this is not the situation in respect of enforcement of IPR laws alone. It is true in respect of IT Laws wherein the Tribunal is not functioning since over two years. [See In Quest of 'Person'- Challenge Caused by Cyber Law.] In the dynamic and ever-growing digital era, proper enforcement mechanism is the primary key that could lead us to successful digital India. But we have not been able to achieve this as the authorities are not acting on time to make the tribunals functional. This is also true about the general litigations system in place in our country. In this regard, readers may recollect the recent declaration of the honourable Chief Justice of India regarding the vacancy position in the judicial system. Therefore the policy statement cannot serve any useful purpose, unless suitable members are inducted into the system. In this regard, the concerned stakeholders need to take up the matter seriously with the executives and government authorities, so that the expected aspirations could be achieved, or else it remains a mere mirage.
In the policy, it is further vowed to identify and check the 'counterfeiting and piracy' by suitable interventions and enforcements. When the enacted laws have failed to control the menace of 'counterfeiting and piracy', it is hard to believe that a policy can bring about a change.Our music industry has collapsed and the film industry is in the process of losing its hold.The pirated articles are sold without any hindrance. The counterfeiting of goods is taking place unabated. Even the pharma industry has suffered a huge set back due to availability of Misbranded, Adulterated, Spurious and Counterfeited medicines (MASKed medicines) (Kindly read my article - Forbid the Masked Medicines). The enforcement agencies have expressed their inability to rise to the occasion and deliver, as their existing manpower is not sufficient even to handle the traditional core crimes. It is interesting to wait and watch how the authorities transform the existing situation to fight against 'counterfeiting and piracy'.
In such a scenario, one of the ways the stakeholders and educators can chip in is to educate the enforcement agencies suitably so that proper criminal procedures are used to curb counterfeiting and piracy. For this to be further successful, the judges and public prosecutors need to be educated. More than all of them, the common man, being the ultimate consumer needs to be educated so that she / he does not buy such illegitimate products.
The primary aim of the policy viz., 'to harness the full potential of IPRs for economic growth' is possible only when the proper Human Capital is identified, nourished and developed. This matter also finds a place in the closing part of the policy. This is the vital key for the success of the policy. The policy, prepared and introduced with much fanfare, is to be implemented meticulously. Otherwise such an exercise is futile and serves no purpose. Therefore, it is time for every stake holder to come together, to understand and play their part, and to work towards reaching the set ideals and goals rather than merely wait and watch. It is also the right time for all stakeholders to understand their responsibility and act in unison so that the purpose for which IPR instruments are created could be achieved.
(The author is Superintendent of Central Excise and Customs, Faculty, National Academy of Customs, Excise and Narcotics (NACEN), Bengaluru and the views expressed are strictly personal.)