By Ashrujit Basu

“Piracy begins where creativity ends.”  ― Kalyan C. Kankanala – IP LAWYER AND WRITTER OF BEST SELLING IP THRILLERS

Since the midnight’s children to be the witness of Globalization, Indians have experienced a lot since India’s inception as a sovereign, socialist and Democratic Country.

 

 

 

 

 

 

 

 

India has entered into Globalized Era many decades ago and India’s Intellectual Property Law is already complying with WIPO ( WORLD INTELLECTUAL PROPERTY ORGANIZATION ) and TRIPS (  The Agreement on Trade-Related Aspects of Intellectual Property Rights ). This is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members. However, being a superpower, India was lacking in proper implementation of it’s IP Policy for strengthening its position as destination of Business and Trade Investment.

When current Modi Government came into power in the year of 2014, since then PM Narendra Modi trying to establish a mechanism for “Easing Doing Business in India “. He has also launched pilot MISSIONS Like #MAKEININDIA, #SKILLINDIA #DIGITALINDIA and last but not the least #STARTUPINDIA_STANDUPINDIA.

However, these Missions will only become effective when there’s an effective and implemented Intellectual Property Law. In order to address the need, Ministry of Commerce & Industry along with Department of Industrial Policy and Promotion introduced the final draft of India’s national intellectual property policy. This draft was for inter-ministerial consultation would had been sent to the Cabinet for approval after receiving comments nearly a year ago.

Then finally, on 13^th may, 2016 India’s First Intellectual Property Policy (IP POLICY) was unveiled to the public at large, making a promise of “Creative India, Innovative India”.

Highlighted Areas of IP Law that has been covered by the Policy:

In regard to Copyright:

 

( i ) The administration of the Copyright Act 1957 along with the office of the Registrar of Copyrights, under the Department of Higher Education, is being transferred to the Department of Industrial Policy and Promotion.

( ii ) Amendment of Indian Cinematographic Act, 1952 for making it more unfriendly with Piracy .

( iii ) Introduction of Copyright Search Service, with a Database of registered copyrighted material.

( iv ) Expediting Copyright services

( v )  Take urgent measures for effective management and administration of copyright societies to ensure transparency and efficiency in the collection and disbursement of royalties for the best interest of the right holders. Copyright Societies are those who is responsible for collecting Royalties from the various user groups on behalf of Artists.

In regard to Patent, Trademark and Design

 

( vi ) Expedite processing of  applications, that’s trademark Registration within 1 month by 2017 also addressing backlog of nearly 2 lakhs new applications.

( vii )  ‘Tatkal (instant)’ option offered under the latest amended patent Rules. These benefits will also be available to entities that file their first application in India.

( viii ) Introducing online search & filling for INDUSTRIAL DESIGNS.

In Regard to other Laws

 

 ( ix ) Empowering Cinematographic Act, which have already been discussed above, other than that creating IP related interfaces for Competition Act, and reviewing other Acts and Rules for harmonizing with Intellectual Property laws.

In regard to Education

 

( x ) Introducing IP as a subject matter at school curriculum, setting up online  and offline IP training courses for building up IP awareness.

Deal for Entrepreneurs:

 

India is being considered as one of the startup hubs with cities like Delhi, Hyderabad, Bangalore and Mumbai taking the lead. India has seen an enormous growth in regard to creating support vessels for early stage or pro-funded Startups’ growth. Many private or publicly funded missions has already been initiated to drag and drop startups in Indian subcontinent, but my personal option has always been catering the need for innovation, and building up facilities where product based startups can be nurtured and build awesome products. Encouraging Entrepreneurs’ to INVENT first, we need to give them reason for INNOVATION, that’s called incentivizing.

Incentivizing by way of giving them a monopolistic RIGHT to Produce and Market for 20 years, Tax benefits, and expedite approvals for speeding up production.

So in order to address the need, Indian Government already launched Startup India Mission and this new IPR Policy will be using as a fuel into it.

Although, Indian Patent System will still continue to prevent Evergreening of patent under existing sec 3 (d) of Indian Patent Act. Evergreening refers to a variety of legal, business and technological strategies by which producers extend their patents over products that are about to expire, in order to retain royalties from them, by either taking out new patents. Stopping Evergreening in Indian Patent landscape does affect  global Pharmaceutical Companies, but irrespective of continues pressure from US Pharmaceutical Association and other relative lobbyist, India took a major step by not vouching for EVERGREENING. However, that’s actually helping Indian Drug Manufacturers to produce generic drugs and also obtaining COMPULSORY LICENSE which is a kind of license granted after evaluating an application for revoking a Patent Rights for the common good of public at large. This is also encouraging R&D including open source based research such as Open Source Drug Discovery (OSDD) by the Council of Scientific and Industrial Research (CSIR) for new inventions for prevention, diagnosis and treatment of diseases, especially those that are life threatening and those that have high incidence in India.

It’s said that getting a Patent Approval is very time consuming in India, sometimes it takes nearly 5 years of total timeline for Patent Grant that too after paying hefty prices for Statutory fees and Attorney cost. Even Mr. Narendra Modi also aware about the pain in ass for inventors and entrepreneurs, that is why he addressed the same issue during his speech at the time of unveiling STARTUP INDIA Mission, in order to address this pain point.  IPR policy will also curbing the total timeline by introducing TATKAL facility and reducing the Statutory Fees for Entrepreneurs and Inventors by amending Patent RULE, and will also provide Tax benefits for inventors and Makers.

This will surely encourage Entrepreneurs to go for patenting their state of the Art Technology.

Research and Development is a major step for pre or post Product launch, this new Policy also includes support verticals for R&D process and easy funding norms for the same.

Apart from Patent, IPR Policy also addressed other IP products like Geographic Indication and looking forward to give a diverse opportunity in terms of Marketing in wide level. A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place, e.g Mango of Malda ( W.B ) which is having its own segmented marketplaces in India and abroad. So now startups solving marketing problems in indigenous segments like Indian handicrafts now can avail benefits from this Policy framework.

Valuation for IP or Intangible assets non- liquidated yet, although many methodology is already there but no single window methodology ever provided at policy level for subtracting actual value from IP Products, previously Indian Accounting Standard definitely tried to solve this problem by introducing IAS 38 but that’s moreover for Intangible assets not exactly for Intellectual Properties. But this new policy promised to implement proper guidelines for the same. On the other hand, it’s already been declared that IP Assets can be mortgaged for raising funds. So Startups now can look for this alternative means of fund raising. This policy also empowers social entrepreneurs like craftsman, Artisans’, farmers by providing IP friendly loan and linking up Venture Capital and Angel Funds for the development and Commercialization of IP Assets.

What’s NOT in the platter:

 

• This policy is still silent about Software Patenting Issue in India
• Even no clear directives towards IP protection and monetization for emerging Techs like Internet of Things ( IOT ), Virtual and Augmented Reality and Gaming.
• No promises of strengthen copyright Protection for Software neither for online marketplaces.
• No directives towards UX and UI protection through Industrial Designs.
• No clear prospective on prototyping laws and protecting and commercializing subsequent IPR issues while prototyping.
• The whole 30 pages exhaustive policy document made without any supportive empirical data.

But irrespective of all its flaws; this is India’s first Intellectual Property Policy which is subject to be validated by proper ACTION.

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