This article is written by Anam Khan, from Hidayatullah National Law University. India has recently been placed on the ‘priority watch list’ of the United States Trade Representative. Keeping this the central theme of the article, various points regarding the IPR laws in India are discussed further. 

Introduction

Intellectual Property Right is a new realm in the modern world. The march of man from caves to computer has completely transformed the functioning of things in the world. The world is seeing a tremendous shift in technical and scientific advancement. As a result of which various new methods, innovations, and processes are being developed day by day. These developments have a lot of potential value and, they are likely to generate good amounts of profit and income for the creators. In the highly globalized world of today, such methods and processes are of prime importance to keep up with fast pace development in the world. India is no exception to this but when compared to other developing nations in the world, it is seen to be lacking behind and has to gain much more. India’s economy even today remains one of the most challenging ones for IP enforcement and protection. While India has made some “meaningful progress” to improve and modify its IP protection and enforcement over the past year, it did not resolve some of the recent and also some long-standing challenges and has rather created new ones. After celebrating the World Intellectual Property Day on 26thof April, IPR laws in India have been on the headlines as it remains on the ‘priority watch list’ of the United States Trade Representative released on 29th April 2020. Accompanying India on the list are China, Russia, Saudi Arabia, Argentina, and Ukraine.

What is the United States Trade Representative?

The United States Trade Representative was set up in the year 1962. It is a government office with the primary function of giving advice to the President on matters related to the U.S trade, and exchange strategy. Another important work that was assigned to the USTR in the year 1989 was the annual release of “Special 301 Report”. The report lists nations according to the lack of “satisfactory and compelling” licensed innovation- IP Laws, which according to this government office acts as a barrier during trade exchange. The task of developing healthy coordination for international trade, commodity, and direct investment policy has also been given to USTR. The head of USTR is called the U.S. Trade Representative, he is a  Cabinet member who serves as the president’s principal trade advisor, negotiator, and spokesperson on all matters related to trade.

USTR’s ‘Priority Watch List’

According to the U.S. Trade Representative’s annual report on IP concerns, the issues related to the patent application and innovative industries continue to be of particularly high concern. India has been accurately placed on the list owing to the lack of proper Intellectual Property Rights protection and enforcement said the ‘Special 301 Report’. The report also identifies various other countries that have some trade barriers with the US companies owing to their poor structure of IP laws. While IP enforcement through the online sphere has gradually improved, there is still a lack of actual benefits for the creators, which adds India to this list. Section 3(d) of its Patent Act, 1970 denies patents on items that are not significantly different from their older versions. The United States wants to continue to engage with India on IP matters. Despite India’s reasoning of limiting its IP protections as their way to promote fair and easy access to technologies, the report has noted that India maintains extremely high customs duties for IP. There are no static lines on which the IPR works. There are changes that happen very often as and when new innovations happen. It is equally important to not only strengthen the existing ones but to also keep up with the new ones. For failing to revise its copyright laws as required under a free trade agreement with the United States Colombia was also added to this Watch List by the U.S.

Concerns about pharmaceutical intellectual property protections, pirated software, and counterfeit goods were factors that have added the United Arab Emirates and Saudi Arabia to the list. For its “coercive technology and transfer practices” and its “trade secret theft, rampant online piracy, and counterfeit manufacturing” China also maintains a spot on the list. 

What is Intellectual Property?

Intellectual Property refers to the creations of the mind: inventions, literary and artistic work, and symbols, names, and images used in commerce. It can be divided into two category-

1. Industrial Property– includes a patent for inventions, trademark, industrial designs, and geographical indicators.
2. Copyright- it covers literary works (novels, plays, poems), films, music, artistic work. Rights related to copyright include those of performing artists, television programs, etc.

Intellectual Property Rights

Intellectual Property Rights are similar to any other existing property rights. They allow creators or owners of the patent, copyright, and trademark work to benefit from their own work or investment in a creation. These rights are mentioned in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests that arise from authorship of any kind of work including scientific, artistic, or literary productions. It was the Paris Convention 1883 for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886) where the importance of having strong intellectual property was first recognized. It is the World Intellectual Property Organization (WIPO) that administers these treaties.

Laws Regarding IPR in India

Intellectual-property in India is administered by the Office of Controller General of Patents, Designs & Trademarks(CGPDTM). IPR has become fundamentally obvious on the legitimate skyline of India both, regarding new resolutions and legal proclamations. India confirmed the understanding of setting up the World Trade Organization, which contains the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Indian Statutes, authorization arrangements, and techniques for contest goals concerning licensed innovation (IP) insurance are presently completely TRIPS-consistent.

What is a Patent?

A patent is a particular right that is granted for an invention of a product or any process that provides a novel way of doing something, or that offers a new technical solution to an already existing problem. It provides its owner with the required protection for their inventions. Protection is normally granted for a limited period, usually for 20 years. It provides desired incentives to individuals by recognizing their creativity and awarding the possibility of material reward for their inventions. These incentives not only encourage innovation but also enhance the quality of human life. Inventions that have been given a patent are present in every aspect of human life, from electric lighting (patents held by Swan and Edison) to magnetic resonance imaging (MRI) (patents held by Damadian). In return for protection of the innovator’s invention, all owners are obliged to publicly disclose information on their inventions in order to enrich the technical knowledge in the world.

What is a Trademark?

A trademark may be a distinctive sign that identifies certain goods or services produced or provided by a private company or a corporation. Its origin dates back to the traditional times when craftsmen reproduced their signatures, or “marks”, on their artistic works or products of a functional or practical nature. Over the years, these marks have evolved into today’s system of trademark registration and protection. The system helps consumers to spot and buy a product or service supported whether its specific characteristics and quality – as indicated by its unique trademark – meet their needs. Almost all countries within the world register and protect trademarks. Each national or regional office maintains a Register of Trademarks containing full application information on all registrations and renewals, which facilitates examination, search, and potential opposition by third parties. The effects of the registration are, however, limited to the country (or, within the case of regional registration, countries) concerned.

What are Copyrights and Related Rights?

Copyright laws grant authors, artists, and other creators protection for his or her literary and artistic creations generally mentioned as “works”. “Related rights” are similar to the rights related to copyright and they include rights similar to or simply like those of copyright, although sometimes in brief and for a shorter duration. The beneficiaries of related rights are the performers (such as actors and musicians) and their performances; producers of phonograms (for example, compact discs) in their sound recordings; and many more. Works that can be covered by copyright include novels, poems, plays, reference works, newspapers, etc.

Authorizing IP rights in India

IP rights can be authorized by carrying activities to the common courts or through the criminal arrangement. India’s IP laws set out techniques for both common and criminal procedures, so does the Competition Act. Criminal procedures don’t make a difference to patent and structure encroachments. A hindrance to a common suit is that you are probably not going to recuperate huge harms and corrective harms against an infringer are uncommon. In any case, in the event that you have a recognized infringer, it might be fitting to dispatch the prosecution, provided that a between time order is conceded the encroachment can be ended pending the result of the case. Harms are routinely granted in instances of copyright theft and exchange mark encroachment (which go under criminal suit); less so in patent cases. Throughout the years, be that as it may, rulings for remote organizations against neighborhood infringers have exhibited the legal executive’s unprejudiced methodology. As in different nations, the Indian Government activates criminal cases, despite the fact that as rule activities follow objections to officers or police specialists by rights proprietors. Criminal procedures against infringers convey the possibility of a lot of harsher cures, including fines and detainment. Intercession or arrangement with an infringer can likewise be viable as an elective type of question goals.

Why Protect and Promote IPR?

There are several compelling reasons. First, the progress and well-being of humanity rest on its capacity to make and invent new works within the areas of technology and culture. Second, the legal protection of the latest creations encourages the commitment of additional resources for further innovation. Third, the promotion and protection of property spurs economic process, creates new jobs and industries, and enhances the standard and delight of life. An efficient and just property system can help all countries in a better understanding of intellectual property’s potential as a catalyst for economic development and social and cultural well-being. The property system helps strike a balance between the interests of innovators and thus the overall public interest, providing an environment during which creativity and invention can flourish, for the benefit of all.

Salient Features

• Intellectual property rights recognize creativity and human efforts, which add fuel to the growth of humankind. Some examples:

1. The multibillion-dollar film, recording, publishing, and software industries – which bring pleasure and luxury to so many people worldwide – would not have existed without any copyright protection.
2. Consumers would have no way to confidently buy products or services without any reliable, international trademark protection and enforcement mechanisms. 

• The World Intellectual Property Organisation administers a number of international agreements that deal with the protection of indications  WIPO meetings offer their Member States and other interested parties the opportunity to explore new ways of enhancing the international protection of geographical indications.

Criticism

India’s licensed innovation (IP) enactment covers each noteworthy part of the security of IP. The guidelines identifying all types of IP have been corrected or reissued as of late, primarily in light of  India’s promotion to the World Trade Organization in 1995. Albeit Indian IP law is careful and for the most part tantamount with European IP laws, there are still noteworthy worries over IP requirement. A significant reason for worry in authorization is a bureaucratic postponement, with a build-up of cases at both the common and criminal courts. This implies cases can run for a long time or more. There is likewise an absence of straightforwardness, especially at a nearby level. A critical element of the IP condition in India is the huge number of little players encroaching IP rights. This implies seizures will, in general, belittle, which requires a continued and monetarily depleting exertion all together to have an effect. A preferred position for UK organizations working in India is that the legitimate framework depends on precedent-based law, as in the UK, so the basic procedures are recognizable.

Self-help considerations

There are many things one can do to make it difficult for infringers to copy our product. For example:

1. One must have such original designs that are not easy for others to copy; 
2. One must have effective IP-related clauses in employment contracts before hiring employees; 
3. Have good physical protection and also destruction methods for documents, drawings, tooling, samples, machinery, etc.; 
4. Make sure there are no ‘leakages’ of packaging that might be used by counterfeiters to pass off the fake product; and
5. Check production overruns so that you can make sure that genuine product is not being sold under a different name.

Scope of improvement

The most effective way to avoid problems while defending IP rights in India is to be prepared. To make sure that one can are prepared to anticipate any potential issues, one must try to do the following-

1. take advice from IP rights experts in India at an early stage on how one can  protect their IP – prevention is better than cure;
2. carry out a risk assessment and due diligence checks on any organizations and individuals you deal with;
3. talk to other businesses  that are already doing similar business in India;
4. consult agents, distributors, and suppliers on how best to safeguard your rights; and
5. check with the trademark or patent attorneys to see whether there have been previous registrations of your own marks, or other IP, in India.

Conclusion

India coming under the USTR ‘priority watch list’ has again brought its IP laws under the scanner. There have already been long-standing concerns about the fallacies and need for improvement in the IP laws in the country. As the World is marching to an era of absolute technical advancement, it is imperative that the creators and innovators are given their fair share of rights and freedom. While there are other countries accompanying ideas on the list, it is true that innovators do not get their fair share of rights and remain at inadequate levels. Despite India’s reasoning of limiting IP protections as a way to promote access to technologies, India maintains extremely high customs duties directed to IP-intensive products such as medical devices, pharmaceuticals, information, and communications technology products, solar energy equipment, and capital goods.

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