The Department related Parliament Standing Committee on Commerce recently submitted its 161st Report on Review of the Intellectual Property Regime in India (“the report”). The Committee which was constituted on the 13th of September, 2020 was headed by Shri V Vijayasai Reddy.
The report which was presented to the Rajya Sabha on 23rd July 2021 was brought forward considering the need to establish a robust and effective regime in relation to Intellectual Property Rights, for encouraging and incentivizing innovation and creativity along with securing the collective interest of the society.
The Committee recognizes that a fair balance between private and public interests can be achieved only by establishing an IPR ecosystem that enables an environment of research and innovation that is consistent with larger public interest while ensuring a fair competition in industrial, economic, social, scientific and technological spheres. The Committee, through the report, aims at analysing the overall scenario of IPR regime in India, as well as examines the challenges faced in strengthening the same.
Recommendations made by the Committee:
● Importance of awareness of Intellectual Property Rights
The Committee, in its report, opines that the National IPR Policy of 2016 should be reviewed by the Department for Promotion of Industry and Internal Trade (DPIIT), and that this re-assessment should focus on introducing changes like elaborating more on the expanding innovation ecosystem of the country, organization of awareness drives on IPR, all-inclusive advisories on increasing Research and Development activities, promoting IP financing as well as the involvement of State Governments in developing a robust IPR regime by formulating their own strategies and policies. It is also stated that the Department should hold annual meetings with all States and Union Territories for the proper monitoring of the policy implementation.
In view of the significance of IPR in increasing Foreign Direct Investment of countries, it was recommended that the Department should undertake a comprehensive study of the consequential benefits of improvement in IPRs on the economy, specifically in relation to GDP, employment generation, augmenting forex reserves, and increasing exports.
The Committee, on identifying the unimpressive and low number of filing and grant of Patents in India as compared to that of U.S and China, recommended the Government to emphasize upon increasing the spending on R&D activities by allocating specific funds on the same in each Department or Ministry. The Committee in its report, also recommends providing incentives to private businesses and companies for undertaking R&D activities in order to enhance research capabilities of the country. Apart from this, the establishment of an exclusive apex level Institution for IPR development in the country in order to bring forward the full potential of IPR for economic and social growth has also been provided as a recommendation. This Institution, according to the committee, would also assist in developing a pool of IPR professionals in different sectors such as policy and law, strategy development, administration and enforcement; and assist IPR in areas like policy development, teaching, research and skill building.
The Committee also identifies the issue of lack of awareness about IPR amongst Indians and observes the same as the reason behind the low share of patents filed by domestic entities compared to foreign entities. In its report, the Committee states that this lack of awareness is leading to a situation where the innovators and creators in the country are being denied the benefits of IPRs. In light of the same, the Committee recommends the Departments to create awareness amongst MSMEs, small businessmen, traditional artisans and craftsmen about the protection of their IPRs. It also recommends the involvement of NGOs in this process of dissemination of awareness. Similarly, the committee also highlighted the need for creating awareness amongst farmers and farming communities when it comes to the topic of agriculture and IPR.
In addition to the above, the Committee also recommends the following interventions to be taken by the Department for building greater awareness about IPRs:
(a) Establishment of IPR Facilitation Centers in Tier I, Tier II and remote regions of the country, in order to increase awareness of MSMEs, small businessmen and traders;
(b) Organize training programmes and workshops;
(c) Promoting MSMEs registering for IPRs in foreign countries, and provide them with assistance to make them globally competitive;
(d) Introduction of IP courses and curriculum in schools, colleges and management schools. Training programmes, workshops and conferences related to IPR should be organized for students and teachers; and
(e) Organize interactive workshops for journalists to make them aware of the significance of protecting IPR.
Further, in addition to recommendations on provisions related to IP funds, the Committee also recommends the Department to establish a Central Coordination Body on IP enforcement for undertaking coordinative efforts by involving various Ministries, Departments and Government Agencies in enforcement and adjudication of IP laws to check IP related crimes in the country. Moreover, the Committee also recommends the enactment of a specific legislation to curb counterfeiting and piracy in India.
Additionally, the Committee brings attention to the need to reconsider the abolition of IPAB under the Tribunals Reforms (Rationalization and Conditions of Service) ordinance, 2021 due to the significant role it plays in the adjudication of IPR appeals and cases. On the other hand, it recommends the re-establishment of IPAB with structural autonomy, infrastructural and administrative reforms, as well as ensuring timely appointment of officials and experienced manpower.
● Amendments to Legislations
The Committee has recommended amendments to the Patent Act as well as the Copyright Act. The proposed amendments to the Patent Act can be listed as follows:
(a) Section 3(b) of the Act to be amended to introduce a provision of safeguard mechanism against the arbitrary exercise of power by the Controller in declining patents.
(b) In relation to section 3 (c), the Department is recommended to explore the feasibility of granting patents to non-living substances occurring in nature under the act.
(c) In relation to Section 3 (j), it has been recommended that an analysis be conducted by the Department, on approving the patents on plants and seeds favourable to the agriculture sector of the country.
(d) Amendment to Section 122(2) to modify the provision of imprisonment of six months in case of furnishing false information as it is too stringent, and replace it with a lenient punishment like monetary penalty.
(e) Amendment of Section 11B, to shorten the timeline to file an examination report from 4 years to a reasonable time frame, in order to avoid unnecessary delay.
(f) Amendment to Section 21(1) so as to provide a flexibility to allow minor errors and lapses to prevent outright rejection of patents, thereby preventing discouragement to the patentees.
(g) Amendment of Section 104 to promote establishment of ADR mechanism for ensuring speedy justice to patentees.
In relation to amendment of the Copyright Act, the following recommendations were made:
(a) Firstly, the Committee seeks for the amendment of Section 31D of the Copyright Act, 1957 for including “internet or digital broadcasters” under statutory license in view of the rise in digital or OTT platforms with manifold increase in music as well as movie applications and its noteworthy contribution to economy.
(b) It recommends increasing the renewal time of copyright societies from 5 to 10 years.
(c) Recommendation was also made to facilitate a fair and equitable ecosystem of literary culture in the country by introducing changes in Section 51(1) such as permitting reprographic works in Government-owned educational institutions and providing easy access to it for students.
(d) Recommendation was made to promote establishment of community libraries and upgradation of existing libraries in the country.
(e) Recommendation was also made to undertake a comprehensive study of provisions under the Berne Convention to establish a copyright regime beneficial to both copyright holders and the public.
● Recommendations in relation to specific IP:
The Standing committee has also addressed and provided recommendations in relation to other forms of Intellectual Property.
In relation to traditional knowledge and IPRs, the Committee recommends that India should engage at the international level for the protection of Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources to prevent the exploitation of the same by other countries.
The committee also made another noteworthy recommendation in the report. Recognizing that the labelling of products as ‘patent pending’ yields marketing benefits to the patents and acts as a deterrent to IP crimes, the committee recommends the Department to discover ways to incorporate the practice of marking products with ‘patent pending’ tag in India.
While addressing the topic of trade secrets, the Committee recommends the Department to consider the possibility of enacting a separate legislation for protecting the same.
● IP and Current Events
The Committee was also active in discussing recent developments and events, and while covering the same, addressed topics like the massive emergence of Artificial Intelligence related inventions, as well as the Covid-19 pandemic. The Committee was cautious to address the issue of compulsory licensing in the light of the Covid-19 pandemic. In this regard, the Committee recommends that the Government should investigate into the outlook of temporarily wavering patents rights and issuing Compulsory Licensing to tackle the inadequacy in the availability of Covid-19 vaccines and drugs during an emergency situation caused by the pandemic.
Another interesting recommendation made by the Committee is in relation to the creation of a separate category of rights for Artificial Intelligence (AI) and AI related inventions and solutions for their protection as IPRs. This recommendation was made in view of the huge benefits that AI related innovations can provide to the Indian economy. The Committee further recommends that the Department should work to review the existing legislations of The Patents Act of 1970 and Copyright Act of 1957 to include the emerging technologies of AI and AI related inventions in their domain.
It is clear that the Parliamentary Standing Committee on Commerce in its Report on Review of the Intellectual Property Regime in India, has sought to cover all important aspects in relation to the advancement of IPR in the country. This includes recommendations in relation to the legislative level as well as those related to the implementation level.
This article has been authored by Ms. Anjana Gopinath.