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Patently a missed opportunity -Achal Prabhala and Sudhir Krishnaswamy
-The Hindu

India’s first IPR policy trots out the worn western fairy tale that more IP means innovation, and encourages the pointless privatisation of indigenous knowledge

India’s National Intellectual Property Rights (IPR) Policy, released in mid-May, is a bewildering document. There are two ways to read this policy. The first is as a gigantic exercise in dissimulation, with a terse declaration — India is not changing its IPR laws — tucked inside a mountain of hot air to keep the U.S. and the European Union warm and happy. The other way to read it is as a serious attempt to make policy of tremendous national significance. A serious reading, however, reveals critical problems.

The National IPR Policy is keenly concerned with generating “awareness” of intellectual property (IP) in the country. (So much so that the word “awareness” appears at least 20 times in the policy.) The policy calls for nothing less than a new gold rush towards IP — roping in everyone from university professors to people in “rural and remote areas”.

IP and innovation

On the face of it, a policy to grow IP, commercialise it, and thus drive economic growth sounds plausible. Unfortunately for us, it is not. First, innovation thrives in an environment where access to knowledge is real and substantial. We need knowledge to make knowledge. A key driver of access is openness. The Indian government, as the largest funder of research in the country, could have mandated that this research be made accessible to scholars through open copyright licensing, but has chosen to abdicate this responsibility. Second, while innovation is a desirable economic goal for any society, the academic consensus is that IP is not a good measure of innovation. Innovation is largely driven by forces other than IP law, and the policy shows no signs of understanding this tenuous connection. Third, conflating IP with innovation can be dangerous. IP signifies activity — the activity of producing IP. For this activity to be useful, it must generate value in a society, by being commercially or otherwise licensed and brought to market.

What does a reckless policy of confusing IP for innovation lead to? Something like the situation with the Council for Scientific and Industrial Research (CSIR) today: lots of patents, lots of money spent on those patents, and little to show beyond the noise. CSIR has been lauded for the number of patents it holds. These patents — all 4,500 of them — are touted as evidence of a public institution that is innovating. CSIR claims that many of these patents have been licensed, but refuses to reveal if it has earned anything from these licensees. While we do not know if CSIR has earned a single rupee from patenting, we do know what CSIR spent on patenting: Rs.74 crore over a period of 10 years, and that’s not counting the huge overheads incurred in the process such as salaries and research costs. Still, those patents have done their job. On paper, the institution is considered a remarkable success story of innovation. In practice, however, it is hard to see how CSIR’s senseless patent quest can be considered anything other than a massive waste of public money.

The traditional knowledge trap

If there is one thing the National IPR Policy is more concerned with than awareness, it is traditional knowledge. (Our traditions are invoked 22 times through the document.) This is a chestnut so old, it has become positively stale. The charge that IP is a neocolonial conspiracy to appropriate and pirate our ancient knowledge is one that has found echoes in India at least since the 1980s. This report appears to turn that charge on its head by now concluding that the heart of domestic innovation lies in the remaking of our traditional knowledge as IP.

This change in perspective is not grounded in any analysis of existing efforts to protect indigenous knowledge. Our Geographical Indications law has been in force for 15 years, and government initiatives to increase registrations have been reasonably successful. The Biological Diversity Act is of similar vintage, but has only been enforced with seriousness in the present decade. Have these laws resulted in substantial benefits to any community which originated a form of traditional knowledge? Has legal protection spurred the regeneration of traditional knowledge? In the absence of concrete evidence that either objective has been satisfied, it is unclear why India should carve out larger property protections in this domain. Organisations like the World Intellectual Property Organisation (WIPO) would probably be happy if we did; they want us to believe there is a pot of gold at the end of that rainbow. But there is no gold, so we will not find it. What rich countries know is that our quest to protect traditional knowledge will ensure that we remain enthralled by the IP myth, thereby allowing their own IP to lucratively flourish in poor countries around the world.

The National IPR Policy makes it clear that we will not roll back any aspects of Indian patent law, which was amended in 2005 to comply with World Trade Organisation (WTO) rules. For this strong statement, the authors of the policy must be congratulated — it is perfectly correct to assert that our laws are compliant with the WTO, however much they might rankle the U.S., the EU, and other rich countries. Unfortunately, almost every other assertion in the policy contradicts the principles espoused in our patent law. The Indian patent law extols a philosophy of minimalism — less is more. With the new IPR policy, this minimalism is now inexplicably shrouded in a cloak of maximalism, the lesson apparently having been revised to mean more is more.

The most significant achievement of the 2005 amendment to our patent law was a high bar for innovation, thereby restoring sanity and balance to a system run amok: it was designed to reward real innovation, rather than the tweaks pharmaceutical companies the world over use to justify extending their monopolies — and their high prices. The Indian system of supporting both innovation and access to medicines was an innovation in law-making, and after a long, hard, slog, culminating in a Supreme Court ruling in April 2013 that ratified our law, the world sat up and took notice. Later that year, South Africa announced its decision to amend the country’s patent law along the lines of Indian law, and Brazil launched a bill supported by the then ruling Partido dos Trabalhadores, with exactly the same intent. To follow through, what these countries require is the unwavering confidence of the Indian government in its own patent law. Unfortunately, you would have to read between the lines to find that confidence in this policy. This is a shame, for we could have used our patent law to take a bold, strong leadership position across the world.

India’s first IPR policy was an opportunity to embrace the spirit of India’s innovative patent law, as well as the collective systems of knowledge we have fostered through millennia, which, taken together, emphasise innovation, access and openness. India’s National IPR Policy fails to grasp this opportunity. Instead, it trots out the worn western fairy tale that more IP means innovation, encourages the pointless privatisation of indigenous knowledge, and egregiously fails innovation by doing nothing to make public research accessible to the people who pay for it.