Summary
This post examines the developments surrounding the Indian National IPR Policy, referencing the leaked draft and official statements from government authorities. The policy aims to strengthen IP enforcement and integrate IPR protection into national development strategies. Concerns have been raised regarding the potential impact on the generic pharmaceutical industry and access to affordable medicines, particularly due to stricter enforcement provisions. The policy also seeks to avoid adopting TRIPS plus requirements in trade agreements. The final version is pending cabinet approval, and its actual scope and effectiveness remain to be seen.
Background
On the 13th October, 2015, the blog Don’t Trade Our Lives Away published what it described as the final version of India’s first National IPR Policy. Mr. Amitabh Kant, Secretary of the Department of Industrial Policy and Promotion (DIPP), stated — as reported by LiveMint — that the leaked document was only a policy document submitted by the IP Think Tank as an input to the actual policy and was not the finalised version. Mr. Kant indicated that the policy would be in place within 30 to 45 days and described it as set to be “one of the finest policies in the world”.
Ms. Nirmala Sitharaman, the Minister for Commerce and Industry, confirmed on 15th October, 2015 that the final policy would shortly be placed before the Cabinet for approval and that the leaked document was a draft rather than the final policy.
Key Objectives of the Draft Policy
The draft policy carries the motto “Creative India, Innovative India” and places emphasis on stricter enforcement of intellectual property laws. It proceeds from the position that intellectual property rights must form an integral part of the country’s overall development policy. However, many commentators have characterised the policy’s primary purpose as a response to sustained pressure from the United States government and international pharmaceutical industry interests.
Concerns Regarding Generic Industries and TRIPS Flexibilities
A significant criticism of the draft relates to its potential impact on the generic pharmaceutical industry. The emphasis on stricter IP enforcement would make it easier for large pharmaceutical companies to obtain injunctions, thereby affecting the generic sector and threatening the affordability of health products. Critics contend that this approach would undermine key flexibilities available under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Countervailing Provisions
In contrast to the above, the draft policy’s executive summary states that the policy aims to “guide and enable all creators and inventors to realise their potential for generating, protecting and utilising intellectual property which would contribute to wealth creation, employment opportunities and business development.” The draft also expresses an intention to avoid TRIPS-plus provisions, which are characterised as attempts by certain developed nations to use IP enforcement clauses in bilateral trade agreements with India to their own advantage.
Outlook
The nature and scope of the final policy remain to be seen. Whether the government will deliver on all the commitments set out in the draft and affirmed by the DIPP Secretary is a question that can only be answered once the final policy is published and implemented.
Disclaimer
This article is for general information and does not constitute legal advice. Readers should consult a qualified attorney before acting on any matter discussed here.