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Technology & IPR: Where is India lagging?

This article was submitted by Dhruv Mathur from University of Petroleum & Energy Studies for National Legal Writing Competition,2016.

INTRODUCTION

Technology, today, is increasing at a faster pace, much faster than it used to be in 20th century. Well, talking about India, we may blame the British rule to be the cause of the hindrance in it. Nowadays, the present day computers, which used to be large room sized, have now been miniature to be a Smartphone, or maybe a tablet. Now, huge multi-national companies use the technology, which our ancestors could not even ponder of.  So, what we use today, the scientists must have thought it a decade ago, or even before that. The required Research & Development (R&D) must have taken a couple of decades, as it included trial and error period too. So, there was a need for some stringent laws and rules to protect the ideas or the intellectual properties of the people. Also, there was a need for an authoritative body, which could internationally govern those laws and rules all over the world. This led to the birth of Intellectual Property Rights (IPR) and its laws.

BRIEF DESCRIPTION OF IPR

IPR is a set of rules, that are binding, which protect the works, inventions, and ideas of their respective owners. They create a temporary monopolistic right to the owners of the inventions, so that the people can learn who created it. It contains a variety of rights such as patents, copyrights, trademarks, trade secrets, and many more.

Patents are for the protection of and invention, its product as well as its process. They are for a specific term of 20 years, from the date of filing of patent application.

Copyrights grants the author or creator of the original work, the absolute right for the use and distribution of his/her work. For literary, musical or any artistic work, the duration is the lifetime of the author/creator plus 60 years after the date of his/her death.

Trademarks’ laws are for the protection of trademarks of goods and services and also to prevent their fraudulent use. Its term for registration in India is 10 years, which can be renewed again for 10 years.

Trade secret refers to any practice, process, design, instrument or any compilation of data or information relating to the business, unknown to the public and which the company keeps confidential to the outside world.

Intellectual Property Rights (IPR) is a ‘hard-intellectual property’ as well as ‘soft-intellectual property’. [1]‘Hard’ intellectual property generally relates to registered intellectual property rights such as patents, registered trademarks and registered designs, while ‘soft’ intellectual property includes things like copyright, unregistered trademarks, unregistered design rights, database rights, trade secrets, confidential information and passing off.

REFORMS IN IPR: INDIA

Going back to the 20th century, India’s technological degrees and enhancements were not at all adept or up to the mark. Since its technology was not proficient, the IPR issues were also facing a starting problem. But with the commencement of 21st century, India has notifiably shown great progress in the field of IPR. This has been achieved by keeping pace with the Trade Related Intellectual Property Rights (TRIPS) agreement, and also by keeping up with the US and European Intellectual Property Right (IPR) structure. There is now a rule of knowledge, technology, and intellect, in India. Therefore, issues of protection and exploitation of intellectual property have become critically important.

There were, at an earlier stage, some problems and issues related to its implementation, policies, acts/rules, and support from financial as well as government bodies. The inventors and the companies were also not interested in R&D, as they both were intimidated with the risk of infringement, due to lack of IPR. This led to the intellectual as well as economic loss.

Indian Patent Act, 1970 led the path for the new patent laws. Later, many amendments were made in accordance with TRIPS, in 2005. Before signing to Madrid Protocol, India became a member of the Paris Convention, Patent Cooperation Treaty, and Budapest Treaty.

CHALLENGES IN IPR: INDIA

IPR has got its roots in many sectors, of Indian market. Be it technology, or pharmaceuticals, IPR is a key role player. But still, India face challenges at both the local as well as at the global level. [2]Talking of the local level, IPR lacks in the remote areas, where maximum of the population is unaware of it. Such areas are a potent source of inventions. These areas need certain educational and heuristic camps, which can enlighten the people of the uses and benefits of IPR.

While comparing the statute of the other member countries (of TRIPS agreement) with India, our country has followed and borrowed many of the fundamentals that the other countries have, related to IPR. The technological advancements of the other countries are not in sync with India. This, in my opinion, is heading in a wrong direction. The laws should be framed according to the technological and social status of our country, and not of the other country. The stringency of laws and statutes can be a hindrance in IPR, if we do not keep sync between our technological and social advancements with the statutes.

[3]In the annual IP index released by the United States Chamber of Commerce (USCC), carried out by the [4]Global Intellectual Property Centre (GIPC), a very stern picture has been painted by India, as it has been ranked 37th out of 38 countries, for its intellectual property rights environment. The key factors, like rights and limitations of the patent, copyright and trademark regimes, trade secrets, enforcement and ratification of international treaties, were taken into consideration. The main reason figured out was that patent protection in India remains outside of international best practices. Also, execution and implementation of different mechanisms to tackle online piracy, is lacking in Indian law system. This would not have been a problem if the government had not suspended implementation of Final Guidelines for Computer Related Inventions (CRI). India’s frailty lied in the use of compulsory licensing (CL) for commercial and non-emergency situations, and the extensive use of CL being considered by the Indian government. CL relates to the government allowing entities to manufacture, use, sell or import a patented invention without the permission of the patent-owner. Also, poor application and implementation of civil remedies and criminal penalties added to its weakness.

India’s rank could have been better, if the abovementioned points had been taken care of.

To conclude, it can be said that India’s laws and rules, related to IPR, has not been fully made according to the position and development status of the country. The laws should be sync with the technological and social progress of our country, and not on the basis of any other country. Also, their enforcement and implementation should be stringent and binding. The knowledge of IPR should proliferate among each and every sector of the society, so as to enable the people to THINK, INNOVATE & INVENT.

[1] Hannah Steggles, Intellectual property, SEE MORE

[2]  Aayush Sharma and Priyanka Rastogi, India: India, IPR And Its Influence (11 September 2013) IPR & it’s Influence

[3] India near bottom of intellectual property index (February 11, 2016), India Near Bottom of IPR

[4] U.S. Chamber International IP Index, International IPR Index

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