Sangeeta Godbole_30th January 2015

National IP policy

In the interest of humanity, can India leadefforts in reversingthe current version of the TRIPSregime?

The current version of TRIPS and TRIPS plus must not be taken as an irreversible reality. India’s National IP policy should clearly enunciate as one of its goals,international coalition building for a fair, ethical and sustainable global IP regime. It must take forward the already budding narrative that challenges the western concept of intellectual property in tandem with other developing countries.

  • Deep rooted philosophical fissures: The current global IP regime is at odds with deep rooted approaches of ancient societies,which also happen to be today’s emerging economies. Eminent commentators have clearly identified the complete disconnect between the western concept of IP and traditional cultures. Intellectual property systems around the world, fashioned by western thought, link IP rights to individual persons and seek to maximize the tradability of such rights.[1] In traditional cultures however; land, science, knowledge and art form part of an organic whole which belongs to the entire community.
  • Traditional societies have been alive and thriving for centuries together without use of any IP regime. They see no need for strict IP enforcement. Profit-making from IP is a strictly western value with which they do not identify. It has long been recognised that different legal systems are deeply implanted in the cultures from which those legal systems evolve.[2] Montesquieu argues that the laws of each nation “should be adapted in such a manner to the people for whom they are framed, that it should be a great chance if those of one nation suit another.”[3]
  • Most western commentators imply that disregard to IP laws in traditional societies like India and China is a pointer to use /misuse of IP created by some other persons. It is considered to be free-riding, taking unfair benefit of somebody else’s labour. The case of Chinese implementation of IPR has been elaborated often, with scholars slowly coming to the conclusion that deep seated Chinese philosophical and cultural values which view property as a common good are at the base of so-called IPR infringements in China.
  • The Indian tradition recognizes the role of an intellectual very differently from that of a money-making device. In the Indian tradition, celebration of innovation is not linked only to monetary quantification and immediate compensation to the inventor. In fact Indian philosophy is all about detachment from the fruits of one’s labour. IPR enforcement as it exists today, is all about the creator getting every pound of fruits of his labour, but also thwarting everybody else from creating. Thus there is a wide rift in world views of western thought and traditional thought especially on the extent and depth of monetary gains an individual must reap out of his own creation.
  • TRIPS one of the most unfair agreements: The assumption that only the western world view of intellectual property protection will bring about human good is preposterous. Even more preposterous is forcing the regime down developing countries’ throat. This tendency has been at its highest in the TRIPS Agreement. TRIPS is sometimes labeled as the most blatantly unfair feature of the international trading regime enshrined by the WTO. It is the most poignant example of developing countries’ difficulty in resisting determined efforts by the ‘Quad’ in imposing western institutions on the developing world.[4]
  • There is a large body of academic work that suggests that the current TRIPS regime has wrought and will continue to wreak large scale harm onsocieties with solid traditional knowledge. That several patents for medicinal plants used for centuries have been granted to upstart companies in rich countries is one of the indications of such harm. Studies have indicated millions of dollars of welfare losses during early TRIPS years, on account of pharmaceutical patenting for India alone[5].
  • India’s TRIPs compliant regime: Having signed the TRIPS Agreement, India and other ancient societies are committed to implement it. Even though there are deep differences in world-views, as a responsible member of the comity of nations, India has done every effort possible to put in place a TRIPS compliant IP regime. But issues that arise in its implementation, demonstrate the level of disconnect between the provisions of TRIPS and approaches of such societies.
  • India is already a beacon to the developing world in TRIPS implementation – be it the shining example of TKDL which has thwarted over 200 international patent claims based on medicinal formulations already existing in our ancient texts, judicious use of compulsory licensing for affordable medicines, use of TRIPS flexibilities, or its active participation in the CBD.
  • Economic power of emerging (but TRIPS victim) economies: There is an urgent need to synergise the developing world into a strong coalition for an ethical and sustainable global IPR regime.It is acknowledged that market or buying power is the single most important power alongwith good coalition building. It is also well documented that in international negotiations, developing countries fair better as a coalition against developed countries.[6]
  • The comparative buying/market power of developing and developed countries has undergone a sea change since 1994 when TRIPS was signed.If GDP is measured at purchasing-power parity, emerging economies overtook the developed world in 2008 and reached 54% of world GDP in 2011. They now account for over half of the global consumption of most commodities, world exports, and inflows of foreign direct investment. Emerging economies also account for 46% of world retail sales, 52% of all purchases of motor vehicles and 82% of mobile phone subscriptions. Almost a quarter of the Fortune Global 500 firms come from emerging markets; in 1995 it was only 4%[7].
  • Suggestion:India’s National IP policy should clearly enunciate as one of its goals, international coalition building for a fair, ethical and sustainable global IP regime. It must take forward the already budding[8] narrative that challenges the western concept of intellectual property in tandem with other developing countries. In the interests of humanity, it must reverse the trend of greater and greater monetization of creation, making it ever more harder to diffuse amongst large swathes of needy communities.

[1] Dr. Peter Drahos, The universality of IPR, Origins and development, pg 19.

[2] Sarah A. HINCHLIFFE. HarvardUniversity,mediating foreign norms and local imperatives intellectual property ‘law’ as between the east and the west: from imperial to ‘modern’, pg 2

[3] ibid

[4] Andrew J. Grotto, Organising for influence, Max Planck Yearbook of United Nations Law, Volume 8 (2004),pg 368,

[5] UNCTAD report, TRIPS Agreement and developing countries, 1996, Annex I

[6] Ibid, pg 370

[7] The Economist, Powershift, 4th August 2011

[8]Contribution of intellectual property to facilitating the transfer of environmentally rational technology, communication from Equadorat TRIPS council on 27th February 2013