BY Arvind Ranganathan
Intellectual property rights is after all the creation of the human brain and ingrained in creative works like books, music, designs, inventions of products and processes, computer software, distinctive designs or marks and the likes. There had been attempts for integration of IPRs in instruments like the Paris and Berne Conventions. But it did not come together before the eight-year-long Uruguay round of multilateral trade negotiations, which culminated in the year 1994 in the signing of the agreement on trade related property rights (TRIPs). Under the umbrella of this agreement, all the 134 and more member countries of the World Trade Organization (WTO) are required to harmonize their IPR laws with TRIPs. Countries which had variances to IPRs have been made to follow a unified global approach, requiring them to do things very differently from the way they were used to, and this is particularly true about a large number of developing countries.
Under the terms of the WTO, India is required to implement the WTO-standard IPR protection laws by 2005. As was the case with China, India also showed signs of resistance to quick enactment of intellectual property right (IPR) protection laws as demanded by the developed countries, particularly the US. China could get away on grounds that it is not a member of the World Trade Organization (WTO), but India was required to comply.
India strengthened its copyright law in May, 1994, placing it on par with international practice. The new law, which entered into force in May, 1995, fully reflects the provisions of the Berne Convention on copyrights, to which India is a party. Based on its improved copyright protection, India’s designation as a “priority foreign country” under the United States’ Special 301 list was revoked and India was placed on the “priority watch list”.
Trademark protection is considered good by the US authorities, and could be raised to international standards with the passage of a new trademark bill that codifies existing court decisions on the use and protection of foreign trademarks, including service marks. Enforcement of trademark owner rights has been weak in the past, but is steadily improving as the courts and police respond to concerns about the high cost of piracy to Indian rights’ holders.
India’s patent protection is weak and has especially adverse effects on pharmaceutical and chemical firms. Estimated losses to the US pharma industry due to piracy are $450 million, but Indian authorities have a different point of view. India’s patent act prohibits product patents for any invention intended for use or capable of being used as a food, medicine, or drug or relating to substances prepared or produced by chemical processes. Processes for making drugs are patentable, but the patent term is limited to the shorter of five years from the grant of patent or seven years from the filing date of the patent application. Product patents in other areas are granted for 14 years from the date of filing. However, as a signatory to the Uruguay Round of GATT, including its provisions on Trade Related Intellectual Property Rights (TRIPS), India must introduce a comprehensive system of product patents no later than 2005.