Upcoming Challenges in IPR and the Way Forward

Introduction

The modern global society is propelled forward by the power of ideas and the wavelength of those ideas. All of its aspects and especially, the economy, is heavily dependent on the nature and uniqueness of ideas. Such ideas had a far-reaching propensity to drive a dynamic society forward and that driving force resulted in the prominence of Intellectual Property Rights (IPR) .and the laws relating to it.

IPR laws help an organisation or an individual to preserve their ideas with the help of tools such as patents, copyrights and trademarks. This has proven to be the key to success in business and science, globally, over the years.

India signed the TRIPs agreement (Trade Related Aspect of Intellectual Property Rights) after becoming a member of the World Intellectual Property Organisation (WIPO) in the year 1995. All the countries that were signatories had to restructure the laws guiding Intellectual Property in their nation to the tune of the terms mentioned in the TRIPs agreement. They were provided with a window of 10 years in order to bring this about and comply with the set standards.

Even though India complied with the rules as per the TRIPs agreementhas adopted the TRIPS model, there are a lot more challenges that the nation still faces with regards to Intellectual Property Rights. These challenges that are about to be discussed, ought to be dealt with efficiently in order to maximise the benefits that they have on offer. The importance of IPR laws in streamlining the economy and structuring growth is truly commendable. However, there have been a few questions that have been left unanswered and this article hopes to grapple with those questions which have often left the users of IPR laws, baffled.

Questions to Grapple with

Intellectual Property Rights often help innovators and inventors to benefit financially fromoff their ideas. They are given credit for the power of ideas they generate. When the original creators lose out on this right to their ideas, there is a hindrance in innovation caused due to the lack of motivation which was otherwise provided by patents, copyrights and trademarks. 

But there is a flipside to it. It can sometimes be hazardous to innovation as well. And the best example of this is that of the debate going on regarding patents on drugs and medicines being allowed to specific pharmaceutical companies. When an exclusive permission is given to one pharmaceutical company to manufacture a drug, there might be an imbalance in terms of demand and supply. This might lead to increase in costs and eventually render the drug, inaccessible to a whole range of people. The point which is to be driven forward is that the patenting of too many ideas might lead us to a standstill with regards to innovation and creativity. Small scale businesses might lack the financial funding to acquire the patent rights to align and structure their work on previous inventions. This will in turn lead to people being deprived of developments in multiple fields and areas.

It has been contested that IPR laws are too broad and do not have a strict definition. This is because they mainly deal with ideas and hence turns out to be vague on a lot of occasions. Ever since the advent of the concept of Intellectual Property Rights, there has been a gradual shift from IPR laws protecting intellectual interests of innovators to that of protecting the economic interests of an influential few.

Presenting The Indian Context

All the signatories to the TRIPs agreement were required to realign their patent regime to that of “Product Patent” from that of “Process Patent”. What are these and are they different?

AThe primary factor that distinguished the both was thatProduct Patent regime is one which protectesd the products while the other,Process Patent regime only protects processes. This proved to be an issue that bothered the pharmaceutical and the food industry which involved both products and processes. There has been a constant struggle over the years to strike a balance between providing food security and granting Intellectual Property Rights in a country like India, where the main source of livelihood for the majority is farming.

The economic model that is followed in our country has been that of a balanced structure of capitalism and socialism. It was aimed mainly at protecting the interest of those people who struggled and toiled even for the acquisition of basic human necessities including food and medicines. Government was also given the right to keep a check on the unfair prices that might be charged on drugs. In order to certainly assure that this right was protected, the Government could intervene and make sure that the prices charged by the companies are not uncertain and unfair.

In the case of Novartis AG V Union of India, \the interpretation of Section 3(d) was questioned and challenged. The Invention Test and Therapeutic Efficacy test were introduced and applied in this fact matrix in order to determine the rights available to multinational companies to evergreen their patents by making minor amends in their already existing patents.

Section 3(d) prevented the MNCs from indulging in the evergreening of patents and this was quite often, condemned. With the introduction of the provision of Compulsory Licensing in the laws relating to IPR in India, the Government of India is given the autonomous power to compel or give permission to any company to mass produce a class of drug for the benefit of the masses. This is done without taking into consideration who has got the patent and who has not.

This provision was condemned globally and there were persistent requests and efforts made to abrogate Compulsory Licensing. This was found to be in contrast to the patent laws which were to preserve and credit the power of ideas which led up to innovations.

The relation that IPR shares with indigenous knowledge and community property rights is crucial in a country like India. From pre-historic times, India as a country has always boasted of a rich tradition which quantified a lot of principles of Ayurveda and other such invaluable findings in the field of medicine. And these are features which the pharmaceutical companies are waiting to pounce on. The Government of India has a responsibility to protect such indigenous intellectual property by not allowing the Multinational Companies to acquire patents on community property and culture. The creation and the introduction of the Traditional Knowledge Digital Library (TKDL) was in response to the pervasive nature of the intent of the MNCs to acquire or stamp a mark of possession over the tradition, culture and indigenous properties of an area.

Inadequacy of the regulations, lack of awareness and the absence of an effective control or check on the proceedings are issues that continue to plague the regime of IPR in India. Promotion of patent literacy has been considered to be a crucial factor in fostering an environment regulated by Intellectual Property Rights but will still be conducive to innovation and development.

Artificial Intelligence and its Tryst with Intellectual Property Rights

Artificial Intelligence (AI) has been considered to be a revolution in the field of technological developments. It is also predicted that AI will grow to have an unparalleled importance in all spheres of life and could not be done away with at any cost. The role it will play in the management of IP systems around the globe and the implications it might pose on Intellectual Property law cannot be disregarded. The socio-economic and technological consequences that Artificial Intelligence might bring to the table reinforces its position or stature as the greatest technological find of the century that we live in, right now.

“AI is a new digital frontier that will have a profound impact on the world”, said WIPO Director General, Francis Gurry, at the launch of the instalment of the new “Technology Trends” research series of the World Intellectual Property Rights Organisation (WIPO).

Intellectual Property Rights and the tools relating to it including patents, copyrights and trademarks were developed over the years for a purpose and for a reason. It was done in order to incentivise the creation of new knowledge and to build a society driven by the power of ideas. This ensured the presence of fair and free competition with a constant thrive for one party to be better than the other. The regulatory role that IP laws played made sure that this competition benefitted the masses. But with the introduction and the advent of Artificial Intelligence (AI), the entire purpose of the legislation with regarding to IP laws are questioned and their relevance goes for a toss.

In the case of AI driven technologies and ideas and other streams of thought, the basic guiding force is a constant string of binaries, data, programmed information and multiple algorithms. These systems which drive AI forward areis dynamic and areis in the process of constant change, thereby providing no opportunity for anyone to claim rights over those inventions.

Over the years, it has been recommended to make use of AI to manage and administer IP systems all over the globe for a plethora of reasons. Due to the sheer volume of patent applications inflow every year, it was found to be difficult even for the combined effort of multiple human resources to manage the functioning of Intellectual Property Rights. This was the point where flagbearers of Intellectual Property Rights turned to Artificial Intelligence as a probable prospect. Through this, a better quality and reduction of administration costs were looked at. In furtherance of this idea, WIPO led the way in developing an image search tool powered by AI and based in a WIPO Global Brand Database which is predicted to improve efficacy of work in relation to patent application.

GMOs, Transgenic Plants Intertwined with Intellectual Property Rights

India’s IP policy has been regarded to be very strict and was reflected in the Novartis case. The controversy surrounding that case triggered questions regarding India’s stand on allowing patents and other elements of IPR to be granted to different biological product and processes.  

Allowing patent rights over agricultural produce would adversely affect the economy of a country like India where the majority of its population depends on farming for their livelihood. Section 3(j) of the Indian Patent’s Act, 1970 determines the biological products and processes over which patent rights can be exercised. It mentions that plants and animals apart from microorganisms are not patentable and microorganisms are patentable with few caps and limitations. Section 3(b) of the Act prevents patent rights being used as a tool for commercial exploitation and contrary to public policy or morality.

It was determined that Genetically Modified Organisms are not products of any invention and were deemed to be contrary to public policy and hazardous to health as well. The adverse effect it has on the health of people were also taken into consideration.

Novartis case in India was primarily regarding the Right to Health. In the US, Monsanto, a multinational company sued a group of farmers for infringement of patent rights. It was established that none of that groups that were anti-GMO

 had the right or the authority to stop Monsanto from suing the farmers. These decisions were later contested in the US Supreme Court. The farmers argued that the patent granted to Monsanto was not in sync with the purpose or the objective of IPR law and spoke along the lines of it having a negative and corroding effect on health and economy. The Monsanto episode was with regards to the Right to Food and Right to Livelihood. However, in Canada, in the case of Monsanto v Schmeiser, the Supreme Court upheld the patent rights of Monsanto against the farmers. Here the point of contention was with regards to the farmers’ growing of a particular seed variety to whose genes, the company had patent rights.

In India, Indian Patent law did not come into being to be used as an instrument to exploit the interests of the general public but to benefit them by protecting and giving credit for their ideas. Situations in particular to that of the Genetically Modified Brinjal and its status in India have multiple implications.

NOW IIt hadis required to be proven that the GMOs had no adverse effect on health and   before granting any one entity the exclusive right for the sale and production of that GMO. The utility that GMO has to offer has been weighed with that of the danger it poses to the society and calculated decisions are being taken with Japan and a lot of European Countries placing severe restrictions in connection with Genetically Modified Organisms. There have also been a lot of suggestions which advocate for methods such as ‘organic farming’ in order to compensate for the utilities that GMOs have on offer.

It is at this point that we find it important to analyse the impact of Intellectual Property Rights and the laws relating to it, on developing nations, such as ours. Agriculture is no more what it once used to be. it has been commercialised as opposed to being the most common occupation in the nation. And the laws relating to Intellectual Property Rights have been aligned along the commercial interests of a privileged few rather than to the common man or the general public. There is a growing concern regarding Llack of quality public infrastructure in order to boost means of ensuring thatfor implementation of IPR laws. benefit the masses is a growing concern and needs to be addressed quite fast. There is a need for incentivising the findings under Genetically Modified Crops and Organisms in order to direct it towards feeding the poor.

Virtual Reality and its Legal Issues

This century has seen the emergence of augmented reality and a notable rise and developments in the field of Virtual Reality. As a growing field which has drawn a lot of attention, it is also been home to a lot of legal issues being fostered. In case the creator of content does not have the required rights to include something in their material, it is important that permission is sought from the actual owner. In any case otherwise, there would be patent infringement that might be caused.

A question which has been plaguing users of virtual reality and people who take keen interest in IPR law is – whether the laws relating to Intellectual Property Law in the real world would extend to the world of augmented or virtual reality?

Virtual Reality is not granted immunity from property offences. In the case of Li Hongchen v Beijing Arctic Ice Technology Development Co., it was a Chinese Court held that the virtual property ought to be returned to the actual owner by the third party. And tThe reason cited for the same was to “protect a distinct property right – and to give the owner control over that property as against the entire world.” It was therefore found that virtual Intellectual Property Rights had to be protected the same way it is in the real world. It was with this intent that the Digital Millennium Copyrights Act was brought into being in the United States in 1998. This was envisioned to enable a better and efficient Digital Rights Management (DRM).

Indian Laws relating to IPR, when framed, were not broad enough to incorporate the changes needed in order to protect even IPR in a virtual world. Hence the scope to ddress abovementioned issues was minimal and was no exhaustive in this regard. The liberal nature of the legislations regarding IPR in India can only be measured based on the widening of their ambit so as to include virtual reality and its multifarious elements. There have been several questions to which answers are being sought. But the most important one of them being – whether there is a need to include new provisions to exclusively deal with IPR in the virtual world or would it be enough to expand the scope of the already existing provisions and legislations?

Conclusion

Intellectual Property Rights and the laws relating to it are ever-evolving in nature. The aspects it can cover and the fields it has an impact on are evolving and dynamic as well. It seeps into a lot of spheres of life and therefore, leads to a lot of complexities as well. As it is a dynamic branch of law, there has been a lot of questions that have been left unanswered and those are the challenges that plague the IPR regime in a country like India.

With the advent of Artificial Intelligence and GMOs, Virtual Reality and all other finds of the 21st century, there has been a need to protect the power of the ideas and to give credit where it’s been due. There is surely a need to incentivise innovations and also to foster an environment conducive to development and growth. Even though that has been duly acknowledged, one cannot absolutely neglect the noble aspect of harnessing the power of such intellectual properties for the greater good of the public. One cannot deny the commercial implications that IPR laws bring to the table. It has often been observed that most of the laws relating to Intellectual Property have been so aligned in order to benefit the multinational companies that reap huge amounts of profits. And in its course, the benefits of IPR are never really directed to the cause of masses.

This is observed in the field of agriculture and in the field of medicines. Agriculture has now been commercialised with the introduction of Genetically Modified Organisms (GMOs) limiting its access only to a privileged few. The exclusive nature of GMOs, brought about by the patent rights granted to them, prevent the common man from being a beneficiary of such innovations. There are similar parallels that are scene in the field of medicine as well with pharmaceutical companies claiming exclusive right to manufacture or produce a drug causing considerable issues in terms of its accessibility. These issues just form the tip of the iceberg of problems that the Government tries to grapple with in relation to Intellectual Property Rights.

The issue of piracy proves to be a constant headache to the entertainment industry and it often deprives the Government of huge amounts of revenue thereby, lending a significant blow to the economy. This was suggested to be resolved by imposing criminal sanctions, wherever necessary. These were to be done in addition to the civil remedies already available. Emphasis was to be given on effective implementation of the laws and the criminal remedies which were laid down from Section 63 to Section 70 of the Indian Copyright Act, 1957. Through these sanctions and remedies available, facilitated by the expansion in the scope of the concerned legislations, it is important that a regulatory regime of IPR is created which is at the same time, conducive for development of ideas and innovations.

-Philip Ashok Alex


Posted On: 06 Sep 2019 Home / Legal / Upcoming Challenges in IPR and the Way Forward