K.M. Gopakumar
[Cross posted from TWN, Link] Several civil society organisations and individuals have expressed earnest concerns over the India-United States Joint Working Group on Intellectual Property.
A collective sign-on letter from more than 50 organisations, networks and individuals to India’s Prime Minister Shri Narendra Modi sets out the concerns over the decision to establish the Working Group that was announced in a US-India Joint Statement dated 30 September 2014. The letter urges the Prime Minister to approach the intellectual property (IP) issue with a “holistic perspective rather the narrow confines of trade and economic policy”.
(See list of signatories below.)
The letter that was publicized in a press release on 22 October 2014 requests the Prime Minister:
- To make public the specific purpose of the Joint Working Group on IP;
- To maintain the Government of India’s stand of non-cooperation with any unilateral measures by the US Government on this front;
- To refrain from going ahead with the proposed bilateral annual forum on IP, particularly in the absence of a domestic process on IP issues;
- To pursue an inclusive public consultation approach for the formulation of India’s IP Policy, a process which is underway within the Department of Industrial Policy and Promotion (DIPP) under the Ministry of Commerce and Industry;
- To maintain the flexibilities in the various domestic IP statutes and not to amend any of the IP statutes in order to reduce the scope of flexibilities;
- To reach out to like-minded countries to not only build a coalition to resist such pressures from the US and other developed countries, but also to be able to continue to supply cheaper generic medicines to low and middle income countries;
- To support local innovations that offer more sustainable options for the future – such as climate-adaptive seeds and the Indian systems of medicines.
The Working Group was established during the visit of India’s Prime Minister to the US in the last week of September. The Joint Statement stated: “Agreeing on the need to foster innovation in a manner that promotes economic growth and job creation the leaders committed to establish an annual high-level Intellectual Property Working Group with appropriate decision-making and technical-level meetings as part of the Trade Policy Forum”.
The joint statement creates three main concerns. First, the wording attempts to establish direct link between IP and economic growth and innovation. According to critiques including academic publications there is no direct link between IP protection and innovation. Second, the existing India-US Trade Policy Forum has the mandate to discuss IP. Therefore the creation of this Working Group is viewed as accommodating US pressure on changing India’s IP law. The pharmaceutical transnational corporations (TNCs) have been lobbying against the Indian patent law since the introduction of a product patent regime in India in 2005. However, pharmaceutical TNCs intensified their effort after the Supreme Court of India rejected the patent claim of Novartis’ imatinib myslate, a cancer medicine. This decision also gave the judicial stamp on Section 3 (d) of the Patents Act, which curb the patenting of known substances.
[The US industry lobby consisting of pharmaceutical and informational technological companies formed a coalition to lobby against India’s patent law, which incorporates most of the flexibilities in the WTO TRIPS Agreement. These flexibilities do not allow the patenting of known substances (referred to as “ever greening of patents”), and check abuse of patent monopoly through compulsory license and government use orders. Indian patent law also provides for pre-grant opposition of a patent, which allows any person to challenge a patent application prior to the grant of the patent. It also allows interested parties to challenge a patent after its grant.
Many countries such as Brazil, South Africa, Ecuador etc. have undertaken patent law reform initiatives in order to incorporate some of the provisions in the Indian Patent Act especially the sections dealing with prevention of patenting of known substances and pre-grant opposition.]
The third concern is related to the words “appropriate decision-making and technical-level meetings”. This raises the concern on whether the decision-making would result in changes in India’s IP regime.
Further, there is no clarity on the terms of reference of the Working Group.
The decision to set up the Working Group attracted widespread media and political criticism. The Department of Industrial Policy and Promotion (DIPP), the nodal department for IP protection and enforcement issued a statement to clarify the Government’s position. The DIPP statement stated: “USA agreeing to discuss IPR issues through the bilateral mechanism of the Trade Policy forum is in fact a re-affirmation of India’s stand that issues need bilateral discussion and not unilateral action. The statement on the IPR issue will only strengthen the bilateral institutional mechanism”.
The DIPP statement also tried to allay fears with regard to the reduction of public interest flexibilities in the Patents Act by stating: “India has consistently pointed out that the IPR legal regime in India is fully TRIPS compliant and that any issues to be discussed have to be discussed in bilateral forums like the Trade Policy Forum. India has refused to be subjected to unilateral action proposed by US under the Special 301 report, an annual report on IPR under US Trade Act”.
The signatories of the letter call upon the Prime Minister to view IP with a holistic perspective rather than approaching IP in the narrow confines of trade and economic policy. The letter also requests the Prime Minister to take a personal interest in this important matter.
The letter seeks clarification from the Government on the specific purposes of the Working Group, and asks that the purposes of the Working Group be made public.
Further, the letter alerts the Government that, “the grant of decision-making powers to the new joint Working Group could be at the risk of ingression of sovereign policy space. Bilateral arrangements should not have the power to supersede domestic democratic decision-making processes mandated by the Constitution of India”.
It warns the Government that “any bilateral negotiation on IP between India and the US would definitely witness demands on India to provide for higher standards of IP protection that are not required of us by the WTO’s IP agreement – TRIPS”.
The letter appreciated the Government’s position of non-cooperation against the US unilateral pressure tactics like the US Trade Representative (USTR) priority watch and out of cycle review, and urges the Government to relentlessly maintain such a stand. It expresses confidence that “the Government of India will continue to withstand external pressures on this front”.
The letter also conveys concern to the Prime Minister over the recently announced national IP policy formulation initiative and states: “While framing a national IP Policy afresh, it needs to be kept in mind that our current IP laws are already compliant with existing international laws and allied obligations. We strongly urge you not to amend India’s IP statutes to reduce the flexibilities currently available to safeguard the public interest such as affordable medical products, right to food and the access to knowledge”.
The letter clearly states that the “higher standards of IP protection will not necessarily translate into ‘economic growth and job creation’ in a country such as India. IP-related policy cannot be dealt with as a mere trade issue”.
Further, it warns the Government that an inappropriate domestic IP regime can adversely impact provision of basic human needs, such as health, agriculture, biodiversity, education as well as public policy goals with respect to scientific endeavours, technology development and local innovations that offer more sustainable options for the future – such as climate-adaptive seeds and Indian Systems of Medicine.
Meanwhile, adding room for speculation, the DIPP in a press release dated 24October announced a Six-Member IP Think Tank with the following Terms of Reference:
i To draft National Intellectual Property Rights Policy.
- To identify areas in the IPRs where study needs to be conducted and to furnish recommendations in this regard to the Ministry.
iii. To provide views on the possible implications of demands placed by the negotiating partners.
- To keep the Government regularly informed about the developments taking place in IPR cases which have an impact upon India’s IPR Policy.
- To advise the Govt on best practices to be followed in Trademark Offices, Patent Offices and other Government Offices dealing with IPR in order to create an efficient and transparent system of functioning in the said offices.
- To prepare periodic reports on best practice followed in foreign countries.
vii. To highlight anomalies in the present IPR legislations and to advice possible solutions to the Ministry.
viii. To give suggestions on the steps that may be taken for improving infrastructure in IP offices and Tribunals.
- To examine the current issues raised by industry associations and those that may have appeared in media and to give suggestions to the Ministry on such issues.
Meanwhile, the USTR has initiated an out of cycle review of the level of IP protection in India will a call for submissions from the public with the deadline of 31 October.
[The Special 301 Report 2014 did not categorise India as a priority foreign country that could have led to possible trade measures against India. Instead it announced that it would carry out an out of cycle review of India in the fall of 2014. The other countries selected for out of cycle review are: Kuwait, Paraguay and Spain. The USTR in a press release dated 14October started inviting “submissions from the public concerning information, views, acts, policies, or practices relevant to evaluating the Government of India’s engagement on IPR issues of concern, in particular those identified in the 2014 Special 301 Report”.]
The US International Trade Commission (USITC) Investigation Report is also expected in the coming months. The deadline for the USITC to submit its report to the Committee on Ways and Means of the US House of Representatives is 15December 2014. Meanwhile, the Committee of the Ways and Means in another letter to the USITC dated 24 September 2014 has asked for a “second investigation concerning India’s industrial policies that discriminate against US trade and investment since the first ITC investigation”. Thus the second investigation is an update of the first investigation. The formation of the new government in India prompted the second investigation. The Committee expects that the second investigation would allow the USITC to meet with the relevant government officials in the new government and to seek additional information from the US firms.
The whole situation is rightly termed by an Indian journalist as “IP on the Boil”.+
Signatories to the letter:
- Shalini Bhutani, Legal Researcher & Policy Analyst
2. B L Das, Former Ambassador to GATT
3. Anand Grover, Director, Lawyers Collective
4. K M Gopakumar, Third World Network
5. Dinesh Abrol, National Working Group on Patent Laws
6. Prof. Jayati Ghosh, Jawaharlal Nehru University
7. Kalyani Menon-Sen, Feminist Activist & Coordinator, Campaign for Affordable Trastuzumab
8. S. Srinivasan, Low Cost Standard Therapeutics (LOCOST), Gujarat
9. Amit Sengupta, Jan Swasthya Abhiyan
10. Mira Shiva, Initiative for Health & Equity in Society and All India Drug Action Network
11. Biswajit Dhar, Professor CESP/SSS, Jawaharlal Nehru University
12. Sagari R Ramdas, Food Sovereignty Alliance – India
13. K. Pandu Dora, Adivasi Aikya Vedika
14. Kavitha Kuruganti, Alliance for Sustainable & Holistic Agriculture (ASHA)
15. Vikas Ahuja, President, The Delhi Network of Positive People
16. Loon Gangte, Regional Coordinator, ITPC-South Asia
17. Aruna Rodrigues, Sunray Harvesters
18. Suman Sahai, Gene Campaign
19. Wilfred Dcosta, Indian Social Action Forum (INSAF)
20. Surajit Mazumdar, Professor CESP/SSS, Jawaharlal Nehru University
21. Kanchi Kohli, Campaign for Conservation and Community Control over Biodiversity & Kalpavriksh
22. Kapil Shah, Jatan Trust, Gujarat & Organic Farming Association of India (OFAI)
23. S. Ashalatha on behalf of Rythu Swarajya Vedika, Telangana and Andhra Pradesh
24. Kavita Panjabi, Professor, Jadavpur University
25. Umendra Dutt, Kheti Virasat Mission, Punjab
26. Usha S., Thanal, Kerala
27. Aruna Burte, Feminist Researcher and cancer survivor
28. Nivedita Menon, Feminist Activist and Professor, Jawaharlal Nehru University
29. Gabriele Dietrich, National Alliance of People’s Movements
30. Kannamma Raman, Associate Professor, Department of Civics and Politics, University of Mumbai
31. Jacob Nellithanam, Centre for indigenous Farming Systems, Chhattisgarh & Madhya Pradesh
32. Rajesh Krishnan, Coalition for a GM Free India
33. Rachna Arora from Public Awareness on GM Food (PAGMF)
34. Ashish Gupta, IFOAM Asia
35. Claude Alvares, Goa Foundation
36. M R Baiju, Democratic Alliance for Knowledge Freedom (DAKF), Kerala
37. Madhu Sarin, Forest rights researcher and policy analyst
38. P V Satheesh, Director, Deccan Development Society
39. C N Suresh Kumar, Co-Convenor, Millet Network of India (MINI)
40. C Jayasri, Coordinator, Southern Action on Genetic Engineering (SAGE)
41. A Giridhar Babu, Alliance for Food Sovereignty in South Asia (AFSSA)
42. Narsamma Masanagari, Media Coordinator, Community Media Trust
43. Bharat Mansata, Earthcare Books
44. T C James, former Director (IPRs), DIPP, Government of India
45. D. Narasimha Reddy, ICSSR National Fellow, CSD, Hyderabad
46. Mishi Choudhary, Executive Director, Software Freedom Law Centre (SFLC.IN)
47. K Ashok Rao, President, National Confederation of Officers Associations (NCOA)
48. B Ekbal, Kerala Sastra Sahithya Parishad
49. Gautam Mody, General Secretary New Trade Union Initiative
50. Sunil Abraham, Centre for Internet and Society (CIS)
51. Veena Johari, Lawyer and Legal Researcher
52. Subbiah Arunachalam, Science writer
53. Vandana Shiva, Director Navdanya Trust.
54. Manoj Pardeshi, General Secretary, National Coalition of People Living with HIV in India (NCPI+) and NMP+
55. Malini Aisola, Oxfam India
56. Manicandan, Forum Against FTAs
57. Afsar H. Jafri, Focus on the Global South
58. Forum against FTAs
