As some of our readers may have noted, a Parliamentary Standing Committee Report, titled ‘Review of the Intellectual Property Rights Regime in India’ was released on July 23, 2021. Though the report gives some word space to ‘public interest’ and similar concepts, the overall approach seems to be a very pro-industry one, with academia and civil society stakeholders not even being consulted, even though corporate trade groups’ and law firms’ views were heard (see para 2, introduction). The 153 page report has several areas of concern that will be touched upon in various blogposts over the next few days. To start with, we’re happy to bring to you a post by Dr. Arul George Scaria outlining some of the macro and structural issues with the report. Arul is an Associate Professor at the National Law University, Delhi, and has written many posts on the blog earlier which can be viewed here.
A Parliamentary Standing Committee Report that Challenges the Fine Balances Within the IP System
Dr. Arul George Scaria
The report of the Department Related Parliamentary Standing Committee on Commerce titled ‘Review of the Intellectual Property Rights Regime in India’, released on July 23, 2021, is a disappointing document at multiple levels. Many of the specific recommendations in the report raise serious concerns from a public interest perspective. The long list of problematic recommendations includes reviewing the bars on patenting of algorithms, mathematical methods, discoveries, plants, and traditional knowledge; endorsement of patent prosecution highways; recommendation on re-establishment of Intellectual Property Appellate Board (IPAB); and narrowing the scope of important exceptions provided under copyright law to facilitate educational uses of copyrighted works. While each of the recommendations in the report deserves independent critical reviews, this post is only intended to highlight three inter-related fundamental flaws in the report from a methodological perspective. While some may argue that these methodological issues are of interest only for the academic community and that some of these issues may have existed in many other standing committee reports too, it is hoped that this note will persuade the members of the committee to re-examine the current version of the report. It is also hoped that the committee will initiate focused studies on specific issues of contemporary relevance.
What to study?
One of the basic steps any policy maker needs to take while engaging in the review of any legislation or policy is to create focused questions of enquiry. These questions are to be framed based on extensive literature reviews, which could include concerns raised by diverse stakeholders. Lack of extensive literature reviews and focused research questions can lead to ambiguous and biased research as well as conclusions. The most fundamental limitation of the current standing committee report is also the failure to understand this basic principle in research. As a committee whose recommendations can influence legal and policy making at multiple levels, including enactment of new laws or changes in law, the committee should have evolved a set of focused questions through extensive literature reviews, instead of making a superficial review of all the IP laws within the country.
For example, the whole report is based on one premise – stronger enforcement of IPRs would lead to better economic and social development in the country. As many studies have shown, such a faith-based approach to IP protection is far from empirical realities. Relevance of intellectual property rights can vary with industry and the relevance also depends on the stage of economic and technological development in a country. Most of the countries that boast themselves today as champions of IP enforcement reached their current stage of technological advancement not because of strong IP protection, but because of weak IP laws and weak enforcement that enabled them to learn and use knowledge without restrictions. USA and China are just two examples in this regard. This is not to say that IP protection is completely irrelevant for a country like India. What needs to be kept in mind is that every country needs a unique IP approach that finds a fine balance between protection of rights of IP creators and rights of IP users. By overlooking the rich literature and practical realities on this subject, the committee has fallen for the one-sided narratives of the industry.
Another example is the recommendations in the context of AI and machine learning. In view of the increasing significance of AI and machine learning, a section of the report makes sweeping recommendations for strong IP protection of algorithms. Instead of such an approach, the committee could have asked the specific question of whether the current patent law or copyright law requires any amendments in the light of developments in AI and machine learning and to answer it, it could have asked a set of specific sub-questions. Extensive literature reviews on those questions could have provided detailed information on diverse dimensions of the debates in this regard, particularly the pitfalls of stronger IP protection and the need for addressing the fundamental question of whose incentives are we talking about – the AI system that might have created works autonomously or the firm that has invested in the AI system. Implications are very different, depending on the question posed. Countries like the UK have initiated such consultations and have reached nuanced conclusions on the specific questions.
By approaching many such complex issues without extensive literature reviews and focused questions, the standing committee has produced a document that may not be able to make any meaningful and balanced changes in many of the areas discussed.
How to study?
The second and related limitation of the report is the kind of stakeholders consulted during the preparation of the report. As a Parliamentary Standing Committee, it could have ensured a more open and extensive consultation with all the relevant stakeholders. The introduction part of the report mentions the details of the stakeholders consulted. As one may notice, the committee met DPIIT representatives, industry associations, and law firms. The report doesn’t give any hint on consultations with the academia or civil society organisations.
The report at one point also says that the committee has been apprised of the existence of around 18 IPR chairs in different universities across the country. No effort appears to have been taken to initiate consultations with even those IPR chairs and the committee has just recommended finding more information about the IPR chairs. Ideally, the committee should have engaged in extensive consultations with the academia, including those IPR chairs.
Ensuring balance of interests in an area like intellectual property rights requires extensive and open consultations with all stakeholders, and not just industry or DPIIT representatives. The fact that the consultations were limited primarily to industry representatives has led to a scenario wherein most of the recommendations lean completely in favour of industries. The discussions on Sec. 3(d) of the Patents Act 1970 and compulsory licenses under patent laws are the only notable exceptions in this regard.
When to study?
There are many areas/ issues within the broad spectrum of intellectual property rights that warrant urgent attention of Parliamentarians. Ideally a Parliamentary standing committee should have focused on those urgent issues in detail to facilitate informed debates within and outside the Parliament and it should have left the non-urgent issues to a later stage. For example, a thorough and focused review of the impact of patents, trade secrets and copyright in addressing the COVID-19 pandemic crisis in India could have been very relevant today. While the report makes some superficial remarks at different places, a focused analysis of the issues, particularly the scope as well as limitations of compulsory licenses as well as IP waivers, could have provided better guidance for our Parliamentarians and the Government in handling the IP related aspects of the crisis. However this opportunity is missed in the desire of the report to create “respect” for intellectual property rights!
The Parliamentary standing committees have a major role in facilitating informed debates in the Parliament, particularly because of the involvement of members from different political parties. A good and balanced parliamentary standing committee report can also be a rich resource for researchers and policy makers working in the area. However, the current review report on intellectual property rights regime in India is a disappointing work in this regard. By attempting to focus on too many areas, without any methodological rigour or balanced approaches, the report has wasted a good opportunity to suggest critical and balanced reforms. An article published last year has highlighted diminishing participation and deliberations in Parliamentary standing committees. This report is an illustration of the consequences of diminishing participation and deliberations.