INTELLECT Al, PROPERTY RIGHTS
|
INTRODUCTION: At present, the international system for the protection of intellectual property rights is embodied in the legal framework provided by the World Intellectual Property Organization, but such existing laws are perceived to be inadequate by the West. Therefore, the West has launched a strong pressure and campaign in the Uruguay Round negotiations to create more strict laws for an international system for the protection of intellectual property rights, with provisions for dispute settlement and enforcement as part of the multilateral trading system. Article 27.3 of the Trips agreement stipulates that the patent should be given to microorganisms, which will mean to patent life. It will have far-reaching consequences for developing countries. DEVELOPMENT OF THOUGHT: Intellectual Property Rights (IPR), particularly on product patents, has been viewed by India as a barrier to foreign investment and an irritant in our trade relations with the USA. and other developed countries. Most countries have accepted stringent rules. The laws in India, relating to copyright and trademarks are very strong, it is in the enforcement that there is a weakness. The major controversy relates to the product-process patenting. India allows process patent but not product patents. Indian companies, therefore, are legally in the right when they market international products, through slight modification in the process of manufacturing. This is what has been targeted by the USA. Product patenting can adversely affect the Indian Pharmaceutical, scenario, but it is not long before. India too must comply with the world trend: CONCLUSION: It is time India stands on its own feet and gives leadership to the developing countries as we have been doing in the past. The attitude towards Intellectual Property Rights adopted by any group or political formation will be the touchstone of its patriotism in the face of a serious attempt by the US, imperialists to recolonise us and take us back to the days of the British Viceroys and Governor Generals. |
Like a physical property, ideas can, also belong to the people who conceived them. These ideas result in popular names for products, books and articles, films, music, processes for manufacturing products, and products themselves. There is a tension between the original conceiver of the idea who wants to earn the maximum incentives for his invention and the desire of the public to have that invention at the lowest possible price at the earliest time. Society feels it necessary to provide incentives to the inventors because without such incentives there is not sufficient idealism around for inventions to arise in all fields. A steady flow of inventions is essential for progress and a better quality of life for human beings. At the same time, poor countries have difficulty in paying incentives, which become more expensive for more recent inventions. There is, therefore, a tendency in such countries for inventions to be copied and made available to the public at low prices.
Laws relating to copyright, trademarks and patents are intended to moderate this tension and to prevent copying without reward to the inventor. They provide protection to the inventor for a given period of time and also enable propagation so that a larger section of the public is able to derive benefit from the invention. Ultimately, after a period of time, the invention becomes available to everybody without having to pay further incentives to the inventor.
The controversy between India and the U.S.A. which Ms Carla Hills has symbolised relates of the Indian laws about intellectual property, the protection afforded to the inventors, and the ways in which these laws are administered and enforced.
India is not a country with many inventions. This is evidenced by the far fewer number of patents filed in India, as against the number in many other countries, especially Japan and the U.S.A. Yet we also want our people to enjoy the benefits of many of the inventions of other countries. This has led to a considerable amount of copying through legal means, such as collaboration and licensing, and illegal means. Almost any film in the world is available on a copied videotape in India. Most recorded music is available on “pirated” audio tapes. There are many printers who copy bestselling books. Sometimes new books are written and published in the names of bestselling authors, in which the authors had no hand! Many products manufactured abroad are copied and sometimes have been sold under the trademark name of the Original product. In the eyes of the USA and many other countries, this copying without the permission of the inventor amounts to theft of intellectual property. The Indian copiers and Indian customers enjoy the benefits of these inventions without any reward accruing to the original inventor.
The laws in India, relating to copyright and trademarks are very strong in protecting the original owner of the trademark and the copyright. It is in the enforcement that there is a weakness. The Indian administration, police and judiciary are overburdened with having to enforce a large number of laws. They do not regard copying as a serious crime, unlike the many other crimes they have to deal with. To the slowness of the Indian legal system is added the problem of easy corruption—the copier has so much to gain that he can offer a substantial sum to the law enforcer who sometimes succumbs to the temptation. Yet there are many companies that have themselves established strong surveillance and taken the copiers to court. Their vigilance has to a large extent protected them from this kind of theft. Prominent among these companies is the large multi-nationals. Those that are not able to protect themselves, suffer because others copy their inventions without any benefit to the owner.
The major controversy relates to the patenting of products vs. processes. The inventor can patent a final product or the route to make it. There could be other routes. In India at present it is legal to search for, discover, make and market, the product through a different route. Our law does not provide for patenting of certain products. The USA. and others have argued that we must allow product patents and for a longer period than we even allow today for process patents. We are not for product patents because they prevent us from undertaking our own research and development to develop alternatives routes to reacts to the same product. After all, “imitative” inventions were the secret of Japan’s success for a long time until recently. Many other countries, including Italy, Spain, Greece have amended their laws only in the last few years to permit product patents. A poor country must have a long enough period in which it can “Imitate” the inventions and products of other countries and invent new processes to make them. This period of imitation is a prelude to original invention. Thus, breathing time is essential and India must have it before India can allow product patents.
The problem arises only for drugs, chemicals and agricultural products. Agricultural products in India are in the public domain. Research is largely conducted in governmental laboratories. The propagation of new seeds and methods quickly at low cost to the user has resulted in the substantial growth that has taken place in Indian agricultural production. Under no circumstances can India permit product patents for agricultural products and especially for seeds since that will hit at the very base for the growth of agricultural production in India.
Some research in the USA shows that the original patented drug continues for many years after the expiry of the patent, to dominate the market through its trademark name. Since Indian trademark laws are strong, the patent owner in effect has a product patent through his trademark. if we allow product patents for drugs and chemicals only, and for the same period as we now do process patents, the owner of the patent will be able through his trademark to enjoy dominance even after the expiry of the patent.
At the same time, it is essential that all such patents be filed in India and that there is a procedure to compel the owner to „license the patent for Indian use.
 India can, in the case of dings and chemicals permit product patents for a limited period. Our registration procedures could be speeded up from the present five years or so between application and granting of the patent. If that cannot do the latent period can be accounted for from the date of registration and not from the date of application. In this way, the patent owner can enjoy the benefit of the patent for the full period, which he is not able to do at present because of the long interval between filing and granting of the patent.
The controversy over IPR was avoidable. Unfortunately, it became politics sized and issues of national sovereignty came up for debate. It can be nobody’s case that India wants to progress merely by copying and without payment. Nor can anybody in the world arouse that India should not enjoy similar benefits as other countries that are now rich but which were able to imitate and progress.
