New IPR Regime: Challenge or Opportunity


Nidhi Srivastava
Lecturer (Finance)
Institute of Technology & Science

India ushered in new intellectual property regime (IPR) by passing the 3rd Patent Amendment Bill. We have the phenomenon of increasing dominance of the new knowledge economy over the old 'brick & mortar' economy. Generation and protection of new knowledge assumes importance in this context Albert Einstein had once said 'Imagination is more important than knowledge.' Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.

Intellectual property rights are customarily divided into two main areas:

  • Copyright and rights related to copyright

The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of 50 years after the death of the author. Also protected through copyright and related (sometimes referred to as "neighbouring") rights are the rights of performers (e.g. actors, singers and musicians), producers of phonograms (sound recordings) and broadcasting organizations. The main social purpose of protection of copyright and related rights is to encourage and reward creative work.

  • Industrial property

Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets. The social purpose is to provide protection for the results of investment in the development of new technology, thus giving the incentive and means to finance research and development activities.

Intellectual property: protection and enforcement

The WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), negotiated in the 1986-94 Uruguay Round, introduced intellectual property rules into the multilateral trading system for the first time. It lays down minimum standards for protection and enforcement of intellectual property rights in member countries, which are required to promote effective and adequate protection of intellectual property rights with a view to reducing distortions and impediments to international trade. The obligations under the TRIPS Agreement relate to provision of minimum standard of protection within the member countries legal systems and practices.

The agreement covers five broad issues:

* How basic principles of the trading system and other international intellectual property agreements should be applied
* how to give adequate protection to intellectual property rights
* how countries should enforce those rights adequately in their own territories
* how to settle disputes on intellectual property between members of the WTO
* special transitional arrangements during the period when the new system is being introduced.

Types of intellectual property

The areas covered by the TRIPS Agreement

* Copyright and related rights
* Trademarks, including service marks
* Geographical indications
* Industrial designs
* Patents
* Layout-designs (topographies) of integrated circuits
* Undisclosed information, including trade secrets

Issues & Challenges

The knowledge based industry in India, such as the IT industry; Biotechnology, microelectronics etc. will have to face new challenges in the new IPR regime. If we wish to become IT superpower, we will have to reduce the content of body shopping and move on to innovative IT products, which will need IP protection. It is true of Biotechnology, which now has a turnover of $1 billion.

Before we protect IP, we must generate IP, which is worth protecting. Our institutions, national laboratories and industrial R&D laboratories will have to gear up for this. A number of patent training institutes will have to be set up. China has already set up 5000 patent training institutes! Our graduates coming out of engineering and technology streams have no idea about IPR, and yet it is these young people, who will have to fight these emerging wars in the knowledge market.

There are special areas of concern to India, and that includes its rich traditional knowledge base, in particular its great strength in traditional medicine. The grant of patents on non-original innovations (particularly linked to Traditional medicines), have been causing great concern to the developing world. It was CSIR that challenged the US patent # 5,401,501, which was granted for the wound healing properties of turmeric. In the landmark judgment, the US patent office revoked this patent in 1997, after ascertaining that there was no novelty; the findings by innovators having been known in India for centuries. Same situations were faced in case of Neem and Basmati rice. To mitigate this problem, steps have been taken to create a 'Traditional Knowledge Digital Library' (TDKL) on traditional medicinal plants and systems by CSIR in partnership with AYUSH.

An ideal regime of intellectual property rights strikes a balance between private incentives for innovators and the public interest of maximizing access to the fruits of innovation. According to the study conducted by Goldman Sachs India is supposed to assume the position of a top economic power by 2050. But it can be predicted if India plays its cards right, it can become a global knowledge production center by 2020. For this to become reality we have to not only focus on idea generation but also on its protection into mainstream of our endeavors in education, science and technology, legal and judicial systems, trade, economics, etc. this is a big challenge which India will take and convert into a huge opportunity that awaits us as we begin our great journey at the dawn of this new century.

Nidhi Srivastava
Lecturer (Finance)
Institute of Technology & Science

Source: E-mail July 26, 2005


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