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IPR

Time to get on the 'rights' track

Subramanium Vutha*

The issue of intellectual property rights is a crucial element in the World Trade Organisation edifice. Learning to make the most of this reality can fetch India and Indian businesses huge gains

The basic World Trade Organisation (WTO) agreements are already in place and these are binding on all signatories, including India. While this has happened, there have been several consequential changes in Indian laws relating to intellectual property rights (IPRs). For example, we have a new trade marks statute. This has not yet been brought into force, but is expected to take effect shortly.

A key feature of this new law is the proposed introduction of service marks, a development that has tremendous implications for Indian businesses. Services constitute a major portion of India’s GDP, and it is here — with our youthful population, large and diverse pool of talent, and growing access to the Internet and other means of communication — that we have an edge over most countries.

Secondly, we have a new statute for the protection of designs. India can be a formidable competitor in the market for new industrial designs and this new statute is timely in this regard. Thirdly, certain changes to the Patents Act usher in the possibility of software-related invention patents. This has major ramifications for India. Several more changes are slated to be made in the statute book. This article focuses on the likely consequences of these.

IPRs are knowledge with legal sanctity: In an era where knowledge is king, IPRs represent forms of knowledge which the law recognises and protects. Countries that have understood this have spurted ahead in the last 200 years. Here lies one of the main differences between the United States and India. Although both countries have highly educated and talented people, it is the American recognition and enforcement of IPRs that has propelled it forward.

IPRs go beyond patents: IPRs consist of trademarks, service marks, patents, copyright, trade secrets and geographical indications. In trademarks, service marks, copyright and geographical indications, India and Indian businesses have a tremendous advantage over other countries. We should leverage these advantages to capture world leadership in select areas of international trade.

The ‘attention’ economy and trademarks: Professor Herb Simon had described today’s economy as the 'attention economy'. In such an economy it is not goods and services that are in short supply, it is the attention of human beings and organisations. As businesses try to distinguish their products and services from those of others in a crowded marketplace, trademarks and service marks will become ever more important.

Copyright and India’s cornucopia of content: India is a diverse and rich source of content: films, music, folk art, dance, drama, educational material, etc. Copyright protection for the prolific outpouring of India’s creative talent will help the country’s businesses — not just in software, but in every area of intellectual endeavour — reap a rich harvest in the global market. More attention needs to be given to copyright protection of India’s content businesses.

Software patents affect all the businesses: Indian businesses need to realise that the impact of software patents is relevant not merely to the infotech industry but to all businesses. Software is now a crucial part of various domestic and international appliances, from washing machines to microwave ovens, from lathes to cranes. The impact of software patents will be felt by all industries and businesses.

Natural resources and IPRs: India’s abundant and manifold base of natural resources and regional specialities will benefit immensely from IPR protection. France has champagne; India has Kolhapuri chappals, Coimbatore ghee, Kanjivaram sarees, Goan feni, Kashmiri saffron and much more. Geographical indications can be used to protect these and many other such national treasures.

India as a services superpower: As a potential services superpower, India and its businesses need to adopt and leverage service marks to move up the value chain and capture world markets. Indian businesses should pressurise the government to accelerate the process whereby a legal framework for service marks is established. The law is in place, but is not being implemented.

The WTO and the post-WTO IPRs regime are vital to all aspects of Indian business. Recognition of this will bring rich rewards; failure to do so will be hazardous.