Culture plays an important role in the development of a country and a country as diverse as India is symbolized by the plurality of its culture. It has to be ensured that the cultural works are adequately protected and that there exist no overlapping boundaries between not for-profit, educational, and commercial exploitation and distribution of such work. The author believes that open licensing would adequately ensure the promotion of Intellectual Property (IP) in cultural heritage and enable the effective usage of the said cultural work in question and at the same time, ensure adequate protection to the creator of the said work.

Open Licensing empowers new creativity, increases educational opportunities, preserves space for non-commercial culture and promotes inclusion and access to cultural works. This, it does by ensuring that the creators are duly credited for their work; commissioning of the said work as well as ensuring that such works are protected from being destructed and by preventing the cultural expressions from being exhibited in ways that disparage the community.

Further, open licensing ensures that the right to livelihood of such creators is adequately protected, in the sense that they receive economic benefits for the work they produce. To this end, the Indian Government, under the aegis of Ministry of Culture has introduced various schemes, such as the “Scheme of Financial Assistance for Promotion of Art and Culture”, among others [1]. The schemes aim at supporting and strengthening the efforts of various stakeholders vis-à-vis, wider recognition and acceptance, dissemination, preservation and promotion of the rich, diverse and vast Intangible Cultural Heritage (ICH) of India, including its recognition by the UNESCO. In this regard, open licensing enhances financial rewards to the creators.

Moreover, these schemes aim at preserving, supporting and safeguarding the various expressions of ICH by providing training support to the students and artists in these areas, providing support to practitioners through workshops, performance documentation and database creation through various media. To this end, the schemes aim at addressing areas critical for the survival and propagation of various ICH forms.

In the absence of open licensing, it would be easier for large corporations to exploit the creator of such rights without adequately incentivizing them. The author, thus, believes that these incentives along with the current copyright regime facilitates the promotion of IP in cultural heritage. Open licensing treats cultural production as a public endeavour for the benefit of all and the same has to be positively encouraged.

[1] Ministry of Culture, Schemes, available at https://www.indiaculture.nic.in/schemes .

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The High Court of Delhi released a draft of the proposed “Delhi High Court Intellectual Property Rights Division Rules, 2021” on October 8, 2021, for stakeholder consultation. The members of the Bar have been requested to submit their comments/suggestions within two weeks through an email. The draft Rules lay down the practice and procedure to be followed for matters listed before the recently created Intellectual Property Division (“IPD”) of the Delhi High Court.

The IPD will adjudicate upon matters pertaining to all forms of Intellectual Property Rights (IPR) including statutory claims as well as enforcement of common law remedies like passing off, unfair competition, disparagement, tortious activities, etc. The IPD will deal with all original, appellate and other proceedings related to IPR [including all proceedings which were hitherto maintainable before the Intellectual Property Appellate Board (“IPAB”)], except matters that are dealt with by a Division Bench. The rules also provide the categories, nomenclature and procedure for different proceedings that can be filed before the IPD.

As per the rules, in all matters filed before the IPD, an advance copy shall be served on the address of service and via email upon the Respondents and their counsels, at least forty eight hours in advance and mentioning the likely date of listing. Towards expeditious disposal, no further notice would be issued and the matter may be heard and disposed of on the first day of listing.

Notably, the rules also provide that in the matters listed before the IPD, intervention by third parties may be permitted suo moto or upon an application by any person. The IPD may refuse or accept such application after hearing the parties concerned.

The rules also provide for the consolidation of multiple proceedings relating to the same or related IPR, irrespective of whether the said proceedings are between the same parties or not, subject to the discretion of IPD.

Further, the rules also provide for summary adjudication without the requirement of filing a specific application seeking summary judgement, in cases not related to patents. The rules lay down separate categories based on which summary adjudication maybe considered in patent cases. The IPD has also been empowered to maintain a panel of experts and appoint two law researchers for assistance with techno-legal aspects pertaining to IPR.

The Draft Rules can be accessed here – https://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_5J4GUGI051K.PDF

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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Strategies for Geographical Indications Protection: Takeaways from India is a paper published in 2021 [Ananthu S Hari & Prof. (Dr.) K.D Raju, Strategies for Geographical Indications Protection: Takeaways from India. National University of Advanced Legal Studies Law Review (2021)]. The paper highlights that the Geographical Indications of Goods (Registration and Protection) Act, 1999 (GIGA) is a relatively new IP legislation, having only been enacted in late 2003. As a result, there are still areas of worry and confusion over the legislation’s execution in order to achieve the fundamental goals set forth when it was drafted. GIGA is an important legislation that goes well beyond simply meeting TRIPS responsibilities. Despite the fact that GIGA has been in effect for two decades, there is still a significant dearth of knowledge regarding the law.

In India, GI protection is not the same as it is in the EU and other developed countries. Wine and spirit protection is viewed as more crucial in the EU, whereas agricultural products and handicrafts are prioritised in India. As a result, GI protection measures must target these challenges independently. It is critical to have regional agreements among developing countries in order to properly preserve agricultural and handicraft exports. The author suggests that a similar agreement among Asian countries, akin to the EU Regulation on Geographical Indications, could be a viable option. This type of collaboration could help to bolster attempts to extend product protection.

In a developing country like India, where farmers and artisans are unable to adequately secure the GI-tagged items on their own, the government has a key role to play in terms of exporting, marketing, and infringement prevention. Since GI is regarded as “a poor man’s IPR,” government intervention is necessary to defend the collective rights and interests of GI holders. The establishment of a producer’s collective under government supervision, such as the INAO in France, may benefit the producers. In addition to the challenges of preventing infringement at the domestic level, the Government also has the extra responsibility of registering and marketing Indian products in foreign jurisdictions.

The paper concludes by putting forth the idea that enacting a comprehensive GI policy, forming a strong producer collective, and actively participating in regional agreements with GI protection measures are some of the positive initiatives India might pursue for greater GI protection. Apart from these steps, negotiating a bilateral trade agreement with the EU that focuses purely on GIs would also be undoubtedly helpful to Indian GIs. The paper can be accessed here: http://ciprnuals.in/wp-content/uploads/2021/09/III_01.pdf

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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Data exclusivity is a practice in which drug regulatory agencies prohibit the innovator company’s test data to be utilised in the registration of a generic version of that treatment. Since the marketing approval procedure is time-consuming and costly, the creators of regulatory data want exclusive periods of protection for their investments and resultant data collection. Generic producers in India, on the other hand, push for minimal protection in order to secure faster marketing approvals. The author believes that providing IP protection to clinical test data would ultimately, have a negative effect on the commercial drug market in India.

To support the argument of the author against the data exclusivity practice is, primarily, based on the detrimental impact it could have on public health. The accessibility to affordable generic drugs by the public at large remains a priority, however, this should not be accomplished at the expense of its quality and effectiveness. Moreover, generic companies usually lack the financial capabilities to undertake the entire task of conducting clinical trials and assimilating data.

In India, wages per capita income is lower in comparison to with first-world countries [1], and the unavailability of generics would inevitably result in high prices for many life-saving drugs. A prolonged delay in performing clinical studies by drug manufacturers will result in a delay of availability of such drugs at a reasonable price in the market, which is often a time-sensitive problem. This would also result in pharmaceutical giants having monopoly over such drugs. Hence, many life-saving drugs will be out of reach for individuals suffering from the deadliest diseases due to the lack of cheaper generics.

It is also noted that the clinical trial process involves ethical questions, as the proposed drugs have to be tested on animals and then on the human beings. If data exclusivity practice is adopted, then generic drug manufacturers will be compelled to undertake clinical trials for getting the marketing approval of the generic version of the same medicine. This would lead to duplicative testing and would amount to unnecessary and possible human injury associated with such process.

Therefore, if data exclusivity practice is approved, generic companies would encounter more challenges in securing marketing approvals, thereby increasing the cost of drugs available to consumers. This would negatively impact the availability of generic drugs at affordable prices in the market. Thus, the author strongly opines that the data exclusivity practice would have an adverse impact on the Indian pharmaceutical market, and should not be allowed.

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[1] World Bank, GDP Per Capita, available at https://data.worldbank.org/indicator/NY.GDP.PCAP.CD.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Department Related Parliamentary Standing Committee on Commerce furnished the “161st Report: Review of the Intellectual Property Rights Regime in India” on July 23, 2021. The Report reviewed the ongoing intellectual property rights (“IPR”) regime and put forth measures to improve the laws. Report features a section on geographical indications which dealt with gradual decrease in geographical indication (“GI”) registrations and recommended strategies to improve the number of GI registrations as well as the need to increase awareness regarding benefits of GI labelling of products.

The Report mentions that the number of GI registrations has been on downtrend from the year 2016-17. The reasons identified for the pendency or decline in registrations is due to the applicant’s inability to comply with legal requirements. It mentions that the office of GI Registry (quasi-judiciary authority) has taken steps to expedite the process of GI registrations which reduced the registration timeframe from 12 months to 8 or 9 months. It highlights that the procedure for registering “Authorised user” (producers of goods) should be accelerated. The Report highlights that the GI registry should periodically issue advisories including information on compliance necessities which will help GI applicants while submitting application for registration.

The Report in its recommendations mentions that the Department for Promotion of Industry and Internal Trade (“DPIIT”) and the GI Registry work in harmony in order to spread awareness about the benefits of GI tagging of products, which could be done by establishing kiosk and training centres, especially in remote areas. It was also suggested that formulation of marketing and advertising strategies specifically for GI tagged products may prove helpful in strengthening growth potential in financial terms.

The Report highlights the need for a centralised agency to investigate and analyse the quality assurance methods for each GI which would help in tackling infringements, unfair competition and fabrication of goods under GI tag. The agency will have the power and authority to make sure that the products being tagged under specific region are up to the standards which are mentioned in Geographical Indications of Goods (Registration & Protection) Act. This action will aid in prevention of economic losses incurred by authentic GI holders and will also secure the reputation of tagged products in global market sphere.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP