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DR.

RAM MANOHAR LOHIYA


NATIONAL LAW UNIVERSITY,
LUCKNOW

INTELLECTUAL PROPERTY RIGHTS


SYNOPSIS
Topic: GIPC IP INDEX AND US SPECIAL 301 REPORT:
RELEVANCE FOR INDIA

SUBMITTED BY: SUBMITTED TO:


MANJUSHA TIWARI MS. PRIYA ANURAGINI
Semester VII Assistant Professor (Law)
Roll no. 167 Dr. RMLNLU
Enrollment no- 140101058
ACKNOWLEDGEMENT

I am profoundly thankful to my teacher Ms Priya Anuragini, for providing me with this


wonderful opportunity to work upon this project after doing which I feel to have enlightened
myself in this regard and for the precious time he spent guiding me for the completion of this
project.

I also thank the members of the library staff for their cooperation in making available the
research material and database. Last but not the least I would like to thank my friends it was
because of their help that I had been able to complete my project.

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ABSTRACT

Strong IP protection and enforcement are essential to promoting investment in innovation in


the environmental sector. India has been on the ‘Priority Watch List’ for decades now for
having “weak” IPR laws and patent protection. India is ranked 43rd out of 45th in GIPC IP
Index. These reports will have a negative impact on India’s trade and investment. But these
index and report are US inclined and, in these project, analysed keeping in mind India’s
context.

STATEMENT OF PURPOSE

The purpose of this project is to analyze GIPC IP Index and US Special 301 Report in India’s
context and to reason why India, over the decades, has been considered to be a challenging
economy in IP and to figure out ways to fare out well in these reports.

HYPOTHESIS

While the Indian government issued the National Intellectual Property Rights (IPR) Policy in
2016, IP-intensive industries continued to face challenges and fundamental issues were not
addressed.

RESEARCH QUESTIONS

1. Why is India raked so low over the years in Intellectual property Rights in the global
world when it has IP Laws?
2. What are the steps taken and what can be taken to improve India’s condition when it
comes to IP rights?

RESEARCH METHODOLOGY

SOURCES OF DATA

The non-empirical approach of research has been used and Reports and web sources have
been consulted and taken inspiration from in the making of this project.

METHOD

Descriptive and analytical approach.

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MODE OF CITATION

OSCOLA shall be followed as the mode of citation.

INTRODUCTION
India, despite having laws and regulations for intellectual property, remains one of the
world’s ‘most challenging major economies’ with respect to protection and enforcement of
intellectual property laws as per the US Special 301 Report and GIPC IP Index 2017.

India is ranked 43rd out of 45 countries in the International IP Index released by The U.S.
Chamber of Commerce Global Intellectual Property Centre recently. Moreover, India is
placed on the ‘priority watch’ list in The Special 301 Report. India recently rolled out
National IPR Policy in 2016 but still it didn’t fare well in these reports.

NATURE OF THESE RANKS AND REPORTS


US SPECIAL REPORT:
The US is authorized to prepare this Report under Section 301 of the US Trade Act, 19741.
Under this statutory mandate, the USTR scrutinizes IPR protection and enforcement practices
of its trading partners to ensure their alignment with US law and policy. USTR creates an
annual list of countries that it believes have either national laws or regulations that
detrimentally affect U.S. trade or the rights of IP holders and if certain acts of a trading
partner are below the ‘benchmark’, it is authorized to take retaliatory measures like denial of
preferential duty for exports, elevated to the status of a Priority Foreign Countries, which in
turn will result in further unilateral investigations followed by punitive trade sanctions.
“Benchmarks” refers to legislative or other institutional action that a sovereign country like
India will need to establish to facilitate U.S. trade. Thus, it is not obliged to take
developmental or public health needs of the trading partner into account when developing
action plans or listing benchmarks.2 Instituting benchmarked changes remains the only way
to remove a country from the Special 301 list.

1
US Trade Act, 1974, sec 301.
2
Moushami P. Joshi and Srividhya Ragavan, ‘Trading Charges’ (The Hindu, 18 October, 2017), <
http://www.thehindu.com/opinion/op-ed/Trading-charges/article14246068.ece> accessed on 23rd October 2017.

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GIPC IP INDEX

GIPC’s belief: In the 21st century, innovation and creativity remain the driving forces behind
America’s competitiveness and economic future. IP-intensive industries employ more than
40 million Americans and account for 74% of exports and $5.8 trillion in GDP. We cannot
thrive without strong protection of intellectual property (IP) rights, which incentivize new
and improved innovation and creation, encourage investment and commercialization, and
help advance the spread of knowledge globally.3 Simply, GIPC is not an academic institution,
it is a lobbying group and its entire mandate is to protect American IP interests and it should
come as no surprise that their IP index is designed to reflect how well a country protects
American IP interests.4 The biggest problem with the index: it is rife with methodological
flaws deploying indices subjectively and not objectively and that have absolutely no relation
with any of the end goals mentioned above, such as innovation and technological learning.5
Illustratively, countries are marked higher if they sign up to more international treaties and
free trade agreements (FTAs). Surprisingly, Togo, a tiny African nation boasting far less
technological and innovative proficiency than India, merits a higher score (an almost full
score on the GIPC index), only because it autographed a far higher number of international IP
treaties than India! It is a fraudulently formalistic method of shaming countries.

INDIA’S ACCOMODATION

The Special 301 list has consistently featured India, most often as a ‘Priority Watch List’
country, since its institution in 1989. Over the years, India has become more transparent,
engaged, and even willing to accommodate U.S. concerns. Despite the proactive steps taken
by India to improve domestic IP protection, it been unsuccessful in placating the U.S. Under
U.S. laws, compliance with WTO obligations is immaterial. Thus, a country that is compliant
with WTO rules can be the subject of investigations if the USTR believes that U.S. trade is
detrimentally affected by that country’s IP laws. Thus, India’s traditional defence that it is in
compliance with WTO obligations has limited reach.

SHOULD INDIA PAY HEED

Special 301 Report is not legally accurate just a document used to threaten other countries
into submission to unilateral U.S. demands. And with the demise of the TPP, those threats are

3
http://www.theglobalipcenter.com/about/mission-and-goals/
4
Prashant Reddy, ‘The Press Release Journalism Around the GIPC IP Index’< https://spicyip.com/2017/02/the-
press-release-journalism-around-the-gipc-ip-index.html> accessed on 23rd October 2017
5

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now emptier than ever before.6 In GIPC IP Index, scores are given ignoring the TRIPS
Agreement and the WIPO Development Agenda and all other international norms for
flexibilities in IP regimes. The challenges of IP as cited are with the scope of patentability for
computer-implemented inventions, Section 3(D) of the Indian Patent Act, and the recent High
Court of Delhi decision regarding photocopying copyrighted content.7 Compulsory licensing
is another controversial issue but the report seems to have ignored is the Doha Declaration on
TRIPS and Public Health that gives the freedom to countries to implement their own
standards.8 With regards to S. 3(d) of the Patents Act it is to be noted that the TRIPS
agreement, still allows flexibility for countries to legislate with regards to their IP policies
makes 3(d) perfectly TRIPS compliant.9 Other patent related grievances pertain to the highly
contested guidelines for Computer-Related Inventions (the CRI Guidelines) which allegedly
restrict the patentability of such inventions. Recently, ASSOCHAM, an apex trade
association in India, appealed proposing suitable amendments to these guidelines. Therefore,
it is perhaps only a matter of time that these guidelines shall be amended to meet the demands
of the Indian industry and the USTR. India’s non-accession to World Intellectual Property
Organisation’s Internet Treaties merits special attention. The Indian Copyright Act, 1957 was
amended in 2012 to comply with the Treaties even though strangely it never ratified them.10

CONCLUSION

The IP index is a work of fiction as it is benchmarked against the Trans-Pacific Partnership


agreement from which the US walked out. It is also not objective in its assessment of India,
especially in four areas of the index—term of protection which is TRIPs—compliant; well-
known marks are very well protected; our design protection is in accordance with TRIPs; and
border protection measures are brilliant. Some say, looking at it objectively, the overall score

6
Jeremy Malcolm, ‘Post-TPP Special 301 Report Shows How Little Has Changed’ <
https://www.eff.org/deeplinks/2017/04/post-tpp-special-301-report-shows-how-little-has-changed> accessed on
24th October 2017
7
Ranjani Ayyari, India continues to be a laggard on patents: International IP Index,
<https://timesofindia.indiatimes.com/business/india-business/india-continues-to-be-a-laggard-on-patents-
international-ip-index/articleshow/57040756.cms> accesses on 26th October 2017.
8
Thomas J. Vallianeth, ‘Analyzing the AFTI’s Report for the Special 301 Investigation’,
<https://spicyip.com/2014/02/analysing-the-aftis-report-for-the-special-301-investigation.html> accesses on
26th October 2017.
9
Thomas J. Vallianeth, ‘Analyzing the AFTI’s Report for the Special 301 Investigation’,
<https://spicyip.com/2014/02/analysing-the-aftis-report-for-the-special-301-investigation.html> accesses on
26th October 2017.
10
https://qrius.com/us-strikes-indias-intellectual-property-regime-will-india-relent/

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for India should be 12.53 which makes it rank 11 out of 45 countries.11 The US conducts
itself as the sole arbiter of all things “good IP” misguided by commercial interests. It is called
“a public law devoted to the service of private corporate interests”. Due to this unilateral,
biased approach of the Report, no deference should be paid to it by the Indian Government.
To sum up, there are a lot of aspects that the report has not considered or has chosen to view
with a rather myopic perspective and this is very troubling, particularly for the consequences
that this report could bring about. As the pharma lobby groups in the US are very active, one
expects they will strongly lobby with Congressmen to seek action against India. The USTR is
bound, under the TFTEA, to take action. Since there is no precedent and since it would be for
the first time any such thing could be considered, the implications are still not clear. What is
worrying is that there is now this real danger and an uncertainty, and in case action is sought
or taken in sectors that hurt India most like, say, the IT, pharma or textiles or duty is asked to
be imposed on goods coming from India, it could have serious implications.12 India is a
developing country and must strive for improvement in its IP fronts but should not succumb
to the pressure and ignore India’s interests, health issues and its developing needs and in
trying to do so

11
Sheerja Sen, ‘India ranks 43 out of 45 countries in UNSCC intellectual Propert Index’
<http://www.livemint.com/Politics/xclc5fGhkySYU65WAI8WnL/India-ranks-43-out-of-45-
countries-in-USCC intellectual-prop.html> accessed on 22nd October 2017.
12
E. Kumar Sharma, ‘India still on USTR’s Proprity Watch List; Will it hurt the country’s trade?’
http://www.businesstoday.in/buzztop/buzztop-feature/ustr-priority-watch-list-will-it-hurt-countrys-
trade/story/252254.html accesses on 26th October 2017.
.

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BIBLIOGRAPHY

Reports:
1. US Special 301 Report, available at:
https://ustr.gov/sites/default/files/301/2017%20Special%20301%20Report%20FINA
L.PDF
2. GIPC IP Index 2017, available at: http://www.theglobalipcenter.com/wp-
content/uploads/2017/02/GIPC_IP_Index_2017_Report.pdf

Web Sources:
 E. Kumar Sharma, ‘India still on USTR’s Proprity Watch List; Will it hurt the
country’s trade?’ http://www.businesstoday.in/buzztop/buzztop-feature/ustr-priority-
watch-list-will-it-hurt-countrys-trade/story/252254.html
 Sheerja Sen, ‘India ranks 43 out of 45 countries in UNSCC intellectual Property
Index’ <http://www.livemint.com/Politics/xclc5fGhkySYU65WAI8WnL/India-
ranks-43-out-of-45-countries-in-USCC intellectual-prop.html>
 https://qrius.com/us-strikes-indias-intellectual-property-regime-will-india-relent/
 Thomas J. Vallianeth, ‘Analyzing the AFTI’s Report for the Special 301
Investigation’, <https://spicyip.com/2014/02/analysing-the-aftis-report-for-the-
special-301-investigation.html>
 Ranjani Ayyari, India continues to be a laggard on patents: International IP Index,
<https://timesofindia.indiatimes.com/business/india-business/india-continues-to-be-a-
laggard-on-patents-international-ip-index/articleshow/57040756.cms>
 Jeremy Malcolm, ‘Post-TPP Special 301 Report Shows How Little Has Changed’ <
https://www.eff.org/deeplinks/2017/04/post-tpp-special-301-report-shows-how-little-
has-changed>
 http://www.theglobalipcenter.com/about/mission-and-goals/
 Moushami P. Joshi and Srividhya Ragavan, ‘Trading Charges’ (The Hindu, 18
October, 2017), < http://www.thehindu.com/opinion/op-ed/Trading-
charges/article14246068.ece>
 Prashant Reddy, ‘The Press Release Journalism Around the GIPC IP Index’<
https://spicyip.com/2017/02/the-press-release-journalism-around-the-gipc-ip-
index.html>

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