Understanding intellectual property: Has ‘trips’ really worked for developing countries? - The Daily Guardian
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Understanding intellectual property: Has ‘trips’ really worked for developing countries?

Saransh Chaturvedi

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The author in the previous posts of Understanding IP primarily dealt with the area of jurisprudential foundation of Intellectual Property (IP). In the first piece, the author discusses the foundational analysis based on Locke’s justification of property. The requirement of labor in one’s idea provides an insight towards the notion of “effort” is assumed for getting the reward. The societal attitudes for getting motivated for rewards form a very important role in today’s IP regime. The second piece revolves around the personality justification of IP. The personality always matters while involving IP. The creator’s personality plays an important role in making IP whether it is an artistic work or an invention. The third piece revolves itself around the utility and incentive-based analysis of IP. The utility-based approach is very important for the development of IP as it provides the fruits of the labor. These three pieces develop the foundational principle of IP or rather we can say the jurisprudential foundation.

Now the author will move on to provide the analytical perspective of various concepts that are associated and forms the bedrock of IP regulations. This piece will be dedicated to analyzing the famous agreement, which forms the preamble of IP legislation in various developing countries i.e. Trade-Related Aspects of Intellectual Property Rights, commonly known as TRIPS. TRIPS has gained substantial attention over the globe by providing various regulations to structure minimum standards for the protection of Intellectual Property in domestic law. Why the author said it to be the preamble is because of this nature of guiding various countries in their IP regulations. Various academic articles have debated over the pros and cons of TRIPS keeping developing countries at the center point. While the author will not be taking a standpoint and neither will summarize provisions but will try to provide a comprehensive outlook of TRIPS to leave it to the reader to frame opinions.

To tell the history of TRIPS, in brief, the story starts in 1947 when various countries felt the need of having a body for regulating international trade. This result in having a multilateral treaty which came to be known as the General Agreement of Trade and Tariff (GATT) entered into force in 1948. In 1994 the world witnessed the Uruguay Round Negotiations which established the World Trade Organization (WTO) which forms the successor of GATT. The erstwhile GATT was replaced by the WTO. This does not mean that GATT was abolished. The establishment of WTO comes up with various agreements. GATT becomes one of those agreements forming the part of WTO. These agreements constitute a variety of regulations dealing with goods, services, agriculture, etc. TRIPS is one of those agreements which forms the base of Intellectual Property. This agreement can be attributed as a model for developing countries to frame their domestic intellectual property law

IP was never an important part of any international agreement even after the enforcement of GATT. Even in various bilateral and multilateral treaty agreements, IP was never a subject for negotiations. The greater reliance on the contribution of technology and international trade moving at a faster pace have made IP, the central point of all the agreements, be it bilateral or multilateral after the 1970s and 80s. This era was greatly influenced by the developed nations mainly Europe and the US. This is a reason why we see debates with regards to the provisions of TRIPS being subjected to developed nations and not for the developing nations. This has always been the subject matter of discussions around the world with regards to less compliance of TRIPS for developing nations. Let us discuss some of the aspects of TRIPS that primarily limits the developing nations to ponder upon their IP rights.

Every country has its own need for healthcare and welfare facilities. In the prevailing situation of Covid-19, we have seen how important healthcare regulation can be for a country. What becomes more important is access to medicine. A drug manufactured enjoys the patented protection which grants it enough right to recoup the cost incurred in the manufacturing process. The patent law across the world gives exclusivity to the originator for a simple philosophical understanding to regain the cost incurred while proceeding with the research and development (R&D) for making the drug. This understanding has valid reasoning but it does not, in any case, seems to favor countries, especially developing, to ensure cheaper, affordable, and accessible medicines in the time of the pandemic. The developing countries lack sufficient resources to initiate R&D and even facing challenges like insufficient expertise and healthcare system over the subject matter. This leads to countries importing various drugs thereby resulting in expensive drug marketing far from making it accessible to the poor population of the country.

For example, let’s see the provision of Article 39.3 in the TRIPS which talks about the protection of undisclosed information gives us the presence of excessive protection in favor of IP holders. This generally tends to minimize the prospect of ensuring cheaper and affordable medicine in developing countries. Undoubtedly, it depends upon the states as to which area does require a robust intellectual property policy and which does not. Nevertheless, these criteria of providing a minimum standard have proved to be gone beyond the structure of minimum intellectual property protection. The usage of IP protected drugs or products by developing countries, which are manufactured by Multinational Corporations that are primarily based in developed countries, ensure a systematic payment of royalty. This means that developing countries are always in a disadvantageous position when it comes to using protected materials.

There has always been a different perspective of ideological mindset between western and eastern models. TRIPS has always been a by-product of this western-based model of profit incentivization. When we talk about the jurisprudential aspect of IP, we tend to understand the utility and incentive-based model which substantiates the model on which the western mindset is based upon. The incentive is a necessary part of the effective development of IP. But this incentivization should not defeat the right of developing countries to effectively exercise their rights to provide affordable access to medicine. The author feels that there is a substantial gap in effectively maintaining this conundrum. One side demands heavy protection for IP related rights and the other is still to provide minimum protection for IP.

On the contrary, there comes some similar flexibility enshrined in TRIPS. Article 8 of the TRIPS in the very first move explains the principle that the member states are free to adopt measures that could protect public health and nutrition and to promote the public interest in sectors of vital importance, provided such measures are consistent with the provision of agreements. The phrase “consistent with the provision of this agreement” opens up a lot of interpretational ambits again going against the favor of developing nations. Even if a developing nation adopts measures, there are likely chances that they will face stern reaction from other countries especially developed, if it goes against any of the provision of this agreement.

On this very similar line, we find very substantial flexibility in TRIPS, i.e. of compulsory licensing. Article 31 of the TRIPS Agreement specifies the ‘Other Use without authorization of the Right Holder’. Through this article TRIPS explains the provisions which the member countries should follow while pursuing the “other use”. Compulsory licensing is the process whereby an authorization is given to the third party by the government to make, use or sell the particular product and even to use the process of the patent, without the consent of the patent owner. This might be the most powerful provision being provided which can prove to be very beneficial for developing countries. The author will try to write a comprehensive article on compulsory license in the upcoming pieces. Similarly, we find an exception in Article 27.2 which gives the right to exclude patentability to protect public order and morality. Article 30 also confers the right to the member for providing exceptions to the exclusive rights conferred by a patent.

TRIPS do provide rights for the benefit of IP holders but it also leaves a lot of scopes for the developing nation to exercise various flexibilities in terms of domestic regulations and the socio-economic condition prevalent. But a close study by various academicians has shown that the developing countries seldom use these flexibilities in their domestic law. The reason might not be that easy to answer but it can be assumed that there seems to be a fear of sanction by the developed countries. This fear can be obvious because of the dependency on developed countries for various needs. As specified earlier, the author will not be taking any standpoint but will rather provide his general outlook for TRIPS. In the upcoming piece, the author will delve upon some of the provisions which although not present in TRIPS but have been construed to be TRIPS-plus provisions.

(Author is an advocate practicing in Allahabad High Court)

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Policy & Politics

Textiles sector poised for a $100 bn export: Vikram Jardosh, MoS for Textiles

Industry should take full advantage full advantage of the global market shifts: Secretary, Ministry of Textiles.

Tarun Nangia

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The Government has set a strong aspirational goal of achieving $100 billion from textiles exports in thenext 5 years and we will remain committed to ensure implementation of all development schemes and bring in many more schemes in pursuit of this aspiration, said Darshana Vikram Jardosh, Minister of State for Textiles, Ministry of Textiles, Government of India.

Government has already announced MITRA scheme to attract new investments and build mega textile parks in the country. Other significant programs including the launch of PLI scheme for achieving manufacturing excellence and RoDTEP for enhancing export competitiveness will help India to position it as a global leader in the sector.

The Minister was speaking at the inauguration of TEXCON: The 13th edition of the International Conference on Textiles & Apparel organized by the Confederation of Indian Industry today. A specialCII-Kearney report was also released on “Creating a competitive advantage for India in the global textiles and apparel industry”. The report covers the entire textile value chain and highlights the imperatives for both government and industry to bring global positioning for the sector.

Speaking on the occasion, Upendra Prasad Singh, Secretary, Ministry of Textiles said that the Government is making all efforts to proactively address the challenges and facilitate the creation of an enabling environment for the growth and development of the Textiles and Apparel sector. “We are capable to meet the domestic as well as the global market demands. I would like to urge the industry to take full advantage of the present global market shifts in establishing the excellence and prominence of India globally.”

Dilip Gaur, Chairman, CII National Committee on Textiles and Apparel & Managing Director, Grasim Industries Limited, Aditya Birla Group said, achieving breakthrough growth in Indian textiles will imply doubling down on multiple areas. The key ones include increasing share in MMF fiber and yarn, become regional leaders in apparel and fabrics and further augmenting India’s position as global home textiles leader. “Government of India has already shown strong commitment to this sector by launching multiple mega schemes in recent times which set a very positive tone for the future and to energize all industry stakeholders to take necessary steps forward in achieving the goals”, he added.

Kulin Lalbhai, Co-Chairman, CII National Committee on Textiles and Apparel & Executive Director, Arvind Ltd said, “The growing sentiment around “China plus one” sourcing is a golden opportunity for Indian textiles to stage a turnaround and gain back its leadership position as a lead exporting economy.” India is much better placed to maximize this opportunity as compared to competitors like Vietnam and Bangladesh because of India’s strategic depth.

Dilip Gaur, Chairman, CII National Committee on Textiles and Apparel & Managing Director, Grasim Industries Limited, Aditya Birla Group said, achieving breakthrough growth in Indian textiles will imply doubling down on multiple areas. The key ones include increasing share in MMF fiber and yarn, become regional leaders in apparel and fabrics.

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Piyush Goyal calls for free trade within rules-based multilateral trading system

We must work to resolve issues posed by Non-Tariff Barriers in international trade: Piyush Goyal.

Tarun Nangia

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The Minister of Commerce and Industries, Consumer Affairs, Food and Public Distribution and Textiles, Piyush Goyaltoday called for free trade within a rules-based multilateral trading system with honesty and transparency as core values. He added that wherever India faces an unfair or unjust treatment, it will take reciprocal action. Shri Goyal also emphasized upon the need for resolution of issues posed by Non- Tariff Barriers in international trade. He was addressing the 54th Convocation of Indian Institute of Foreign Trade in New Delhi today.

Referring to India’s recent achievement of 100 crore vaccines, he said that the milestone was the result a collective effort of 130 crore Indians and a proof of India’s ‘Atmanirbhartha’ and its resolve to leverage its capacities to the best possible extent and to serve the needs of the entire world.

Piyush Goyal said that a convocation is an important ceremony that marks the next step in the journey of the graduates when they grow from ‘acquisition of knowledge’ to ‘application of knowledge’.

He commended IIFT for contributing immensely to India’s external trade since its establishment in 1963. He said that IIFT has been widely recognized for its strong knowledge &resource base and has been consistently ranked amongst theleading business schools in the Asia-Pacific Region.

Underscoring the need for a committed and vibrant leadership in the field of academics in India, Shri Piyush Goyal called for enhancing exposure of our students to the best of technology, foreign law, economics, and international trade. Calling for tie-ups of Indian Universities with institutions of eminence across the world, he asked Indian universities to enter into sustained collaborations with such institutions.

Encouraging academic institutions to engage on a much larger scale with the industry, Shri Goyal asked students to take up internships with both the public sector and private players. Speaking of the opportunities offered by online education, Shri Goyal called for more exploration into online and hybrid modes of education.

Piyush Goyal told the students that they were graduating amidst one of the most disruptive events in the collective memory of our times. He emphasized that in the post-COVID ‘New Normal’, we can no longer play by the old rules. He called for using the disruptive interventions brought about by COVID to reorient our conventional, traditional thinking processes. Offering two cents from his versatile experience in foreign trade, Shri Goyal urged the students to ‘Learn, Unlearn, Relearn and Repeat’.

Piyush Goyal said that despite challenges, India under PM Modi has aimed to convert a crisis into an opportunity for transformation. He said that India is being looked upon as a trusted partner & we are engaging with like-minded nations e.g. EU, UK, Canada, Australia & UAE for early conclusion of FTAs.

Referring to India’s ambitious programmes like the PM GatiShakti National Master Plan for infrastructure and multimodal connectivity, Shri Goyal said that there was a need for planned, focussed efforts to create infrastructure in the country by breaking silos and bringing in synergy. “There is a need to bring in quality and productivity in all we do. A ‘Made in India’ product must be a guarantee to the world”, he added.

Applauding the Prime Minister, Narendra Modi’s visionary leadership, Goyal said that India’s decisive leadership, strong industry, vibrant media and its resolve to uphold the rule of law, had made India a trusted partner to world nations.

Lamenting that India had suffered from several missed opportunities in the past, Shri Goyal expressed the hope that we would now be able to seize every opportunity available to us to grow. “The past is a stepping stone, not a milestone”, he added.

Observing that contemporary India was confident & yet dissatisfied, he said that dissatisfied, confident people are the ones who would change the world. He urged fellow Indians to never settle for less and to work together to make India a global leader.

On the occasion, Shri Goyal presented several awards for excellence to graduating students.

Encouraging academic institutions to engage on a much larger scale with the industry, Shri Goyal asked students to take up internships with both the public sector and private players. Speaking of the opportunities offered by online education, Shri Goyal called for more exploration into online and hybrid modes of education.

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Builder hardware products from India have considerable global demand, says Minister of State for Commerce Som Parkash

Tarun Nangia

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Builder hardware industry is linked to the construction equipment industry where the revenue was valued at US$ 6.5 billion in 2020 and construction market is expected to be the third largest globally by 2025: MSME Secretary B B Swain

India is the 17th largest supplier of builder hardware products and is on its way to fulfil the government ambition to become a global manufacturing hub of builder hardware products.

Builder Hardware is another performer making India as one of the top 20 suppliers with a 1.2 percent share in the world builder hardware export pie, said Som Parkash, Minister of State of Commerce & Industry

While addressing the Builder Hardware Expo, organised by EEPC India, virtually today, the Minister noted that builder hardware products from India have considerable demand across the continents.

Indian builder hardware product is one of the best performing segments in the Indian engineering goods sector which has been the key driver of merchandise exports from the country.

“Builder hardware industry is linked to the construction equipment industry where the revenue was valued at US$ 6.5 billion in 2020 and the construction market is expected to be the third largest globally by 2025,” said Mr B B Swain, Secretary, Ministry of Micro, Small and Medium Enterprises (MSME).

India is the 17th largest supplier of builder hardware products and is on its way to fulfil the government ambition to become a global manufacturing hub of builder hardware products.

Swain stated that EEPC India with more than 60 per cent of its members representing MSME sector took several initiatives even during pandemic to provide global interaction opportunities to small players in the form of webinars and virtual Expos.

“The Government of India has been proactive to ensure that all the benefits of the MSME schemes reach the intended beneficiaries in time,” said Mr Swain.

EEPC India Chairman Mahesh Desai said that the four-day virtual Expo would provide opportunity to the Indian exhibitors to display an array of over 200 domestic builder hardware products to overseas buyers from nine focus regions and trade blocs.

“The buyers would comprise contractors, builders, building engineers, architects, landscape artists, interior designers, consultants and project management professionals,” he said.

Speaking at the Expo, EEPC India Vice Chairman Arun Kumar Garodia said India belongs to the league of leading builder hardware manufacturing and exporting nations.

“The Government of India has now set a National Mission of merchandise exports to reach US$ 400 billion within this fiscal, US$ 500 billion by FY-24 and US$ 1 trillion by FY-28 by making Indian products the only choice for global buyers,” he said.

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MOU SIGNED BETWEEN J&K AND GOVERNMENT OF DUBAI FOR REAL ESTATE DEVELOPMENT, INDUSTRIAL PARKS, SUPER SPECIALITY HOSPITALS

MoU will give UT a big developmental push: Piyush Goyal

Tarun Nangia

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Jammu and Kashmir administration has signed a Memorandum of Understanding (MoU) with the Government of Dubai for real estate development, industrial parks, IT towers, multipurpose towers, logistics, medical college, super specialty hospital and more.

Union Minister for Commerce and Industry Piyush Goyal highlighted the significance of the day and said that with the signing of the MoU with Dubai Government, the world has started to recognize the pace with which Jammu and Kashmir is traversing on the development bandwagon. This MoU gives out a strong signal to the entire world that the way India is transforming into a global power, Jammu & Kashmir is having a significant role in that as well.

This MoU is a milestone after which the investment will pour in from entire globe and is a big developmental push. Different entities from Dubai have shown keen interest in investment. Development has to be aspired on all fronts and we are on track, he added.

Goyal thanked Prime Minister Narendra Modi and Home Minister Shri Amit Shah for their focus and commitment towards the development of UT of Jammu & Kashmir. Recent industrial package of 28,400 Crore rupees is a testimony towards ensured development.

Terming it a momentous occasion for the UT of Jammu and Kashmir, Jammu and Kashmir Lieutenant Governor Shri Manoj Sinha said that this development journey will help the Union Territory to scale new heights in Industrialization and sustainable growth.

Union Minister for Commerce and Industry Piyush Goyal highlighted the significance of the day and said that with the signing of the MoU with Dubai Government, the world has started to recognize the pace with which Jammu and Kashmir is traversing on the development bandwagon.

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India is working towards bridging digital divide in Africa: V. Muraleedharan

‘India has adopted an approach that facilitates development of human capital in the continent with the larger objective of harnessing socio-economic growth,’ said V. Muraleedharan, Minister of State for External Affairs & Parliamentary Affairs, Government of India

Tarun Nangia

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‘India is working towards bridging digital divide in Africa and has adopted an approach that facilitates development of human capital in the continent with the larger objective of harnessing socio-economic growth”, mentioned V Muraleedharan, Hon’ble Minister of State for External Affairs & Parliamentary Affairs, Government of India while addressing the Inaugural Session at the 2nd edition of the India Africa Higher Education and Skill Development Summit organised by Confederation of Indian Industry in partnership with Ministry of External Affairs, Government of India today.

Muraleedharan elucidated that India is best positioned to partner Africa as we can offer affordable and high-quality education and skill development opportunities and make the young population employable and allow them to participate in growing economies of African countries. Elucidating on the strong Indo-African partnership in the domain of higher education and skill development, the Minister stated that capacity building and providing higher education opportunities with for the socio-economic development of our partner nations is a major element of our Foreign Policy.

India has long standing ties in education with Africa and over 2000 Indian faculty members have been involved in teaching and research activities of Ethiopian nations. Further, defence academies and colleges are being set up in nations like Nigeria and Tanzania. With a view to promote students from African nations to study in India, several initiatives have been undertaken like the Study in INDIA, ITEC programmes, Sir C V Raman Scholarship, collaboration of Department of Science & Technology with the World Bank to develop centres of excellence in African countries and the launch of e-VidyaBharti and e-ArogyaBharti Project, among others.

Dr Sarah Ruto, Chief Administrative Secretary, Ministry of Education Republic of Kenya, emphasised that Kenya is working towards the implementation of the 2030 Agenda of Sustainable Development Goals with a special focus on select education-based SDG Goals. She mentioned that Kenya has a competency-based curriculum to meet the rising demands for tertiary education and there is focus on alumni network funding as well as partnerships to promote skill development.

Buti Kgwaridi Manamela, Deputy Minister of Higher Education, Science & Innovation, Government of Republic of South Africa informed that a bilateral cooperation treaty is being negotiated in education for exchange of students as well as to share best practices. He added that forums like IBSA and BRICS have also provided opportunities to address the developmental needs of the nations.

Dame Diop, Minister of Employment, Vocational Training, Apprenticeship and Inclusion, Government of Republic of Senegal informed that the Plan for an Emerging Senegal (PES) which harmonises national policies particularly for human capital development and vocational training is a major step towards promoting employability. The Minister commended India for committing 130 million Rupees to Senegal to create science and technology institutes.

Dr Douglas Letsholathebe, Minister of Tertiary Education, Research, Science and Technology, Government of Republic of Botswana highlighted that the commonality of English language based higher education system offers scope for greater cooperation between the countries. The Minister stated that the Botswana Vision 2036 aims at transformation from a resource-based to an all-ingredient knowledge-based economy focussing on education, training, and human resource development systems. Expressing the commitment to the youth, Botswana has joined the Generation Unlimited initiative as a leader thereby, playing a crucial role in forging multisector partnerships across geographies to provide greater access to skilling and livelihood opportunities.

S Kuppuswamy, Co-Chair, CII Africa Committee & Advisor-Group Finance & Special Projects, Shapoorji Pallonji Group, said that the Indo-African collaboration has strengthened in the post pandemic era as the nations are collectively focusing on new age learning models and enhancing the role of technology in education. Emphasizing on the strong multilateral cooperation with Africa, it was highlighted that one of the most popular programs, the Study in India commonly called EDCIL offered by Ministry of Education offers around 900 scholarships to African students to study in India and Indian universities are also investing in promoting their services to the African community.

The two day Summit organised in partnership with Ministry of External Affairs, Government of India will focus on Online education, Study in India and Skills Development programmes. Over 6 ministers from Africa and India participated at the Summit and event saw online registration of 600 delegates from India and Africa.

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Policy & Politics

INDEX NUMBERS OF WHOLESALE PRICE IN INDIA FOR THE MONTH OF SEPTEMBER, 2021(BASE YEAR: 2011-12)

Tarun Nangia

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Note: P: Provisional, F: Final, * Annual rate of WPI inflation calculated over the corresponding month of previous year

The month over month change in WPI index for the month of September, 2021 (as compared to August, 2021) was 0.07 %. The monthly change in WPI index for last six-month is summarized below:

Annex-I

All India Wholesale Price Indices and Rates of Inflation (Base Year: 2011-12=100) for September, 2021

Annex-II

Note: * = Provisional, Mf/o = Manufacture of

Note: * = Provisional, Mf/o = Manufacture of

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