Guest Post: For whom is the Indian IPR Regime?

Aparajita Lath brings us her third submission to our SpicyIP Fellowship applicant series. Usually, when we're discussing 'access' and IP, we're referring to diffusion of innovation. In this post though, she points out that for most of our country, accessing the reigns of this system as an inventor is problematic as well.

For who is the Indian Intellectual Property Right Regime?

“I went through thirty-five stages. I began with the Queen upon the Throne. I ended with the Deputy Chaff-wax […..] Is it reasonable to make a man feel as if, in inventing an ingenious improvement meant to do good, he had done something wrong? How else can a man feel, when he is met by such difficulties at every turn? All inventors taking out a Patent MUST feel so. And look at the expense. How hard on me, and how hard on the country if there’s any merit in me, to put me to all the expense before I can move a finger! Make the addition yourself, and it’ll come to ninety-six pound, seven and eight pence. No more, and no less.”[1]

This was a story of a poor but ingenious man, John, who had spent around twenty years in completing an ‘invention’. He was also knowledgeable and aware of the law, as he knew that he could apply for a patent to protect his invention. He was determined to get his invention patented but little did he know what was in store for him. 

This fictitious example may not be too removed from the present reality of India. The Intellectual Property Right regime in place today seeks to serve the interests of only a few who have the resources, time and money to claim and fight intellectual property right battles. 

A large part of the Indian population lives below the poverty line[2] and an even larger part, though living above the poverty line, suffer from capability deprivations such a lack of adequate food, health care, education and shelter.[3] To these persons, intellectual property rights may seem worthless and to them gaining access to actual property may be of primary importance. 

Of the remaining population, most belong to the middle class. Of these, many are unaware of the existence of intellectual property rights (patents, copyrights etc.)[4], even if they do know that such rights exist, they may not be capable of understanding these rights. Even if they do understand these rights, they may not have the resources to actually patent their inventions (in case of patents) or enforce their intellectual property rights through litigation. 

Difficulty in understanding the laws relating to intellectual property rights arise because most of the terms used in these enactments have been interpreted to mean something quite different from what they ordinarily should mean. For example, as David Vaver points out - under the Copyright Act- in the phrase ‘original literary work’ the word “original” doesn’t mean “novel” (although that’s one of its ordinary meanings) but in ‘copyright jargon’, it just means that the item isn’t copied and some mental skill or judgment went into its composition.[5] Nor does the word “literary” mean “literary” in the ordinary sense of the word, as it even includes a computer program which many may not be able to read![6]

Some may argue that this sort of complexity in law may not be peculiar only to the intellectual property right laws, however, it is evident that this set of law is one of the most technical both in relation to law and subject matter.[7] Some experts are of the view that, intellectual property right laws are more ‘taxing’ than tax statutes.[8]

Not only is the law difficult to understand but also expensive. The process, especially in cases of patents, of drafting and filing a patent application needs a qualified patent attorney whose minimum fees are Rs. 20,000. Moreover, expenses do not arise solely at the stage of procuring a patent, but also in enforcing the patent or any other intellectual property right. Unlike other property, since intellectual property is non excludable and non rival,[9] real protection and possession arises only when the owner of such property has the capacity to prohibit others from ‘copying’ his work/invention. A man like John, though ingenious, may not understand the law, may not have the money and expertise to file patent applications and above all may not have the time or resources to exclude others from using his creation. The opportunity cost of foregoing his daily work for fighting an intellectual property right suit, may cost him and his family their livelihood! 

Due to these hurdles, a limited and preliminary study based on the Patent Office Journal of 10/2/2012 (taken as an example),[10] indicates that most of the patent holders are big companies with big pockets. This issue of the journal, shows us that the out of the 47 patents granted by the Delhi Patent Office, majority of the patentees are big companies. It was seen that L.G. Electronics had 2 patents out of the 47, Thomas Licensing S.A. held 4, Bharat Heavy Electrical Held 2, Exxonmobil Chemical Patents Inc., held 3, Research in Motion Limited held 3 and the others, such as, Samsung, AIIMS, Saint-Gobain, Fujiflims, Honeywell, Bayer, BP Chemicals Limite A British Company, The Secretary, Ministry Of Information, Technology, The Trustees Of Princeton University, PPG Industries Ohio,Inc. and Honda Motors held one patent each. This list shows us that close to 30 out of the 47 patents issued were to big and well known companies. 

Given the complicated, time consuming and expensive process of procuring and enforcing intellectual property rights and given the short analysis showing that most patent holders are big companies, one stops to think as to who the Indian intellectual property right regime seeks to protect- creative geniuses or rich and resource-filled companies? 

[1] Charles Dickens, A poor man’s tale of a patent, household words II (70) 1850: 1, in David Vaver ed., Intellectual Property Right, Critical Concepts in Law, vol. III, 2006.
[2] See IBN Live, It's official: 37 pc live below poverty line, April, 2010 available at http://ibnlive.in.com/news/its-official-37-pc-live-below-poverty-line/113522-3.html (this report tells us that 37% of the Indian population lives below the poverty line, 2010 estimates); In 2010, World Bank stated, 32.7% of the total Indian people fall below the international poverty line of US$ 1.25 per day (PPP) while 68.7% live on less than US$ 2 per day.
[3] See Business Standard, India 134th in Global Human Development, 3 November 2011, available at http://www.business-standard.com/india/news/india-134th-in-global-human-development-report/454388/ (the human development index assess development on three parameters- health, education and income, thus showing that the Indian population is still largely under nourished, under educated and poor).
[4] See R Saha (Adviser, Department of Science and Technology and Director, Patent Facilitating Centre, New Delhi), Management of Intellectual Property Rights in India, p. 22, available at http://www.pfc.org.in/workshop/workshop.pdf; See also Deccan Herald, Awareness on Intellectual Property Rights need of the day, January 23, 2012, available at http://www.deccanherald.com/content/221593/F.
[5] David Vaver, Does the Public Understand Intellectual Property Law? Do Lawyers? (Univ. of Oxford, Research Paper, Working Paper No 23/2006), p. 7.
[6] Id.
[7] See G. F. Henderson, Intellectual Property: Litigation, Legislation & Education (1991), p. 17.
[8] Id.
[9] See generally Eric E. Johnson, Intellectual Property and the Incentive Fallacy, 39 Flord. St. Univ. L. Rev. (2012) p. 628-29.
[10] Official Journal of the Patent Office, Issue 06/2012, Date 10/2/2012, available at http://www.ipindia.nic.in/ipr/patent/journal_archieve/journal_2012/pat_arch_022012/official_journal_10022012_part_i.pdf and http://www.ipindia.nic.in/ipr/patent/journal_archieve/journal_2012/pat_arch_022012/official_journal_10022012_part_ii(Design).pdf.