Last month, while sifting through the pages of “Junes” on SpicyIP, I pored over some old posts to see what has or has not changed in these years. Whether it’s P.H. Kurian’s trail of transparency, discussions about authors and copyright societies, updates on the international IP landscape, or the hustle and bustle of the domestic IP domain, including Statements of Patent (Non-)Working, the journey through Junes had its own jilts and joys. Now, once more, guided by Sankofa sense, I set out to sift through the SpicyIP pages, starting from 2005 and journeying through the “Julys” of years past, to see what we have got or lost over the years. (Sidenote – if you want to see SpicyIP posts month-wise and throw some old-gold-type posts for discussion, you may use this link https://spicyip.com/search/month). See SpicyIP Flashbacks for the introduction and the first post of the series.
With that, here we go:
The South Asian Basmati Brawls: Besides the adrenaline-pumping India-Pakistan cricket clashes, there exists one more kind of India-Pakistan battle that has made headlines – IPRs fights over Basmati. The issue has simmered on SpicyIP pages since 2007. In July 2007, Aysha Shaukat’s post first discussed how Pakistan was planning to take legal action against India for patenting ‘Super Basmati’. However, it later turned out that there was no patent application for the Super Basmati, but rather, as Aysha said, it was a “proverbial case of the media conflating IP terms”. (Also see the politics and other problems around Basmati inside Pakistan and the story When Tilda had to rescue ‘Basmati’ from a Thai corporation). Besides Pakistan, America has been an active participant in this Basmati bagarre. Prashant’s potent post on this topic titled “The Uneasy Alliance between Basmati & IP” discusses the issue since the RiceTec case and the politics around IP protection. Moreover, the GI registration of Basmati has been a big issue in itself for which the Agricultural and Processed Food Products Export Development Authority (APEDA) was empowered to register it. Though it’s a different story that even RTIs couldn’t penetrate its secrets of how much it legal expenses it incurred on Basmati, not once but twice! After much coaxing, it was later found that APEDA incurred huge legal expenses on Basmati and litigations were pending worldwide (as of that post). Those interested should read An insider’s account of the Basmati row which lucidly expatiates the issue and discusses the dispute between APEDA and the State of MP on whether the Basmati GI should even cover MP. Prashant then dished out some interesting details on the issue and brought the backside story to the fore. Interestingly, while the India-Pakistan GI issue is still on, Nepal has also filed an opposition against India (non-SpicyIP article for those interested in more on Nepal’s take). Only the future will tell us how this dispute will unfurl and in whose favor.
Whither Indian “Bayh Dole” Bill?: In July 2008, Prof Basheer published the text of the Indian “Bayh Dole” Bill, officially named Public Funded Research and Development (Protection, Utilisation and Regulation of Intellectual Property) Bill, 2007 (PUPFIP) though it was rarely referred to as that! Although supposedly a well-intentioned bill that sought to commercialize university research, the bill was a cause of consternation and the issue was extensively covered on the blog, with even a conference organized for discussing it. The main question that surrounded the bill, as Prof. Basheer asked then, was “Does it make sense for India to blindly import such a bill, given that India has a different set of circumstances (in terms of the nature of university research, relationship with industry, cultural specificities) than what prevailed in the US in the ’80s?” Several notable concerns about the bill were highlighted by Prof. Basheer in his post titled “Exporting Bayh Dole To India: Whither Transparency?.” (See also here). However, besides its problematic content, the lack of public consultation in the bill was equally bothersome – something that has long infested Indian law and policymaking. In 2010, the amended version of the bill was presented by the Parliamentary committee (see generally, Indian “Bayh Dole” Amendments: A Historic Moment in Indian IP Policy Making). At the same time, South Africa also rolled a similar “Bayh Dole” ball. However, in a tale of legislative fortune, India’s Bayh Dole Bill was withdrawn in 2014. In this context, Swaraj and Anupriya also discussed the issue of IP Ownership in Publicly Funded Research in 2021 highlighting various departmental policies and guidelines governing public-funded R&D and the issues therein. Prashant and Saranya, while highlighting the need for “march-in” rights (i.e. rights that allow the government to exploit the funded research and innovation for public emergency), noted that over the last decade, India has spent over Rs. 1,00,000 crores on scientific research with no transparency as to this spending. Thus, they called for reviving discussions around an Indian ‘Bayh Dole’ bill. In a similar context, Shivam Kaushik also wrote a critique of CIPAM’s Draft Model Guidelines on Implementation of IPR Policy for Academic Institutions whose task was to set in an IP Policy for academic/ research institutions at an all-India level. Previously, in 2012, Prashant penned another interesting short post on National Science Day discussing: The good and bad of Indian policy initiatives for scientific research and innovation. While uncertainties around public funds abound, what is certainly doable is the pursuit of relentless questioning, striving for transparency and accountability in the usage of public funding.
(Separately, those interested in this topic should check this post called Indian “Bayh Dole” Problems: Some Resource; particularly check the CIS piece.)
Where is the National Biotechnology Regulatory Authority (NBRA) Bill? – In July 2008, the news of the Department of Biotechnology, Ministry of Science & Technology, Government of India announcing a draft National Biotechnology Regulatory Authority Bill (NBRA) was shared by Prashant. As he noted, the Bill empowered the regulator to regulate the research, manufacture, import, and marketing of genetically modified organisms. Notably, it came at a time when the entire process relating to the regulation of genetically modified organisms was largely ad-hoc. And the NBRA was to solve this issue by providing a single window clearance mechanism. In the same month, Prof. Basheer also shared the letter of Dr. Sivaramjani Thambisetti to the Ministry in this regard, underscoring the resuscitation of the “morality” bar to patenting and proposing that NBRA be permitted to assume an active role on the “patenting” front. The issue again came to the fore when the BT Brinjal fiasco happened. Meanwhile, the Controller General of Patents published guidelines for the examination of ‘biotechnology patents’ in 2012 whose feedback was also made public by the office, and the final version was published in 2013. As per the PRS India website, the Biotechnology Regulatory Authority of India (BRAI) Bill, 2013 was introduced in the Lok Sabha in April 2013 and was referred to the Parliament Standing Committee on Science & Technology, Environment & Forests. The committee was to submit the report by June 2014. However, it is unclear if this was done. Nevertheless, the bill eventually lapsed.
(See Legislative Brief The Biotechnology Regulatory Authority of India Bill, 2013)
Internet Copyright Treaties for India: In July 2008, Aysha Shaukat wrote a post about the Internet Copyright Treaties namely the WCT and WPPT, which India was not a part of at that time. However, even then India had already initiated proactive measures to safeguard copyright materials in the digital domain. India signed these treaties in 2018, but the Copyright Amendment 2012 had already made several changes in the Act to make it treaty compliant. One such notable change was the introduction of Technological Protection Measures provisions, and Rights Management Information. Interestingly, signing these treaties was a step towards fulfilling the objectives of the National IPR Policy, 2016. One of the most notable aspects of these treaties (and 2012 Copyright Amendment) was DRM/TPM, which created a para-copyright by enabling copyright holders to control access to the copyrighted material. Tellingly, given its unfriendly connection with access to knowledge, there has even come an International Day Against Digital Rights Management! Regardless of the problematic nature of this para copyright, it won’t be a gaffe to say that India’s DRM provisions are somewhat unique and can be helpful to stand against the calls of completely controlling knowledge through copyright. For those interested in these treaties especially in their making, see the Open Access Book on Negotiating History of the WCT and WPPT by Dr. R.V.V. Ayyar and Prashant’s reflection on the same.
What’s in the GI Registration numbers?: In 2008, Prof. Basheer penned a post highlighting an instance of gross misreporting which showed the number of registered GIs to be 9 in five years since the enactment of the Act in 2003. Contrary to the above claims, SpicyIP’s independent research revealed that the number of registered GIs was in fact 82. Fast forward 1.5 decades, and the number has now reached an impressive 478 GI registrations as per the DPIIT website!
Yet, these figures raise questions that continue to linger. What lies behind these numbers, and what stories do they truly tell? Do they really serve the purpose of registration under the GI Act? Where and how can we seek improvement? Over the years, these questions have been broached and discussed on the blog, For e.g. in a guest post, Geographical Indications in India and Beyond Latha Nair raised some interesting points recommending studying “the time-tested models of GI protection found in certain European countries such as France.” Similarly, Jupi Gogoi in her post “The Need to Look Beyond Wines and Spirits: GI Law in India and the Woes of Muga Silk” highlighted a serious lack of strategy after registration and recommended a need to extend additional protection to products in India beyond wines and spirits. Prashant’s intriguing data-based 2012 post “The ‘Nationalization’ of Geographical Indications in India” also raised some serious questions about various entities registering G.I.s in India. It can be that even after a decade of Prashant’s post, his suggestion of doing serious research into the quality of G.I. registrations and checking if the artists and farmers get their due by the registering entities holds relevance.
India, Myths, and its Lost Legends: India’s contribution to science and innovation has always been enticing to narrate and hear about. And we have often highlighted this on the blog. For instance, Prof. Basheer’s 2007 post “Ancient India and Maths” underscoring India’s contribution to Mathematics is still a riveting read (especially reading Prof. C.K. Raju’s thoughts in the comments section). Similarly, Prof Basheer’s post “JC Bose, Wireless Technology And Patent” on Jagadish Chandra Bose who was known for his antipathy towards patents is well known but still is credited with being the first Indian to ever have filed a patent, is a delightful read even today. Keeping this culture kindled in our IP Reveries Series, we appraised this issue while interrogating the I – ‘Intelligence’ in IPR and compiled a short note on “Invisibilised Inventors and Hidden Geniuses” while broaching some questions for further discussion.
I conclude this Julys’ sift here only to begin a new sift – in the SpicyIP’s Pages of “Augusts”. If you have any posts or events that require attention, feel free to drop them in the comments. Until then, see you next month!
Thanks to Swaraj Barooah for his input on the draft.