Indo-US IPR problem

The U.S. Chamber of Commerce in its International Intellectual Property Index has placed India at 37th position out of 38 countries. This report comes at a time when the government is close to finalizing a National Intellectual Property policy to improve the IP regime, increase IP awareness and strengthen enforcement of rules.

The list is topped by the US, which is followed by the UK, Germany, France and Sweden. India’s peers in the BRICS grouping were all ranked ahead with Russia ranked 20th, China (22nd), South Africa (26th) and Brazil (29th). Venezuela occupies the last position in the index.

Main complaint is that Brazil, China, India, Indonesia, and Russia introduced or maintained policies that tie market access to sharing of IP and technology. Such forced-localization policies tend to undermine the overall innovation ecosystem and deter investment from foreign IP-intensive entities. U.S and allies want laws which protect intellectual property even when lack of market access in such innovations is against public interest.

India remains at the bottom of the Index for the fourth year in a row. The report notes that India’s score would have increased if the government had not suspended implementation of Final Guidelines for Computer Related Inventions (CRI). The report notes the following reasons for India’s low rank:

  • Patent protection in India remains outside of international best practices.
  • Indian law does not provide adequate enforcement mechanisms to effectively combat online piracy.
  • Among India’s key areas of weakness was the use of compulsory licensing (CL) for commercial and non-emergency situations, and the expanded use of CL being considered by the Indian government.
  • Another area of weakness was poor application and enforcement of civil remedies and criminal penalties.
  • The fact that India was not party to major international treaties, like the Trans-Pacific Partnership agreement, was also a consideration.

In the backdrop of these concerns India has been placed under ‘Priority watch list’ in USA. If India is put under ‘priority nations list’ then the US will impose trade sanctions on INDIA. But this is unlikely because India, so far, has not violated any of the clauses of TRIPS. That’s why the US has negotiated ‘Trans – Pacific/Atlantic’ trade partnerships, which are expected to be ‘WTO+’. It will include stringent provisions guarding intellectual property by diluting flexibilities allowed by current TRIPS agreement, among other things.



As said earlier, India’s IPR regime stands fully compliant to the Agreement on TRIPS. However, implementation of various laws has been lax. Patent or copyright infringement and piracy in India is not uncommon. It is also the fact that India has poor performance in R&D, where it accounts for a meagre 2.7% of global expenditure. Poor IPR protection regime plays some part in this. Government is about to launch a New IPR policy. It is expected that it will reassert its commitment to TRIPS and promise that measures like compulsory licence will be resorted to in rarest of rare cases. It will also consider the need and measures to ramp up implementation by building infrastructural and human resource capacities. It is likely to give a significant impetus to expansion of copyright and patent offices all over India.

As we have seen that various subject matters in IPR are dealt with by different departments and ministries, there needs to be some integration among these arms. This integration is a prerequisite for formulating an integral IPR policy and taking stand at various international forums. Having said this, legal setup in India nicely tries to balance Public rights with Private rights. This system provides adequate incentives for entrepreneurs to innovate. We just need strict implementation. This way we will able to make innovation a change agent of Indian economy