India continues to feature in the ‘Priority Watch List’ of the United States Trade Representative (USTR) for perceived inadequacies in Intellectual Property (IP) rights protection and enforcement. This categorisation is based on the Annual Special 301 Report formulated by the USTR.
Key Concerns Highlighted by the USTR
The report draws attention to several areas where India’s IP protection and enforcement practices are found wanting:
1. Copyright laws: According to the USTR, these laws do not adequately incentivise the creation and commercialisation of content.
2. Trade secrets framework: The USTR feels that the current framework in India is outdated.
3. Pharmaceutical manufacturing licenses: The transparency of information on state-issued pharmaceutical manufacturing licenses in India is allegedly restricted.
4. Rejecting pharmaceutical patents: The USTR argues that India applies restrictive patentability criteria which lead to the rejection of pharmaceutical patents.
5. Fair competition: India is said to lack an effective system for protecting against unfair practices to obtain marketing approval for pharmaceuticals and certain agricultural chemical products.
6. High customs duties: India is cited as maintaining high customs duties on IP-intensive products, including medical devices, pharmaceuticals, ICT products, solar energy equipment, and capital goods.
7. Counterfeit goods: As per the Organization of Economic Development and Cooperation (OECD) 2019 data, India ranks among the top five source countries for fake goods.
Proposed Changes to Copyright Laws
The USTR also expressed concern over the Indian government’s draft Copyright Amendment Rules 2019. If implemented, they argue that it would have detrimental effects on internet-content rights holders, as the proposed rules expand the scope of compulsory licensing from radio and television broadcasting to online broadcasting.
Issues around Trademarks
The report raised issues over counterfeiting levels of trademarks and the delays in obtaining trademarks due to a lack of examination quality. The USTR strongly encouraged India to join the Singapore Treaty on the Law of Trademarks, which standardises trademark registration.
Noteworthy Progress
Despite these concerns, the USTR acknowledged that India has made “meaningful progress” in enhancing IP protection and enforcement in some areas in 2019. For instance, India acceded to the World Intellectual Property Organization Internet Treaties and the Nice Agreement, which establish classification of goods and services for registering trademarks and service marks (the Nice Classification).
Lapses in Online IP Enforcement
Online IP enforcement in India has seen some improvement. However, this progress is hampered by various factors such as weak enforcement by courts and police, unfamiliarity with investigative techniques, and the absence of a centralised IP enforcement agency.
About the Special 301 Report
The Special 301 Report is an annual publication by the USTR that identifies trading partners not adequately or effectively protecting and enforcing Intellectual Property rights. It also highlights those denying market access to U.S. innovators and creators who rely on the protection of their IP rights.
Priority Watch List and Watch List
Trading partners that currently present the most significant concerns regarding IP rights are placed on the Priority Watch List or the Watch List. The Special 301 Report identified 33 countries for these lists including Algeria, Argentina, Chile, China, India, Indonesia, Russia, Saudi Arabia, Ukraine, and Venezuela on the Priority Watch List. The countries on the Watch List include Barbados, Bolivia, Brazil, Canada, Colombia, Dominican Republic, Ecuador, Egypt, Guatemala, Kuwait, Lebanon, Mexico, Pakistan, Paraguay, Peru, Romania, Thailand, Trinidad & Tobago, Turkey, Turkmenistan, the United Arab Emirates, Uzbekistan, and Vietnam.
