A New Book on India’s Intellectual Property Dilemmas

[Guest post by Prashant Reddy (Research Fellow, School of Law, Singapore
Management University) and Sumathi Chandrashekharan
(Senior Resident Fellow, Vidhi Centre for Legal Policy) on their new book]
About four years ago, in a game-changing case, the
pharmaceutical giant Novartis AG, lost the rights to their patent in India
covering one of their best-known chemotherapy drugs, Gleevec, after a
decision of a two-judge Bench of the Supreme Court of India. The
decision hinged on an interpretation of Section 3(d) of the Indian Patents Act,
which governed the patentability of new forms or uses of known drugs.
In our new book titled “Create Copy Disrupt: India’s Intellectual Property
Dilemmas
“, we write
about, among other things, the build-up to the drafting of Section 3(d),
through the lens of history and politics. Although the provision came into its
own only after India’s signing of the Agreement on Trade Related Aspects of
Intellectual Property (TRIPS), the story really began in early post-independent
India. The 1950s and 1960s were incredibly exciting times for Indian lawmaking,
not just because it was breaking away from colonial legal legacies, in the hope
of defining India’s development trajectory afresh, but also because it was the
battleground between opposing ideologies – with the Congress and communist
parties on one side of the aisle, and the Swatantra Party on the other side,
staunchly advocating for free markets.
In intellectual property (IP) law, the outcome of this battle
took the shape of a patent law designed to serve the domestic industry,
operating in a closed market, insulated from competition from the West. Stalwarts
of the Swatantra Party like Minoo Masani and Dahyabhai Patel staunchly opposed
these moves, batting instead for more IP protection with the aim of attracting
technology transfer to India. However, the fact of the matter is that a law
supported by the socialists and communists eventually gave birth to one of the
most successful capitalist industries in the Indian manufacturing sector. In
the 1980s and 1990s, the compulsions of becoming a part of the international
trading community forced India to sign TRIPS. Consequently, our patent law
turned on its head, again, in the backdrop of high-decibel political debate,
culminating in the Novartis case, among other things. The politics and history
of this story, starting from 1948 and concluding with the Supreme Court’s
decision in the Novartis case, involves not only Indians but also several
foreign players. Understanding this history is crucial to understanding the
future of Indian approach to pharmaceutical policy. In order to keep things
interesting, we attempt to tell this story through a narrative that relies on
parliamentary debates, standing committee depositions and archival research
from that era. 
**
In this book we also cover the history and politics of Indian
copyright law post-independence and the manner in which these changes affected
all creative industries like the movies, music, book publishing and internet
intermediaries.
In a multi-crore rupee film industry, when actors and
producers were making fortunes, many entertainers were left behind. Lyricists
and composers, for instance, who made many a memorable melody, were scrounging
for their share of the profits from the success of soundtracks, because the
copyrights in the industry were skewed against their favour. The run up to the
2012 amendments to the Copyright Act saw a parliamentary revolution led by the
poet-parliamentarian Javed Akhtar which ensured that the new law tilted the law
in favour of the creators in the industry. In this book, we uncover the murky
goings-on behind the scenes of the Indian Performing Right Society (IPRS),
which is responsible for collecting and distributing royalties pertaining to
film music, and detail how Akhtar fought a lone battle against the powerful film
industry, and how the Parliament was won.
One of the other important copyright stories that we examine
is the safe harbour exception in Indian copyright law that shields Internet
intermediaries from claims of copyright infringement. The absence of a safe
harbour exception had in the past led to promising ventures like Guruji.com
being shut down in the early days of startup India because T-Series got the
founders arrested for copyright infringement.
**
Before we end this post, we would like to mention that this
book is not written in a typical academic format. The idea rather was to reach
out to a wider audience of readers who are not specialists in intellectual
property but are interested in knowing more about India’s IP regime.
Book details
Title: Create, Copy, Disrupt: India’s Intellectual Property
Dilemmas
Hardcover: 400 pages
Publisher: OUP India (23 December 2016)
Language: English
ISBN-10: 0199470669
ISBN-13: 978-0199470662
  
– Prashant Reddy & Sumathi Chandrashekharan

About the author

Umakanth Varottil

Umakanth Varottil is an Associate Professor at the Faculty of Law, National University of Singapore. He specializes in corporate law and governance, mergers and acquisitions and cross-border investments. Prior to his foray into academia, Umakanth was a partner at a pre-eminent law firm in India.

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