[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.
Title: Create, Copy, Disrupt: India's Intellectual Property Dilemmas
Hardcover: 400 pages
Publisher: OUP India (23 December 2016)
- Prashant Reddy & Sumathi Chandrashekharan