Intellectual property rights (IPR) have always been a thorny issue for India, be it in terms of enforcing patent protection against piracy or preventing its own age-old processes and products from being usurped as modern-day inventions or discoveries. Francis Gurray, director general of the World Intellectual Property Organization (Wipo), on his first visit to the country where he met senior civil servants and called on the Prime Minister (PM), discusses his plans to work with India and its intellectual property system. Edited excerpts:
IP facilitator: Wipo’s Gurray says intellectual property can be used to incentivize innovation in green technology. Rajkumar / Mint
What is the aim of your visit?
The objective is to discuss the agenda at Wipo, what’s happening at the organization, what are the issues and the various areas in which we cooperate directly, for instance traditional knowledge or the exchange of patent data for databases, and in that capacity I have had the opportunity of meeting the PM. So it’s an opportunity to discuss all the current issues and to arrive at an understanding of what are the concerns in particular to India and where India thinks the organization should be going.
Recently, our member-states reached a decision, which was a major step forward for us to start text-based negotiations to establish an international legal instrument that will ensure effective protection to traditional knowledge (TK).
Since India already has its Traditional Knowledge Digital Library (TKDL), how is Wipo looking to leverage that?
It is a very important and fine product that is being produced by the Council of Scientific and Industrial Research. It is a product that can make available to patent offices around the world on a confidential basis...detail of traditional knowledge to assist in preventing the granting of patents over that traditional knowledge by unauthorized parties. It is also a basis on which to establish potential collaborative arrangements with private sector or industry to actually use the traditional knowledge in practice. I hope to also collaborate with India to lead a process of establishing similar TKDLs using its approach in other developing countries that wish to use this methodology.
What is the legal framework you are planning for TK?
You have the international architecture—what you must do, can’t do and so on. It would mean probably (it has to be negotiated)…, but typically it would be establishing an obligation on part of countries to provide protection against misappropriation of traditional knowledge. So it would have to be made an offence to misappropriate traditional knowledge and countries would have to agree that they would do that. Then we would define misappropriation and traditional knowledge, as also the acts of misappropriation and so on. In December this committee will meet and commence the negotiations and in principle they have to come up with some form of result in two years.
What are the intellectual property (IP) challenges India faces?
In India we see, of course, an extremely long and ancient tradition of knowledge economy. The knowledge basis of civilization stretches back thousands of years. So the purpose of the IP system is really how can you make that knowledge productively used within the economy. That is the ultimate objective. Every sign that innovation and creativity in India are alive and thriving, and the IP system can contribute in a very positive way to the expansion of innovation in India.
India is faced with the debate of incremental innovation. What is Wipo’s stand on this?
We are very clear that it depends on what you mean by the increment. Some increments are trivial and do not deserve a property right. To deserve a property right you need to have something that is new and that is not obvious to someone that’s used to practicing in that area. The problem is not so much the standards because they are reasonable standards…it’s the application of the standards. And the greatest difficulties are in the areas of newest technology. So, typically when a new area of technology comes along, it’s more the private sector that develops the new technology and the public sector sees the technology for the first time and their capacity to evaluate what is actually new and not obvious is limited until they get experience in that field. And that we saw in the case of biotechnology, in the case of gene sequences and diagnostic kits and so on.
The basic question that you raise is a very important systemic question for us because we should not be granting property rights over trivial inventions.
How real is the concern that in the name of IPR, prices of certain products are artificially kept high, creating trade barriers and encouraging use of pirated products?
We have an economic system, which by and large is based on the catalyst…the free market model. The free market model is based on economic agents acting in their own self-interest in profit maximization. We have in certain forms of public sector, regulation of that self-interest to safeguard the public interest and one of those forms of regulation is competition control. Another is incentivizing different forms of behaviour. If as a consequence of property right that someone gives as an incentive to innovation, they are placed in an abusive position in the market then we should regulate them not through intellectual property law, but through competition law. And that is being done. For example, a court in the US has just made the decision in relation to the Google book project on the basis of competition law. So there are instruments to regulate. Most times IP does not give rise to a dominant market position, but where it does, we can regulate it.
What is the progress in implementing the development agenda that was announced in 2007?
It’s coming along. We have made good progress this year. The challenge now is to operationalize a good idea. So transform a good idea into reality and we are doing that through a series of projects. Three (projects) have already been approved and are under way, and another two are coming up for approval next week—one related to transfer of technology and another one related to making available technical information generated through the patent system. Development is a process that needs to be continuous.
Developing countries have raised this concern that IPR issues are coming in way of transfer of clean technology from the developed world. There is now a debate if this issue should be discussed at Copenhagen.
I think we need more empirical evidence from this because we need to know where this is happening. We need to incentivize innovation in green technology and IP can be useful in those areas. Are there property rights that are acting as obstacles…? I don’t know the evidence to that. Many of these technologies that can be useful for adaptation actually are off-patent and where they are on-patent, there are alternatives. In this sense, you remember the problem of access to medicines. There we did have an example with AIDS antiretrovirals. The problem was very clear. But can you tell me of an instance of copyright on green technology, which is an obstacle? Can someone say here is the problem and if we didn’t have that, we would be able to reduce carbon (emissions)?
So you don’t see any need for discussing that at Copenhagen?
Oh no, I think it should be discussed. I think one of the questions that need to be asked is also regardless of whether IP is a facilitator or an obstacle… I think it’s a facilitator… question is transfer of technology. There is no doubt that there needs to be a massive effort in ensuring that useful technologies are made available in developing countries. There are various proposals on how to do that and one is creating a global fund to finance this. How it’s going to happen I am not sure, but it has to be done.