NLU, Jodhpur was established with a mission to promote interdisciplinary legal education and research. Equipped with faculties of science, policy science and management, NLU, Jodhpur presents a unique opportunity to conduct interdisciplinary legal research. The MHRD Chair is thus well positioned to carry out quality research in the law and policy of intellectual property.
The mainstream IP research in Indian law schools is largely confined to looking at IP law from a single dimensional perspective of ‘black letter’ law and text book study. While not undermining the importance statute based and case-law approach, IP research at NLU-Jodhpur is conducted with an aim to move beyond such standard notions of the role and importance of IP law in society. The approach is to re-examine the relationship of IP law with innovation, creativity and social change and to understanding its socio-economic implications in a developing country context. Increasingly, IP law faces numerous challenges due to its implications on access to medicines, access of knowledge and fair competition. Furthermore, with the global upward ratchet of IP norms through multilateral, plurilateral and bilateral trade and IP treaties, its implications on reductionist policy space of developing countries like India and least developed countries is under considerable challenge. With an aim to foster interdisciplinary research and to promote holistic understanding of IP issues, the Chair focuses on the following six key areas:
Areas of research:
- Theoretical and jurisprudential basis of IP law
- Property paradigm
- Constitutional law paradigm
- Human rights paradigm
- IP overlaps
- International IP Law and Policy
- India’s compliance with the TRIPS obligations and beyond
- WIPO negotiations at the SCP and SCCR
- IP chapters in Plurilateral, RTAs and Bilaterals- ACTA, EU-India FTA, TPA etc...
- International IP reforms
- IP law and access of medicines
- Patent law and policy in the area of pharmaceuticals and biotechnology
- Use of IP law limitations and exceptions to access patented knowledge
- Test data protection
- Relationship between IP and Competition law in the pharmaceutical sector
- IP enforcement and challenges to access to medicines
- Patent Law and Traditional Knowledge
- Copyright law and access to knowledge
- Limitations and exceptions- software protection
- Minimum mandatory fair use exceptions in copyright law
- Copyright law and private contracting
- Copyright, creativity and access in the digital context
- IP and Competition Law Interface
- IP and Competition Law- the property/exclusivity and contractual restraints
- IP and Competition Law- Pharmaceutical and biotechnology industries
- IP in technical standards- ICT and network industries
- Beyond IP
- IP issues in Public Funded R&D
- IP and social production- open source/ patent pools etc...
- Liability regimes
Recently completed/ongoing research (2011-12):
- A Critique of 'Report on Steps to Be Taken by Government of India in the Context of Data Protection Provisions of Article 39.3 of TRIPS Agreement' [Satwant Reddy Report] - With a Focus on Agrochemicals (completed July 2011)- submitted to and published by Indian Pharmaceutical Alliance.
The Department of Chemicals and Petrochemicals, Government of India was entrusted with the task of recommending appropriate steps to be taken in the context of Article 39.3 of the TRIPS Agreement and the report was submitted in May 2007, recommending that applications for approval of ‘me too’ agrochemical products should not be granted for a period of 3 years after the approval of a new product for the first time in India thereby allowing the first registrant for an agrochemical to enjoy a period of monopoly. However a similar period of exclusivity was not recommended for pharmaceuticals.
The recommendation for the 3 year period of exclusivity (now enhanced to 5 years by the Standing Committee on Agriculture) has been incorporated in The Pesticides Management Bill, 2008, which is currently pending consideration of Parliament. On the other side, the EU, which is currently negotiating a Free Trade Agreement with India, is reportedly pressing the case for extending similar exclusivity.
This critique is primarily an analysis of the reasoning in the Committee report from a legal perspective, particularly its interpretation of Article 39.3 of the TRIPS Agreement. As its recommendation of data exclusivity for agrochemicals has been acted upon through administrative instructions and is also pending consideration in a proposed legislation, this critique is largely restricted to this recommendation on agrochemicals, and does not deal with pharmaceuticals, except in the passing.
- ‘Review of Post-TRIPS Intellectual Property Regime for Pharmaceuticals in India’. Report prepared for the World Health Organisation (WHO-India) and CSIR-National institute of Science, Technology and Development (NISTADS) project on ‘Public health, Innovation and Intellectual Property in India’ (Completed: November, 2011).
Post WTO-TRIPS, India has brought several statutory changes in its domestic IP laws. As a consequence legislative, judicial and administrative mechanisms have been developed to facilitate IP protection and enforcement. The judiciary has also been quite proactive in guiding the course of law making and to fill in the gaps. Administrative mechanisms/institutions like the Intellectual Property offices and the Intellectual Property Appellate Board have been geared up to face new challenges. The paper seeks to examine these changes in the context of legislative, judicial and administrative/institutional norms and standards that have/are been developed within the Indian legal framework. Such developments have been examined in the light of international intellectual property norms to which India has committed. This is in order to understand the constraints or flexibilities available of Indian authorities and to crease out the use of those flexibilities or constraints faced in IP law making in the context of pharmaceutical sector in India. The scope of this paper is limited to examining the legal issues and certain developments that have a legal dimension. The report is written with some modest objectives. It does not exhort to present all issues concerning the pharmaceutical policy and the access to medicines situation. The report is primarily non-empirical, but relies on secondary economic evidence to analyse the legal problems examined herein. The study is undertaken at the following levels of inquiry:
- Conceptual problems in IP and challenges of innovation and access- the policy levers within the IP framework
- International intellectual property and challenges to developing countries- the changing international IP policy context (TRIPS, FTAs/RTAs and Bilaterals) and how it has influenced Indian law and policy making for pharmaceuticals
- Domestic standards of IP protection for the pharmaceutical sector emphasizing on unilateral expansionist IP rules and reductionist policy space in spite of flexibilities available in international IP law. It deciphers the domestic provisions and evaluates India's domestic law in the light of TRIPS Agreement by evaluating the statutory, administrative and judicial responses. However, it is not necessarily a TRIPS compatibility review.
- Laws and other regulatory mechanisms at place that operate outside the statutory scope of IP law (largely issues concerning abuse of IP, interactions with competition law in the market in the light of IP holder’s pricing and non-pricing practices). Other forms on alternative IP related developments like the IP issues Public funded Pharmaceutical R&D have been examined.
- ‘The Anti-Counterfeiting Trade Agreement in the backdrop of RTAs and TRIPS Agreement: Implications for Developing Countries’- Study to be submitted to the Centre for WTO Studies, Indian Institute of Foreign Trade, New Delhi (Expected: December-2011). The study is co-authored by Mr. Manu Sanan, Advocate, New Delhi.
This study aims to classify and catalogue the growing convergence in the field in International IP enforcement norm setting through the recently concluded Anti-Counterfeiting Trade Agreement (ACTA) and its contrasting effect in the light of IP enforcement commitments of developing countries with the TRIPS Agreement. The study is designed to serve a utilitarian purpose and facilitate a quick and easy access to IP enforcement measures in various RTA`s which in the least represent a point deviance from standard TRIPS provisions. As the study is comparative – it is divided into three major sections. The first section is a comparative catalogue of the TRIPS vis a vis the Anti-Counterfeiting Trade Agreement (ACTA). The second section is a comparative catalogue of TRIPS, WPPT and WCT vis a vis the relevant north-south RTA’s. The third section is a comparative catalogue of the ACTA vis a vis the IP enforcement chapters in the North-South FTA’s signed between developed and developing countries. The method of the comparative analysis is based on the following assumptions and premises, making it easier to follow:
- The TRIPS Agreement forms the base meridian upon which other Agreements are to be classified.
- Only the binding language of the various Agreements can be considered for comparison – exhortatory and non binding language has thus been excluded from comparison.
- ACTA is primarily an enforcement instrument – it does not add to the forms of IP – only adds to the manner of protection and hence is comparable to the enforcement envisaged under TRIPS. Thus, ACTA adds to vertical protection of IP.
- RTA’s on the other hand, usually expand on the forms of IP, the term of protection and add substantively to horizontal protection afforded to IP by broadening the width of IP. Hence RTA’s are comparable to the substantive protection granted under the TRIPS to the various forms of IP and not to the vertical protection of the ACTA.
Overall, the study aims to provide a nuanced legal analysis of the recently concluded ACTA and to examine the challenges to the law and policy of IP enforcement in developing countries.
- Analysis of fair-dealing provisions for computer programs in India (Expected- January 2012):
The paper primarily presents a legal analysis of Section 52(1) (aa), (ab), (ac) and (ad) of the Copyright Act, 1957 concerning fair use provisions for copyright protect software in India in the light of implications for competition in software markets. The object of this paper is to examine the provisions concerning fair dealing of computer programs under the Indian Copyright Act, 1957, and to critically evaluate its nature and scope. The Copyright Act, 1957 provides for some exemplary provisions on non-transformative and transformative fair use acts as defence to copyright infringement in software. It specifically provides for a scheme of reverse engineering for interoperability and program analysis as constituting fair use. The inclusion of such acts within the scheme of fair use connotes some hybrid form of fair dealing provisions in the EU Directive and the fair use exception in US law. As there is no case law to the point in India, the legal landscape is definitely very shallow. This paper proceeds in four parts: Part I offers a firsthand legal analysis of provisions concerning fair dealing of computer programs under section 52(1) (aa), (ab), (ac) & (ad) of the Indian Copyright Act, 1957. It aims to conceptualize the notion of fair dealing of computer programme under the theory of copyright law as developed in comparative jurisdictions (the US and the EU). Part II deals with how the reverse engineering provisions provided as exceptions in copyright law interact with competition law and policy- primarily highlighting the statutory and policy developments based on experiences in EU and the US. This is done to evaluate and juxtapose similar concerns in the Indian context. Part III evaluates how far the interpretations developed in this paper in the Indian context are consistent with Article 13 and other provisions of the TRIPS Agreement in the light of the three-step-test developed by a WTO panel in US — Section 110(5) Copyright Act (2000).
Completed papers/drafts are made available on open access platforms or can be provided on request made to the Office of the MHRD Chair on IPR