Earlier this month, the Department of the Industrial Policy and Promotion (DIPP) of the Indian government announced several reforms to the system of intellectual property in that country. “Several measures have been taken to ensure continuous and unending improvement of the Indian IP ecosystem,” the department said, in a statement.
Among the changes announced was the modernization of IP administration, which included “the
complete electronic processing of patents and trademarks applications.”
One of the many hopes for the Modi government in India is that he will finally bring India’s patent system—especially its system for protecting foreign patents on new pharmaceuticals—up to international standards.
It was only recently, 2005, that India began to grant any pharmaceutical patents at all. But even after being granted, these patents were limited. As a result, patented pharmaceuticals face significant counterfeiting in India.
Since many of the pharmaceuticals being counterfeited come from American companies, the U.S. has been putting pressure on the Indian government for years to improve its patent system. It has had little success in this endeavor in the past, but it is hoped that the Modi government, being perceived as business friendly, might be more responsive. After all, shouldn’t all countries protect each other’s intellectual property rights?
Before we get too far up on our high horse, let’s take a minute and remember that America used to do the same thing.
In The Copyright Wars: Three Centuries of Trans-Atlantic Battle author Peter Baldwin documents that the U.S. didn’t have a Federal Copyright Act until 1790. And that law only protected works created by an American. Foreign authors of works received no protection at all.
In the 1800s America was a developing nation. And limiting intellectual property rights to natives only was a way the U.S. government, as Baldwin notes, “consciously chose the advantages of counterfeiting and piracy for the fledgling nation.”
The argument against protecting the copyrights of foreign authors was that America was a young nation and so we needed a highly-educated citizenry if we were to make it in the wider world. Education would come self-directed; thus, cheap books were needed. Eliminating the requirement to pay authors for their works would make books cheaper.
To benefit our nation, we consciously went against the prevailing international norm and ignored the rights of foreign authors. This is not so different than what many nations have done with patented pharmaceuticals for many years now.
While such a system may provide cheap books or cheap pills, it also does two other things, both of them very destructive. First, it discourages the development of homegrown industry. Indian pharmaceutical companies are doing amazing work figuring out how to produce very cheap generic or knock-off versions of drugs, but there is much less interest in producing new drugs.
Second, legal structures like these are reciprocal in nature. We protect foreign intellectual property not out of altruism, but because doing so helps us. We give rights and protections to others so that we may have them as well.
The rise of internationally-recognized U.S. authors like Harriet Beecher Stowe, Mark Twain, and Walt Whitman lead to our taking copyright more seriously. So in 1891, 101 years after we granted copyright protection to ourselves, the U.S. finally provided the same protection to foreign authors in America.
The pressure on a young government to bend the rules to their own immediate advantage is great—and certainly the pressure to improve access to life-saving medicine that a country like India faces is greater than the pressure for cheap books that the U.S. faced—but doing so is penny wise and pound foolish.
Long-term IP laws always pay off.
William Mansfield is director of intellectual property at ABRO.