Last week, Washington DC’s Global Innovation Policy Center ranked India 44th out of 50 surveyed countries in the sixth edition of the US Chamber of Commerce’s International IP Index for 2018. The Index releases each February and rates a country’s intellectual property legislation, policy, enforcement and systems on 40 different metrics over the previous year, awarding a maximum of one point on each metric. The United States placed first on the 2018 Index, narrowly edging out the United Kingdom.
Indian Coverage of the 2018 Index
The Hindu, Mint, Business Today and Business World all punched in by-the-numbers day-after reports on India’s performance on the 2018 Index. About three weeks ago, India Today and The Hindu Business Line had copy-pasted a PTI report reproducing GIPC Vice-President Patrick Kilbride’s view that India could be expected to do better than its 43rd place (out of 45) in the 2017 ranking.
From the media I’ve parsed, there was no initial attempt at analysis, discussion or comment, and the major English-language media houses offered nothing on the history, significance or consequences of the Index itself, other than the bare basics.
A Bloomberg Quint report published yesterday, however, finally asked the question of how meaningful India’s poor 2018 showing on the Index is. Most such pieces, if they invite opprobrium, tend to do so because they abstract outwards from an political or policy position without context or basis, lazily reproduce unconnected material in sequence, or offer up views that are plainly incorrect. This manages to do all three nicely. It is a certifiably atrocious bit of journalism, and yet, in the absence of virtually any discussion on the subject at all, one significant enough to merit this response.
(Before that, though, it is important to do something that the Bloomberg Quint report does not—provide a link to the 189-page report accompanying the 2018 Index. The report, comprehensive in several respects, is available here. A snapshot of India’s 2017 performance is found at pages 87–89.)
India’s Performance on the 2018 Index
Compared with its 2017 ranking, India scored higher on related rights and limitations in both the patents and trademarks categories, held position in the copyrights category and on international treaties, and lost ground on enforcement.
The patents improvement was pivoted around July 2017’s revised Guidelines for Examination of Computer-Related Inventions. The trademarks improvement rests predominantly on the uncluttering of the trademark registration process and the incorporation of a direct-to-decision Well-Known Trademarks registration procedure under March 2017’s Trade Marks Rules. The Index also notes relatively greater ease in securing copyright infringement injunctions. Detailed comments on these categories are found at pages 36–37 (patents), 41–42 (trademarks), and 88 (copyrights).
The Index Slates India in 14 out of 40 Categories
In the 2018 Index, India draws a blank on fourteen categories of intellectual property protection and policy. These are:
Patentability requirements;
Pharmaceutical-related patent enforcement and resolution mechanisms;
Legislative criteria and active use of compulsory licensing of patented products and technologies;
Patent term restoration for pharmaceutical products;
Membership in Patent Prosecution Highways (PPHs);
Patent oppositions;
Scope of limitations and exceptions to copyrights and related rights;
Regulatory Data Protection (RDP) terms;
Pre-established damages and/or mechanisms for determining the amount of damages generated by copyright infringement;
Transparency and public reporting by customs authorities of trade-related IP infringement; and
Four categories under International Treaties, including the WIPO Internet Treaties, the Singapore Treaty on the Law of Trademarks, the Patent Law Treaty, and the requirement for “at least one free trade agreement (FTA) with substantive and/or specific IP provisions, such as chapters on IP and separate provisions on IP rights provided it was signed after WTO/TRIPS membership.”
Of these, the scores in three categories — patentability, provisions for compulsory licensing, and exceptions to copyright — are evidently insensible. These are categories in which India has taken important but potentially innovator-unfriendly steps in recent years. None, however, properly correlate to the year in review. As such, the scores of zero on all three are tough to justify.
Another four categories — pharma patent enforcement, pharma patent term restorations, PPHs and RDPs — are arguably slanted from an Indian standpoint, not so much for India’s score but for whether they merit inclusion as categories in a broad-ranging review of this nature in the first place. (The latter is a point well made in this 2014 post on the SpicyIP blog which is exhaustive but distractingly full of nitpicks.)
But that’s about it. India is, unquestionably, 0 for 4 on the international treaties front. There is no consensus judicial flowchart on copyright damages (or damages in general). The patent opposition system puts up shockingly poor pendency numbers year on year. And if it is a researched opinion that the integration of Indian Customs with IP enforcement is in the nether percentiles globally, I can neither point to conclusive counter-evidence nor bring myself to disagree.
The Index Also Credits India More Than Merited
To the contrary, some of the category-wise ratings distinctly flattering to India.
It gives India the maximum score possible for consulting with stakeholders in IP policy-making, and in raising IP education and awareness. India scores 3.21 out of 7 on anti-counterfeiting and anti-piracy metrics, which, at a minimum, will amuse anyone with even the slightest awareness of how deterrent-proof India’s duplication industry has proved to be. India also scores 50% or better on the basics of affording protection to trademark and industrial design rightsholders.
There is also this passage from the report on the 2018 Index, discussing India’s performance on treating IP as an economic asset:
“Indian policymakers have long recognized the economic potential of IP as an asset. Successive government strategies — whether sector specific or more general — have highlighted the need for more effective technology transfer mechanisms and routes for commercializing IP. For instance, two of the seven objectives of the National Intellectual Property Rights Policy deal with the generation and commercialization of IP assets. Similarly, the National Biotechnology Development Strategy 2015–2020 focuses on increasing technology transfer capacities by creating a Technology Development and Translation network across the country with a global partnership that includes 40 new bio-incubators, 5 new bio-clusters, 150 technology transfer offices, and 20 bio-connect offices in research institutes and universities.
There is also a long-standing effort to introduce a national technology transfer framework. Since the mid-2000s, the Indian government has intermittently explored developing its own private-public technology transfer framework, the Protection and Utilisation of Public Funded Intellectual Property Bill, first introduced in 2008. Yet despite these efforts, technology transfer activities remain fairly limited. Relatively few Indian universities have functioning technology transfer offices. The institutions with the most advanced and developed technology transfer capabilities are the Indian Institutes for Technology, with the institutes in Madras and Mumbai having technology and start-up incubators in place.
WIPO statistics suggest that patenting by Indian public research organizations (PROs) and universities is still quite limited. In 2016, India had no university among the top 50 Patent Cooperation Treaty (PCT) applicants for universities. In 2013, a total of 55 PCT patent applications were made by Indian universities and 104 by PROs, most of which came from the Council of Scientific and Industrial Research. This compares with 3,920 applications by U.S. universities, which were the largest source of patenting applications by all universities globally, and 829 PCT applications from PROs in France, which filed the most applications globally in 2013.”
The reference to May 2016’s National IPR Policy document (press brief here) — one of the biggest, most embarrassing cop-outs in recent Indian policy history — must surely have been overrated or misunderstood by the Report. The other highlight here speaks to India’s miserable output from backbone innovation drivers in academia and industry. Just 1.4% of the global benchmark in terms of universities’ patent application filings and 12.5% of the same benchmark by Indian research organizations is quite damning. It is something that cannot be shaped into a point of contest; it is a fact.
For this sort of rundown to still sustain a rating of 0.5 out 1, as it does in the 2018 Report, is extraordinarily generous.
Unfair Comment?
All of this discussion — aside from a few scattered cut-pastes from the three-page India summary — is missing from the Bloomberg Quint report. Instead, it reproduces vast tracts of cluttered interview quotes from the aforementioned Patrick Kilbride, Indian IP academic Shamnad Basheer (who was also critical of India’s position on the 2017 Index, the 2017 Index, and the Index itself), and Indian patent lawyer Hari Subramaniam.
Stuck together clumsily and without context, the views of the latter two in particular, who are eminently knowledgeable about Indian IP and evidently hold strong and perfectly defensible views against the Index, come across extremely poorly, as if lacking in nuance but not in motivation.
Is it really a “suggestion” that India would have benefited from a year on year Index reflecting Indian courts’ activity rate in enforcing patents that were litigated years ago? Does it make any sense to rule the CRI changes a failure based off assessments of Patent Office attitudes to legislation that was notified less than 8 months ago? How would it help India’s ranking to reward reforms like the introduction of the Commercial Courts Act which offer quicker disposal of IP suits — a dissipated category that the 2018 Index already scores India fairly gracious on?
To be clear, criticism of the Index should absolutely be called out. It is, for instance, extremely inconsistent in its reliance on supporting material. It flicks over between the calendar year in review and longer stretches of time seemingly to defend rather than inform its category-wise scoring.
It should also be criticized for being replete with broad and virtually unverifiable generalizations, such as the “IP environment” having “either stood still or deteriorated since 2013” in the BRICS countries. Throwaway statements such as its commendation of India’s “individual positive initiatives” — essentially just a nice way of saying “isolated acts of competence which suggest that all hope may not be lost” — should also be seen for the veiled messages they attempt to convey.
Finally, and perhaps most importantly, it should urgently be qualified by recognizing how much of the structure of the Index constructs a methodological ceiling based on a subject country’s income-level.
However, it also bears recognition that the Global Innovation Policy Index is unabashedly pro-innovation and supports powerful intellectual property protection. It orders surveyed countries on this basis. Some countries, by circumstance or by choice, will automatically fall ‘behind’ on these criteria. So long as it is transparent, there is absolutely nothing wrong with any of this. If the objection here is a policy-based one — graded on the strength afforded to intellectual property protection — surely those opposed to such protection would want India to finish bottom of the Index?
However, the difficulty with that has little to do with not wanting to finish last or with national pride, whatever perverse version of it operates to fuel the indignation over India’s ranking. Instead, it has much to do with how finishing bottom of the Index would, inseparably, also have the consequence of legitimizing some perfectly merited criticisms of Indian IP. There is simply no workaround for the fact that India’s IP registration offices are hopelessly overburdened, that there are yawning gaps in enforcement, that IP is not monetized nearly enough by traditionally important innovators, that legislative change is glacially slow in execution and uptake, and that the Indian government has been unacceptably passive of late when it comes to international IP.
If an international ranking, however flawed, holds a mirror up to these realities, it reflects poorly on us if our instinct is to attack the ranking itself without confronting those realities.
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