India: Combating The Weak IP Enforcement In India

Last Updated: 25 February 2015
Article by Zoya Nafis

Indian IP policy despite being in compliance with the International standards provided by the TRIPS Agreement is often alleged to be weak and ineffective. India ranked last in the GIPC Index of 2014 conducted by the US Chamber of Commerce and was blamed for having the weakest IP environment in regard to protection and enforcement of IP rights. The weak enforcement of IP rights in India is quite evident. This often leads to a situation where IP right holders do not get the chance to enjoy their IP assets fully. It is high time that the government must act proactively to provide strict enforcement of IP rights.

What could be done?

The situation of poor Intellectual enforcement in India demands for stringent efforts to bring a change. For this many efforts could be taken by the government and other judicial and administrative authorities. Some of the recommendations could be:

  • Creating Awareness: In the first place, it is highly recommended that India must do something about creating IP awareness among the stakeholders and public at large. Creating awareness in regard to IP rights and their enforcement would not only help the IP holders to enjoy their rights fully but also encourage others to create more and deter the infringers from violating the rights of others.
  • Managing the cases electronically: Electronic Case Management system is a system that includes e-approaches and techniques used by the Courts to leverage knowledge and methodologies for managing the pendency of a case more effectively. It allows the courts and other judicial authorities to accept filings and provides access to the filed documents online. The system also offers the ability to immediately update dockets and download documents and print them directly from the court system.
  • Fast-track judicial process: It is often argued that the laid back and lengthy judicial process in Indian Courts lead to a situation where the IP holder does not get a chance to enjoy his rights properly as the term of IP gets shortened because of the lengthy judicial process. It is very crucial that issues involving IPRs must be resolved within appropriate time so as to enable the IP holders to have the fruits of their labour without any delay.
  • Specialized Judges: Indian judicial authorities lack expertise and training in IP. If specialized training would be given to the judicial officers, they would render more appropriate and fair judgments in regard to IP protection and enforcement. Considering the fact that India is a developing country it would not be easy to provide infrastructure for an IP specialized court, however, specialist judges within the general courts would be sufficient.
  • Improvised Infrastructure of IP offices: The delayed processing of applications and others actions in the IP offices is one of the major reasons for short enjoyment of intellectual property rights by the holders. Like in case of patent, the whole process of examination, opposition and grant by the Indian Patent Office takes 6-7 years consequently cutting short the term of the patent. The processing at IP offices must be enhanced with improvised use of technology and varied methodology.
  • Better digital rights management laws: Though the Copyright Amendment Act of 2012 brought few changes in regard to digital rights management, the same are not as vast and diverse as in US and the EU. The infringement of Intellectual property in the digital environment has vastly increased with the popularity of internet. Digital environment provides for easy access, easy copying and easy modification of the content posing serious threats to intellectual property owners. The authorities must adhere to strict implementation of laws against infringers in the digital world.
  • Keeping mediation as a priority solution for IP dispute resolution: Intellectual property plays an important role in commercial activities and other business activities. It is known that the relations matter a lot in business. Hundreds of disputes arise relating to IP in a day to day business, commercial entities would not want to affect their relation with their competitors that often. For this an amicable solution to the disputes are required and is usually preferred. Mediation is one such technique. First and foremost reason for preferring mediation is because it does not require strict regulations of the court to be followed; the parties resolve their dispute on their terms and reach out to a fast track resolution. Considering the number of cases resolved through mediation since the last decade, it seems that mediation is evolving as a successful tool for resolving IP disputes.
  • Active indulgence of expert investigators, law enforcement agencies such as the Police and Custom Authorities: IP offences are generally not taken as serious offences. This is the reason why infringers are not deterred and they habitually infringe the intellectual property of others. As the number of cases on intellectual property infringement is increasing day by day it is required that stringent actions must be taken against the infringers. Criminal enforcement of IP through the help of agencies like police, custom officers etc. must be resorted to wherever seems necessary.
  • Similar Policy Measures: Other similar reforms are needed for the better enforcement of intellectual property rights so as to enable the IP right holders to have the fullest enjoyment of the fruits of their labour.

The judicial authorities in India have made consistent efforts to ensure that intellectual property rights in India are adequately enforced and protected. Injunctions and damages are awarded wherever seems necessary by the Courts. However more efforts could be done to do away with the blames of weak enforcement of IP.

Now when the new IP policy of India is in the pipeline, a lot is expected to be resolved with its implementation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Zoya Nafis
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