Two decades after the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) reached a delicate modus vivendi between advanced and emerging economies, the global IP regime is once again undergoing a churn. The momentum that regional ‘mega-agreements’ like the Trans-Pacific Partnership and the Regional Comprehensive Economic Partnership have gained can be attributed to the rise of digital economies in Asia. Data is borderless, but the laws in place to protect its commercial and sensitive nature continue to be territorial.
Meanwhile, the old faultlines around which the TRIPS agreement nearly came apart have not gone away. IPR regimes in pharmaceutical sectors of developing countries have been the subject of intense scrutiny in recent years. While proponents of enhanced IP protection laws argue that they foster innovation in societies, others caution that a strict regime will affect the provision of affordable health care in India. These claims may seem intuitive, the reality is that there has been careful study around the implications of new IP regimes. The link between innovation and IP laws is far from causal, and just as non-linear are the implications of stronger protection for the price lines of certain categories of drugs.
These claims will likely animate the debate on digital IP rights as well. The US Trade Representative’s “Digital 2 Dozen” paper, outlining 24 objectives of the TPP, should be evaluated seriously by Indian policy makers. Among the TPP’s goals are:
Is India, a country in which the IT sector has been remarkably successful in innovating with meagre resources, ready to adapt to these requirements? Do these objectives affect, positively or negatively, the growth of a digital economy that is far from maturation? Above all, what are the implications for stronger trade regimes on affordable connectivity in India?
The question of intellectual property rights is one that cuts across the digital economy. As India moves up the ICT supply chain in Asia and absorbs higher-end technology, will its IP regimes too evolve to reflect the interests of hardware and software vendors? Will “free” flow of cross-border data limit the role that Indian policymakers have in tweaking copyright protection and intermediary liability laws?
These questions are no doubt complex and need to be answered by clinical, dispassionate analysis. In an effort to promote research and offer policy assistance to India’s IP regulators, diplomats and courts, the Observer Research Foundation and SpicyIP have instituted an annual fellowship for students of law and economics in their advanced years of undergraduate study. The Fellows, selected after a rigorous assessment process, will receive a competitive stipend and the opportunity to base their research in New Delhi for three months during the academic year. While the on-site involvement is limited to three months, the fellow will work closely throughout the year with ORF and Spicy IP researchers on specifically identified, strategic questions on global IPR regimes. Fellows will also have an opportunity to present their papers at CyFy, ORF’s annual conference on internet governance and cyber security in September/October, in the case of fully formed papers/proposals. (CyFy 2016 will be held between September 28 and 30). These are the broad terms of the fellowship, which will be tailored to individual candidates based on their experience and availability.
The first ORF-SpicyIP fellow is Balaji Subramanian, a fourth-year student at NALSAR University of Law. Balaji was previously an editor of the Indian Journal of Intellectual Property Law, and is an active member of the Nalsar Technology Forum.
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