India continues to be on the ‘Priority Watch List’ of the United States Trade Representative (USTR) for lack of adequate intellectual property (IP) rights protection and enforcement, the USTR said in its Annual Special 301 Report , released on Wednesday.
India remained one of the most challenging economies for IP enforcement and protection, the report said, using language it has used previously. Algeria, Argentina, Chile, China, Indonesia, Russia, Saudi Arabia, Ukraine and Venezuela are also on the Priority Watch List. While India made “meaningful progress” to enhance IP protection and enforcement in some areas over the past year, it did not resolve recent and long-standing challenges, and created new ones, the report said. The same assessment was made in the 2019 report.
These long-standing concerns were about innovators being able to receive, maintain and enforce patents particularly in the pharmaceutical sector; concerns over copyright laws not incentivising the creation and commercialisation of content; and an outdated trade secrets framework.
“India also further restricted the transparency of information provided on state-issued pharmaceutical manufacturing licenses, continues to apply restrictive patentability criteria to reject pharmaceutical patents, and still has not established an effective system for protecting against the unfair commercial use, as well as the unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceuticals and certain agricultural chemical products,” the report said.
The report also mentioned high customs duties on medical devices and Information and Communications Technology. These goods categories were have been persistent challenges in trade talks between the two countries last year — the language used in the 2020 report in this context is the same as in the 2019 report.
“Despite India’s justifications of limiting IP protections as a way to promote access to technologies, India maintains extremely high customs duties directed to IP-intensive products such as medical devices, pharmaceuticals, Information and Communications Technology (ICT) products, solar energy equipment, and capital goods,” it said.
Online IP enforcement in India has improved, the report said, but progress is undercut by factors including weak enforcement by courts and the police, lack of familiarity with investigative techniques and no centralised IP enforcement agency. The USTR also noted that India was ranked among the top five source economies for fake goods by the Organization of Economic Development and Cooperation (OECD) in 2019.
Not good for online rights
The government’s 2019 draft Copyright Amendment Rules, if implemented, would have “ severe” consequences for Internet-content rights holders, the report said, as the proposed rules broadened the scope of compulsory licensing from radio and television broadcasting to online broadcasting.
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Trademark counterfeiting levels were “problematic”, the report said and there were “excessive delays” in obtaining trademarks due to a lack of examination quality. The U.S., the report noted, continues to urge India to join the Singapore Treaty on the Law of Trademarks, a treaty that harmonises trademark registration.