Review: ‘How effective Are India’s Model Guidelines On Implementation Of IPR Policy For Academic Institutions? Seeking The Answer From The US And The UK Experience’ (2021) By Saha, P.K. & Kaushik, S.

Author: Former Intern - Gazal Sancheti

Citation: Saha PK, Kaushik S. How effective are India’s model guidelines on implementation of IPR policy for academic institutions? Seeking the answer from the US and the UK experience. J World Intellect Prop. 2021;24:100–121. <https://doi.org/10.1111/jwip.12181 >

Introduction

The above captioned article presents a detailed analysis of the Draft Model Guidelines on Implementation of IPR Policy for Academic Institutions[1] notified by the Department for the Promotion of Industry and Internal Trade, Government of India, in September 2019.

The article looks at the existing legal framework on IP generated by academic institutions and public-funded research in India, the US and the UK to provide context for the arguments presented in the text. It delves into the nature of the Guidelines, discusses its drawbacks, and comparatively analyses the Guidelines with the framework in the US and the UK, in an attempt to anticipate the consequences of enforcing the Guidelines in India. Based on the various arguments set out in it, the article concludes that although the Guidelines were brought with pious intentions, yet they are “misplaced, inapt and ill-judged”.

Scrutiny

The article points out that hitherto, academic institutions had the complete discretion to protect and commercialise IP created through public funds, leading to inconsistent institutional policies. Hence, the Guidelines are introduced as a way to bring congruence, as well as to overhaul the relationship between academic institutions and industry, so as to facilitate commercialisation of IP and provide higher incentives to researchers.

Talking about the non-binding nature of the Guidelines, the article notes that the Government seems to have taken cue from its experience with the Protection and Utilization of Public Funded Intellectual Property Bill, 2008, [2] which was criticised for being unnecessarily restrictive and punitive in nature. However, despite the Guidelines not having the force of law, it is argued that their importance would not be undermined as they might bring about behavioural changes. The article cites examples wherein societal attitude has undergone a positive change owing to non-binding regulations, and it is presumed that the Guidelines would have the same effect. But the article fails to consider the relative unawareness of the Indian population about IP and its importance. IP, as a field of law, has only started to gain its grip in India even amongst the legal fraternity, and betting on behavioural changes in such a scenario seems utopian. Further, the studies relied on in the article are from the domain of rape laws and anti-discrimination law, and no evidence is presented to suggest that the same effect could take place in the realm of IP laws as well, especially considering its commercial aspect.

Deficiencies

The article discusses various drawbacks of the Guidelines. Firstly, concern is expressed over the omission of defining the term “academic institution” for the purposes of the Guidelines. It is argued that lack of the said definition creates ambiguity regarding applicability of the Guidelines to research institutions and laboratories. Secondly, the Guidelines do not differentiate between “innovation” and “invention”, which are inherently different concepts. The article also points towards disregard of Section 47(3) of the Patent Act, 1970, as the Guidelines allow for an agreement to be made between the researcher and the academic institution whereby the institution may agree to not retain the license to use the IP for research and educational purposes. It is correctly noted that the Guidelines cannot override the provisions of the Patent Act, 1970, but this error shows inattention on the part of the drafters. Thirdly, it is argued that the Guidelines are also incompatible with the National Innovation and Startup Policy, 2019 [3], (NISP) as there appears to be a contradiction between their patent ownership schemes. While the NISP provides for joint ownership of IP by the inventor and the institute, the Guidelines vest ownership with the institution. Fourthly, the Guidelines do not give any freedom to the IP creator to decide whether to seek IP protection or not. The decision is made by the academic institution. The article rightly contends that this might stifle open access to research.

Comparisons

The article mentions the rationale behind choosing the US and the UK for comparative analysis is that India’s academic IP policy is moving from a UK-style framework to a US-style framework. The UK-approach gives each academic institution freedom to come up with its own IP policies, while the US-approach establishes a statutory mandate to be followed. Hence, the experiences of these countries, it is assumed, provide a valuable insight into the consequences of enforcing the Guidelines. However, this assumption is unfair because, despite the legislative framework being similar, India vastly differs from the UK and the US in terms of industrial structure and quality and quantity of research done in academic institutions.

Conclusion

The article analyses various aspects of the Guidelines quite thoroughly, and relies on credible studies and data for each of its arguments. However, it does not consider the socio-economic realities of India at certain places, weakening the basis of a few assumptions. Having said that, issues in the Guidelines highlighted by this article make the Guidelines seem like a rushed effort to emulate the US-framework, without keeping in mind India’s current legal framework.

Endnotes

[1] Model Guidelines on Implementation of IPR Policy for Academic Institutions, 2019, Cell for IPR Promotion & Management- Department for the Promotion of Industry and Internal Trade (CIPAM-DPIIT), Government of India. https://dipp.gov.in/sites/default/files/Draft_Model_Guidelines_on_Implementation_of_IPR_Policy_for_Academic_Institutions_09092019.pdf 

[2] The Protection And Utilisation Of Public Funded Intellectual Property Bill, 2008. https://prsindia.org/files/bills_acts/bills_parliament/1229425658_The_Protection_and_Utilisation_of_Public_Funded_Intellectual_Property_Bill__2008.pdf 

[3] National Innovation and Startup Policy 2019 for Students and Faculty, 2019, Ministry of Human Resource Development, Government of India. https://mic.gov.in/assets/doc/startup_policy_2019.pdf 

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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