It’s been almost one year since the song, ‘India needs a stronger IPR law and policy’ was first published after the grand Indian election of 2014. It has remained the number one song even in 2015 and there is no sign of its fading way in the near future. Till date there have been several versions of the song, ‘India needs a stronger IPR law and policy’. All the versions claim that a stronger IPR regime will benefit India in 3 possible ways:

• A stronger IPR law & policy will make India an attractive destination for
  investment.
• A stronger IPR law & policy will lead to greater R&D investment both by foreign
  as well Indian firms and therefore create more intellectual property in India.
• A stronger IPR law & policy will metamorphose Indians (people &firms) into
  inventors & innovators.

If benefits are so obvious then why hasn’t India adopted a stronger IPR law and policy? It would seem a win-win situation to everyone.

The obvious reason might be that India already has a stronger intellectual property regime. India has incorporated all the obligations under the TRIPS Agreement (Agreement on Trade Related Aspects of Intellectual Property Rights, 1994) that provides for global ‘minimum standards’ for every form of intellectual property. ‘Minimum standards’ should not be read as a weak IPR regime because for countries alien to these standards before 1994, they almost qualify as ‘maximum standards’. 

Back to the benefits that India will supposedly gain by adopting a stronger IPR law and policy.

• A stronger IPR law & policy will make India an attractive destination for investment.
  It’s true that an IP intensive firm investing in India would feel safe in investing if they were sure that
  their IP would be protected in a time bound legal system. In Jan 2005, India adopted all the mandatory
  IP norms under the TRIPS agreement but still there has been no surge of investments in India by IP
  intensive firms.
  The problem lies more in the enforcement of IP laws, which can be attributed to an extremely slow legal process and lack of understanding of IP nuances. The temporary injunction cases can easily last up to a couple of years and rarely do we find any finality to IP cases.
  Imagine the horror of a technological firm protecting IP in an Indian court; by the time the temporary injunction is settled, the technology would become obsolete and useless in some cases. One solution often recommended is the establishment of fast track IP courts with specialized judges.
  Therefore, the biggest problem is the absence of an effective and time bound legal resolution. Delay in legal resolution results in an ineffective enforcement of IP rights. The delay in legal resolution is unfortunately a bigger Indian problem not just limited to IP laws. If a stronger IPR law and policy could change India’s legal system then we should not wait another day to adopt them.
• A stronger IPR law & policy will lead to greater R&D investment both by foreign as well Indian firms and therefore create more intellectual property in India.

Again, if IP intensive firms feel safe that their legal rights are protected in a secured time, then even
with the present IPR laws there should have been more IP investment in India since Jan 2005.However, the change did not see a surge in investment by IP intensive firms in India. Though, the change definitely resulted in market and social problems that led to increase in number of IP litigation in India.
Absence of an efficient time bound judicial system is one of the biggest deterrent for investors looking to invest in India. Uncertainty and long legal delays have never attracted investors. When you add bureaucratic rigmarole for getting approvals from the government, you scare them a little bit more. And, finally the relationship based business practices confuse investors so much that they start
looking at other countries in Asia. Therefore, I am not convinced that only a change in IPR law and policy will make any real change unless we address other challenges in India.
Now, whether Indian firms will invest more in R&D, I’m certain that a change in IPR law and policy will not result in any substantial increase in R&D by Indian firms. Few big Indian firms have substantially raised their R&D expenditure in last decade but majority of firms in India do not invest in R&D. That I think has to do more with the absence of spirit of inventiveness and capacity to take risk both at the level of the firm and the individual. The absence of spirit of inventiveness and capacity to take risk will explain that stronger IPR alone will not metamorphose Indians (people and
firms) into inventors & innovators.

• A stronger IPR law & policy will metamorphose Indians into inventors & innovators.

Mere change in the law will not metamorphose Indians (people & firms) into inventors or innovators. There is no doubt that Indians are creative and intelligent but we have failed in last sixty years to come up with a path breaking invention or innovation within India. However, Indians have contributed significantly in inventions and innovations outside India. Have we ever wondered what is the big difference in two cultures that Indians become inventors and innovators outside India? Is it merely the presence of a stronger IPR law and policy?

No. It’s much more than just having stronger IPR law and policy. It has to do with the spirit of inventiveness and risk taking capacity of the individuals within the society. The spirit of inventiveness requires an education that promotes critical thinking and allows challenging the old norms. It can only
spring in a society that has basic human right of free speech and expression. The basic human rights are quintessential for invention or innovation because they allow everyone to participate in an entrepreneurial activity and try a new idea.

Even after the existence of an inventive spirit and capacity to take risk, it is essential to have an ecosystem, which supports the transformation of ideas into finished products & services. And, this is not possible without proper State support and a system based on meritocracy rather than personal
relationships and social status. 

Therefore, I am less optimistic that merely adopting a stronger IPR law and policy will metamorphose Indians into inventors and innovators in the twenty-first century.