Book review--Create, Copy, Disrupt: India’s Intellectual Property Dilemmas

This reviewer’s first encounter with IP India occurred in December 1996, as a member of the Israeli delegation to the WIPO Diplomatic Conference
on Certain Copyright and Neighboring Rights in Geneva, which led to the enactment of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (the so-called Internet treaties). What I remember until this day was the Indian delegation, manned by markedly capable staff who aggressively and relentlessly pushed their country’s agenda, even in the face of wide-spread opposition. At the time, I came away feeling that they had been a bit too prickly in their conduct, but I later came to appreciate that they were simply championing an outlook that reflected the sui generis nature of the Indian IP experience: not prickly, but doggedly focused on their country's IP interests.

Twenty years have passed. Here and there, books have been published on aspects of IP law in India, and the iconic blog, Spicy IP, provides virtually daily insights into the Indian IP scene. What has been lacking is a single volume that explains the subject in way that transcends a dry discussion of legal developments in favor of placing these events within the broader political, social and economic context. The publication by Oxford University Press of “Create, Copy, Disrupt: India’s Intellectual Property Dilemmas,” by Prashant T. Reddy and Sumathi Chandrashekaran, goes a long way towards filling this lacuna.

The book is divided into three parts. The first four chapters deal with the changing, sometimes controversial and never boring state of patent law in India (especially pharmaceuticals) from the founding of the modern country. What should be patentable has been an on-going theme, against the backdrop of international treaties and changing economic and political considerations. This reviewer was fascinated to read that the late US Senator Estes Kefauver, who was the losing Democratic candidate for vice president in 1956, was relied upon by Indian policy makers in connection with his position in the 1950’s on patents and the pharmaceutical industry.

More recently, Indian patent law has been most identified with Section 3(d) of the Patents Act, especially the notion of “efficacy”, as follows:

"3. What are not inventions - the following are not inventions within the meaning of this Act—… d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant."

The book takes the reader through the history behind this section and describes in illuminating detail the landmark Novartis case that squarely addresses this provision.

The next four chapters consider copyright, internet and on-line issues, setting out the local Indian nuances of these issues (what jurisdiction does not have its nuances when copyright is concerned?), placing these developments within their broader legal and socio-economic context. Printed texts, the movie industry (think Bollywood) and digital contents (think Bangalore/Bengaluru). Lurking behind the copyright story in India is the continuing challenge of how to provide access to contents in an economically feasible manner to its vast population of readers.

The final three chapters address IP issues that, it is fair to say, are quintessentially Indian—traditional knowledge, geographical indications for such products as Basmati rice and Darjeeling tea, and IP rights regarding religious and spiritual matters, such as trademark rights in religious personalities and the intellectual assets of a spiritual leader. What is missing for this reviewer is more discussion regarding the way that trademarks have played out in India, such as the story of Maruti Suzuki, and the various challenges that Coca Cola and Pepsi Cola have encountered over the years. But to be fair—these tales may be too far afield from the primary focus of the authors and their absence does not in any way detract from the book.

For those, such as this reviewer, who have had the opportunity to engage with IP India, this book is a must. And for those who have not yet encountered IP India, you can't do any better than to take a gallop through the pages of this engaging book.

Create, Copy, Disrupt: India’s Intellectual Property Dilemmas, Oxford University Press, by Prashant T. Reddy and Sumathi Chandrashekaran, is available here for £17.99, nearly 400 pages.