Dr. Saurav, Assistant Professor, Dept. of Humanities and Social Sciences, MNNIT, Prayagraj, Uttar Pradesh
Prof. Nalin Bharti, Professor of Economics and DPIIT IPR Chair Professor at the Department of HSS, Indian Institute of Technology (IIT) Patna
Introduction
Innovation and creativity are two essential components of every nation’s long-term growth and development. Recently, the IPR divide between developed and developing countries has widened due to control over knowledge and its economic value. India is now comparatively evolved in terms of patent protection activities and has fully adapted to the development and acquisition of intellectual capital, particularly since globalization.
India is enriched with massive genetic resources, traditional educational learnings, natural resources, and biodiversity. Their uses are embodied in what is referred to as Traditional Knowledge (TK). In legal terms, it is categorised as an Intellectual Property (IP) product. Since IP is an integral component of human society, each and every nation has dedicated agencies for laying out guidelines, implementation, and enforcement of IP-related matters. In India, many organisations/agencies deal with various aspects of IP.
The political and economic policies post-1950 have shaped IP governance worldwide, including India. The Indian government, in different years, showed willpower to regulate IP, but the outcome was not significant compared to other emerging economies like Brazil, South Africa, China, and others. Major development in IP promotion and awareness started after 2000. Still, India is lagging in the IP Index Report and the Global Innovation Index.
The political development of intellectual property rights (IPR) in India has undergone significant transformation since the country gained independence in 1947. Initially characterized by a strong emphasis on domestic innovation and public welfare, India’s IPR regime was shaped by its socio-economic context and the need to balance development with protection. The introduction of the Patents Act in 1970 marked a pivotal moment, aiming to promote technological advancement while addressing public health concerns. However, global pressure for harmonization, particularly following the TRIPS Agreement in 1995, prompted India to amend its IPR laws, leading to a more robust protection framework.
Comparatively, countries like the United States and members of the European Union have historically prioritized stringent IPR protections, reflecting their advanced industrial economies and innovation-driven models. The U.S. system, with its strong enforcement mechanisms, contrasts with India’s evolving approach, which remains sensitive to local challenges such as access to medicines and traditional knowledge. In contrast, countries like Brazil and South Africa offer insights into alternative models of IPR that incorporate public interest considerations.
This paper explores the trajectory of IPR development in India, highlighting the interplay between political decisions, economic needs, and global influences. By examining comparative frameworks in different countries, we aim to identify best practices and potential pathways for India’s IPR landscape, ensuring it supports both innovation and equitable access. This paper analyzes the political reforms in IPR from 1950 onwards to the present time. The research methodology is qualitative in nature, which includes literature review, historical documentation, and policy synthesis.
India as a restrictive economy
India’s trade and economic policies were highly restricted in nature. By and large, the import policy continued to be restrictive during the period 1947–52. Besides this, restrictions were also placed on exports in view of domestic shortages.
Liberalization of foreign trade was adopted during 1952–53 to 1956–57 as the goal of trade policy. Import licenses were granted in a liberal manner. The trade policy was reoriented to meet the requirements of planned economic development. A very restrictive import policy was adopted from 1956–57 to June 1966, and import controls further screened the list of imported goods. On the other hand, a vigorous export promotion drive was launched. The trade policy assumed that a lasting solution to the balance of payments problem lay in the promotion and diversification of export trade. Not only should the export of traditional items be expanded, but exports of newer items should also be encouraged. Similarly, import substitution industries should also be encouraged so that dependence on foreign countries is reduced. It was in this period that India’s trade policy was thoroughly reviewed by the Mudaliar Committee.
During this period, trade policy attempted to expand exports and simultaneously liberalized imports. Export promotion was given a significant boost through the acceptance and implementation of the recommendations of the Mudaliar Committee (1962). The major recommendations included increased allocation of materials to export-oriented industries, income tax relief on export earnings, export promotion through import entitlement, removal of disincentives, and the setting up of an Export Promotion Advisory Council and a Ministry of International Trade, etc. When these export promotion measures did not succeed and the adverse balance of payments persisted, the Government of India undertook devaluation of the rupee in 1966 as a major step to check imports and boost exports. Initially, devaluation was not successful, and the adverse balance of payments worsened during the Annual Plans. However, during the Fourth Plan, the trade policy was quite successful in restricting imports and promoting exports. This period continued until 1975–76.
The most significant milestone in India’s industrial development is the enactment of the Patents Act, which was passed in 1970. The fundamental core principle underlying this Act is the promotion of inventions and the timely commercialization of inventions on a broad scale. The principle emphasizes that patents should not solely confer a monopoly on the importation of patented articles into the country but should instead facilitate widespread commercial utilization of the patent. This principle is implemented through various mechanisms such as compulsory licensing and the registration of process patents for essential sectors such as pharmaceuticals, chemical substances, pesticides, and fast-moving consumer goods (FMCG). Notably, certain categories such as atomic energy inventions, agriculture, horticulture products, and living organisms are excluded from patentability, ensuring a balance between patent protection and the broader interests of technology development, public welfare, and the nation’s specific requirements. Thus, the Patents Act of 1970 aims to strike a reasonable equilibrium between providing adequate and effective patent protection while addressing the unique socio-economic needs and priorities of the country.
The government adopted a policy of import liberalization with a view to encouraging export promotion. During the Janata rule (1977–79), import liberalization was also adopted to augment domestic supply of essential goods and to check the rise in price levels.
Thus, the purpose of trade policy has been to stimulate economic growth and export promotion via import liberalization. Post-independence, India operated under the ‘License Raj’, a highly protectionist, state-led model with extensive government control and licensing for businesses. This inward-looking approach resulted in a stagnant “Hindu rate of growth” of 3% to 3.5% annually, and India never treated its trade and IPR policy as export-oriented industrialization.
India’s Trade Policy Reforms (1991 Onwards)
The Commerce Minister, Mr. Chidambaram, announced India’s trade policy on July 4, 1991. The trade policy (1991) aimed to reduce administrative controls and barriers that acted as obstacles to the free flow of exports and imports. The basic instrument developed by the policy was the Exim scrip in place of REP licenses. The purpose of this instrument was to permit imports to the extent of 30 percent against 100 percent realization of export proceeds. The objective was to bridge the BOP gap. The Gulf War caused a sharp rise in oil prices, draining India’s foreign exchange reserves and bringing the country to the verge of default. This crisis was considered a “golden opportunity” for reform.
In the context of liberalization, significant and progressive external trade liberalization has taken place since 1991, starting with the removal of Quantitative Restrictions (QRs) on most capital and intermediate goods, a drastic reduction in the extremely high level of the basic peak tariff rate from 350 percent in 1991 to 15 percent in 2006, and, over time, a reduction in the average level of nominal import duty rates. India started liberalizing its industry and moved toward an outward-oriented industrialization model.
The 1991 economic reforms opened India to the global economy, and with the WTO–TRIPS Agreement in 1995, major changes followed. Amendments to the Patents Act (1999, 2002, 2005) reintroduced product patents in pharmaceuticals, biotechnology, and chemicals. The Copyright Act was expanded (1994, 2012) to include digital works and performers’ rights. The Trade Marks Act, 1999, and the Designs Act, 2000 made India’s system globally compliant. National IPR Policy & Modernization (2016–Present): The National IPR Policy (2016) envisioned “Creative India, Innovative India.” It focused on awareness (NIPAM), institutional strengthening (CGPDTM), commercialization, and training (RGNIIPM, Nagpur).
India introduced amendments to its Patents Act in 2002 to fulfil additional obligations, including those related to the term of patents, which were to be implemented from January 1, 2000. These amendments also included a provision for a 20-year patent term and reversal of the burden of proof, which was enforced on May 20, 2003. Subsequently, the Patents Act of 1970 was amended for the third time through the Patents (Amendment) Ordinance, 2004, which came into effect on January 1, 2005. This amendment extended the grant of product patents to all fields of technology, including chemicals, food, agrochemicals, and drugs. This ordinance was later replaced by the Patents (Amendment) Act, 2005, which is currently in effect since January 1, 2005.
The Indian economy in the last two decades has emerged as a prominent economy. It has emerged as the 3rd largest economy in the world in terms of PPP (purchasing power parity) and the 5th largest in terms of exchange rate. Only the United States of America and China are ahead of India in terms of purchasing power parity. International trade has progressed from bilateral to multilateral. In the contemporary world, it has again evolved toward a self-centric order (unipolarity). India has entered into several bilateral and regional trade agreements over time. These agreements include many aspects of trade, from tariffs on goods and services to economic cooperation in the fields of investment, intellectual property rights, services, and exchange. For any economy, the real push comes from innovation, Research & Development, intellectual property rights, and technological advancement. Economists such as Robert Solow, Romer, Schumpeter, Robinson, and others have emphasized the role of innovation and R&D in achieving optimal growth levels in any country. India’s growth rate, which has been between eight to ten percent in the last decade, has largely been driven by sectoral growth. The Indian economy is still not receiving a strong growth push from the R&D and intellectual property rights system. India continues to lag in deriving full benefits from trade agreements and Foreign Direct Investment (FDI). Trading partners have repeatedly emphasized improving the IPR regime in India. India stood 5th in the world ranking of total FDI inflows (2020–2021), according to the World Bank (2021). IPRs are crucial for fostering technological advancement and the widespread dissemination of technology. They also provide incentives for innovation and establish the terms for technology transfer. Technological breakthroughs or innovations are often considered intellectual property, which requires significant investment to develop. However, these can be replicated at low cost in numerous industries. Enhanced IPRs in developing countries may promote the exchange of technology through market mechanisms. However, these exchanges may impede local firms’ access to cutting-edge technology by prolonging protection of intellectual property owned by foreign innovators (Maskus, 2000).
The Significance of IPRs
The significance of Intellectual Property Rights (IPRs) has increased with the establishment of international and regional regimes dedicated to IP protection. These initiatives have been driven by challenges encountered in international trade and economic growth (Fink and Braga, 1999). Policymakers in both developed and developing nations have given intellectual property rights greater attention since the mid-1970s. There has been considerable debate due to the increasing globalization of economic activity and the expansion of international trade in knowledge-intensive goods and services.
With increasing trade, foreign direct investment (FDI) in different economic sectors has also increased. The combined effects of these variables reflect the strategies adopted by countries for the protection of their IPR environment. Diverse national strategies have created a global movement for improved standards of protection. For example, several developing nations have changed their IPR regimes in response to international trade agreements and economic stabilization reforms. India is among those developing countries that have signed trade agreements such as CEPA, CECA, FTAs, and others, in which strengthening IPR is an important agenda.
The Impact of Intellectual Property Rights on FDI in the Pharmaceutical Industry: A Case Study
Through different studies, researchers have highlighted the critical role of strengthening intellectual property in attracting foreign direct investment for technological substitution. Additionally, the divergence in investment levels within the pharmaceutical sector between countries with robust patent laws, such as Malaysia, and those with inadequate investment underscores the complexity of this relationship.
Some literature, such as Rai (2008), presents contrasting findings on the Indian pharmaceutical industry, investigating the impact of India’s adherence to the TRIPS Agreement on foreign direct investment inflows. Employing surveys to gauge market sentiment and empirical analysis to validate its conclusions, this study underscored the pivotal role of strong property rights and macroeconomic indicators like GDP growth and trade size as determinants of FDI flows.
Further reinforcing this relationship, Shapiro and Mathur (2014) examined the Indian pharmaceutical industry, affirming the nexus between Intellectual Property Rights (IPR) and Foreign Direct Investment. Additionally, Pugatch and Chu (2011) assessed the impact of intellectual property on foreign direct investment in clinical research within the biopharmaceutical sector across developed nations. Using the Pharmaceutical Intellectual Property Index, their findings indicated that countries with stronger intellectual property rights tend to attract greater foreign direct investment in research by multinational companies.
Strengthening Intellectual Property Rights (IPR) through India’s Economic Agreements
Different case studies and research have highlighted the importance of trade agreements and treaties in achieving optimal economic growth. India has entered into several bilateral and regional trade agreements over time. These agreements include many aspects of trade, from tariffs on goods and services to economic cooperation in the fields of investment, intellectual property rights, services, and exchange. India has trade agreements with South Asian countries, ASEAN, Mexico, Thailand, Australia, the UAE, and several other countries.
India has signed the Comprehensive Economic Partnership Agreement (CEPA) and the Comprehensive Economic Cooperation Agreement (CECA) with a small number of countries. In 2005, Singapore became the first country to sign an agreement with India for Comprehensive Economic Cooperation. Article 11.2 of the India-Singapore CECA reflects the IPR statement.
India signed CEPAs with South Korea in 2010 and Japan in 2011, respectively. Under the South Korea–India CEPA, Articles 5.9 and 12.5 of the agreement contain IPR-related provisions. Under the India–Japan CEPA, IPR provisions are mentioned in Article 104 (public awareness), Article 105 (patents), Article 106 (trademarks), and Article 107 (Geographical Indications).
India and Malaysia signed a CECA in 2011. Under Article 10.2, Section D, the agreement explicitly addresses adherence to intellectual property rights laws and regulations. In recent years, India signed a CEPA with the United Arab Emirates (UAE) in 2022, further extending its network. Under this agreement, Chapter 11 (Subsections 11.1 to 11.34) deals with cooperation and enforcement in the field of intellectual property rights.
India has a strong, fair, and dynamic IPR policy that complies with TRIPS. It has a strong legal, regulatory, and judicial system in place to protect IPRs. It complies with its international obligations and makes use of the flexibility of the international regime to fulfil its developmental needs. The Indian government has passed several laws and statutes to improve enforcement effectiveness, including the Designs Act, 2000; the Patents Act, 1970; the Trade Marks Act, 1999; and the Copyright Act, 1957.
Empirical studies and theoretical literature have produced mixed results regarding the relationship between IPR and the inflow of FDI into host countries. IPRs are crucial for fostering technological advancement and dissemination. Developed countries have adjusted their IP rules and regulations according to their requirements. Studies suggest that the type of IPR ecosystem (patents, trademarks, industrial designs, GIs) influences FDI decisions. A robust IPR regime influences trade, knowledge transfer, and innovation in developing nations. The Government of India adopted the National IPR Policy in 2016 to stimulate creativity and innovation across industries and provide clear guidance on intellectual property rights. The above discussion shows that FDI, IPR, and trade agreements promote innovation and have a certain degree of impact on economic growth.
The descriptive analysis presented by Saurav and Bharti (2024) attempts to study the relationship between FDI inflows from CECA (India–Singapore and India–Malaysia) and CEPA (India–Japan and India–South Korea) countries, and seven non-CEPA/CECA countries (United States of America, United Kingdom, China, France, Germany, Mauritius, and the United Arab Emirates), and patent application filings in India. The need for such trade agreements is important, as they are argued to boost innovation, R&D, and the creation of a knowledge-driven economy.
Conclusion
Beyond the realm of trade, Intellectual Property Rights (IPRs) are also considered a form of investment and thus fall within the purview of Bilateral Investment Treaties (BITs) and the investment chapters of Regional Trade Agreements (RTAs), including Free Trade Agreements (FTAs) and Economic Partnership Agreements. There has been considerable debate surrounding the role of intellectual property protection (IPP), particularly the patent system, in fostering innovation, technology, and industrial development within India. While IPP is intended to incentivize innovation by rewarding inventors, a robust IPP regime may also impede the dissemination of knowledge and hinder technological development in India that follows technological advancements.
Since independence in 1947, India’s intellectual property rights (IPR) framework has undergone continuous transformation to balance national development goals with global trade obligations. The reforms reflect a shift from self-reliance and affordable access in the early decades to global competitiveness and innovation promotion in the 21st century.
The Indian Patents and Designs Act, 1911, granted strong patent monopolies, particularly in pharmaceuticals, which led to high prices and dependence on imports. After independence, several committees reviewed the system, emphasizing the need for affordable medicines and indigenous technological growth. These reforms enabled the rise of India’s robust generic pharmaceutical industry, ensuring cheaper drugs and boosting self-sufficiency. India is now fully equipped with numerous reforms. These reforms are further supported by trade liberalization, more liberal investment policies, and a strong IPR framework
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