The Department of Trade and Industry of South Africa released the Draft Intellectual Property (IP) Policy Phase I in August this year. Phase I proposes a set of legal changes to address IP rights and public health, and measures to enhance cooperation at the global level. In order to address the interfaces between IP and public health, the policy proposes measures in the following areas: local manufacture and export in line with industrial policy, patent – substantive search and examination, patent opposition, patentability criteria, disclosure requirements, parallel importation, exceptions voluntary licensing, compulsory licenses, IP and competition law. Most of these measures are basically to strengthen or incorporate the flexibilities in the TRIPS Agreement. IP Policy explains the rationale: “…the South African government has to date not made full use of the flexibilities available within international trade rules through the pursuit of appropriate national policy and legislation”. These proposed changes would bring the South African patent law at par with the Indian Patents Act, which incorporated these flexibilities long ago. South Africa’s IP policy is very clean in its development orientation, while the India’s IP policy moves away from such orientation even though the Indian Patents Act incorporated provisions to address the development concerns.
The most striking aspect of the South African IP Policy is its links with the National Development Plan (NDP) and industrial policy. The draft IPR Policy states: “The IP Policy must be informed inter alia by the Constitution, NDP, the National Industrial Policy Framework (NIPF) and the various iterations of the Industrial Policy Action Plan (IPAP). It should also be aligned to the country’s objectives of promoting local manufacturing, competitiveness and transformation of industry in South Africa.” Thus, it is very clear that the IP policy is subservient to the constitution and development needs. This is a striking difference between the SA IP Policy and our IP policy. India’s national IP Policy, adopted in 2016, does not make any such reference to existing policies like health policy or science and technology policy and it disconnects from the development needs of the country.
India has a long history of IP laws, which have evolved taking into consideration the national needs and international commitments. The existing laws were either enacted or revised after the TRIPS Agreement and are fully compliant with it. These laws, along with various judicial decisions, provide a stable and effective legal framework for protection and promotion of IPRs. This striking feature of utilising the legislative space and flexibilities available under TRIPS Agreement, but the policy maintains silence about leveraging of flexibilities to ensure that India protects IP rights, while simultaneously promoting public health, food security, transfer of technology and broad socio-economic development. By reading South Africa’s IP policy, one can easily find that the South African government proposes to emulate the Indian approach to TRIPS flexibilities and incorporate these flexibilities to the optimum level in the domestic legislation/s. The Indian policy, on the other hand, is making only a lip service to the use of flexibilities and to move away from developmental concerns on IP and underlying development oriented approach to the Patent Act.
The IP policy, in its problem statement, has rightly identified its shortcomings and ground realities such as it requires a comprehensive IP policy that would promote a holistic, balanced and coordinated approach to IP and contribute to South Africa’s socio economic betterment, by promoting local manufacture, preserving and leveraging the country’s resources and heritage, encouraging innovation, and empowering domestic industries and individuals who seek to take advantage of the IP system. The IP policy has specifically taken note of the intersection of IP and public health, which has long been an issue of contention within South Africa. It also acknowledged in its problem statement that public health, as both a constitutionally guaranteed right, as well as a key development goal, the issue of access to health care services – and the role of IP in delivering public health – has been at the forefront of human rights’ debates in the country.
The IP policy has expressly mentioned that it must first and foremost engender the ethos of the South African constitution and also reflect the country’s broader social economic development objectives. Hence, the policy remains aligned to the constitutional objectives and its socio economic goals. The IP policy elaborated: “The South African Constitution provides a balanced approach to property rights in general by affording protection against arbitrary deprivation of property, while also taking into account the public interest. In this regard, public interest includes the nation's commitment to bring about reforms that promote equitable access to services and products involving IP, such as in the sphere of health.”
On the other hand, India’s IP policy instead of addressing the development concerns faced by the countries and challenges posed by a patent rights focusing on enhancing the protection and enforcement of patents. Instead of addressing the challenges posed by IP on development pathway, the policy attempts to use IP protection and enforcement as stepping stone for development, which lacks is unheard in the history of development. For instance, one of the objectives of Indian IP policy is to carry out massive awareness programmes on the importance of IP without telling the limitation of IP. Thus India’s IP policy, for all practical purposes, is disconnected from the legislative intent and development needs of the country.
Generally speaking, law is one of the instruments for the policy implementation. However, there is no hard and fast rule and policy can be used to implement the law. India’s IP laws are appropriately framed to address the developmental needs of the country, but there is a need for effective implementation to meet India’s economic and technological needs. From this perspective, India’s IP policy is inadequate for effective and efficient implementation of flexibilities to address issues like the public health. Lamentably, such issues fail to find its rightful place in the policy, although India is one the champions for defending the TRIPS flexibilities at various international platforms. Like South Africa, India, too, needs to recognize its domestic development needs and constitutional obligations while protecting and enforcing patent rights. It is crucial for developing countries like India and South Africa to remain on the forefront in leveraging flexibilities contained in the TRIPS Agreement to ensure that they protect IP rights while simultaneously promoting public health, local manufacture, research and development, innovation, food security, environmental considerations, transfer of technology and broad socio-economic development.
The Draft IP Policy of South Africa is a validation of development-oriented approach to patents law. If the proposed changes are incorporated in the South African patent law, India will have one more ally at the international level to defend the use of flexibilities. India’s political leadership should shed its wavering stand and ally with its South African counterpart to defend the use of flexibilities.
Shirin Syed is a Research Scholar at North Maharashtra University , Jalgaon.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]