By : Adv.O.Jotsna, Associate, Alishahz Legal LLP –
We have entered a phase of existence, where technology rules our every move, and it is no longer possible to conceive of a life devoid of the perks provided by it. Both personal and work-related activities are much easier and smoother, mostly thanks to the IT industry. From the simplest act of communicating with our family to the incredible feat of communicating with spacecrafts orbiting the Earth, are all dictated by access to technology. The innovations and developments in the IT industry are not slowing down, in fact, they are perking up and becoming even more competitive with each passing day. If anything, the COVID-19 pandemic, has made it clear that a society without person to person interaction is not a myth, but a reality. And in such a reality, without technology and especially Information Technology, survival would become almost impossible, for the most part.
Relationship between IT and IPR
The Intellectual Property Rights (hereinafter mentioned as IPR) are a conglomeration of several distinct intangible rights, which regulate and protect every original creations of the mind. Though there are sparse evidence and mentions of the IPR in ancient history, one cannot suspect their presence, nevertheless. Hence, the need to protect creations of the mind- be it artistic, utilitarian, for entertainment, or otherwise- has been ingrained in the human mind.
A separate legislative protection, however, can be traced back to medieval Europe. In India, the introduction of IPR can be credited with the British Colonization, and now the different types of IPR has become full-fledged and taken a life of its own. The IPRs are considered an asset of the right holder, and shall be protected as such.
Information Technology was a gradual progressive movement more than anything. At its core, the IT industry is an enabling one, wherein, it empowers every other industry in reaching their true potential, it enables a smoother sail towards their goal. The IT industry has attained such a strong footing in India, that it is pertinent to explore the relationship between Information Technology and the IP rights involved.
Intellectual property rights are the foundation of the software industry. Specifically, Patents, Copyrights, Trade Secrets, Trademarks and to an extent Non-Disclosure Agreements, are the rights that provide seamless protection to the software inventions, developments and innovations. Together, they form the essential group of rights, that are crucial in ensuring protection to the creators, while also providing them the stimulus and means of monetizing their creations. Without the incentive of financial recuperation and monetization, the IT industry would not have reached its current level of expansion. Currently, a software program can be either patentedor copyrighted, and any invention from the software program can be patented as well. Also, the symbol, logo, sign, phrase or slogan, used to promote and sell the invention can be trademarked. This is a very basic representation of how the IP rights aid the functioning of the IT industry.
IT industry and IPR compliances
Lately, the IPR regime of India, has been open to criticism, specifically from the US, as being not stringent enough. This has led to India being categorised as a promising market which is not yet ready, for industries which rely heavily on IP protection. IT is one of the industries, that uses IPR extensively, and thus relies heavily on the IPR regime of countries. Incidentally, it becomes crucial to look into India’s IPR legislation and analyse whether a favourable environment exists for the software industry to thrive, given the exemplary position IT holds in our country. One striking difference is where software can be patented in US, it can only be copyrighted in India. This is not a matter of undue concern, because India is not alone in this regard, as the European Model also follows a similar procedure. Furthermore, the concern further stands diluted, since any and all inventions arising from the copyrighted software is granted patent.
Keep in mind that software is only one of the many IT products. Another up and coming IT product is the Artificial Intelligence, which are seen in products, platforms and apps such as Siri, Alexa, Nest, Pandora, Uber, etc. Recently, Google developed and introduced anew AI-powered product for banks processing PPP loans, easing the tensions created due to the COVID-19 pandemic[1]. Thus, every day new and unexplored areas of IT are introduced, and while the big wigs and conglomerates, are guaranteed protection from the get-go, the start-ups and MSMEs are left somewhere down the road, which is where a timely governmental intervention would not be too out of place, particularly in an emerging economy.
Government intervention v/s Corporate freehand
There is a usual negative connotation to governmental intervention in creative spheres. The National Intellectual Property Rights (IPR) Policy[2] of 2016 was aimed at creating awareness regarding the importance of IPR,as a marketable financial asset and economic tool.Objective No. 5 of the Policy, directly relates to the commercialisation of IPR, creating the connection between investors and creators, clear assessment of the value of the creation, etc. The need to protect the creators from infringement of IPR, is highlighted in the 6th Objective, stressing the importance of enforcement and adjudication measures for ensuring the protection.
This undoubtedly reduces the ideal corporate haven, where competition and market forces, are the only regulators. Herein, “Survival of the Fittest” motto reigns supreme, causing the underdogs to fall behind in the dust. Indians are among the most creatively engaged populace in the world. With the Make in India initiative and the 2016 Policy, several MSMEs and start-ups have sprung to action, mainly dominated by the youth. A trend seen here is wherein, the start-ups of India, move their primary area of business or service, or even their head office to other countries, once a leg up is received in India. This trend, extremely prevalent in the IT industry,may be due to varying reasons, but the point still stands that some governmentalintervention in the form of aids, encouragement and incentives, would go a long way in reducing the brain drain.
The Needed Push
The
Indian IT industry, as it currently stands, is not even close to where it
should stand. The time to act is now. Our way of life has been disrupted, the
future is one where appropriate social distancing, for the sake of our health
would be the new normal. We have envisioned of a future, dominated by high-tech
living; it has always been our destination. The current pandemic, only pushed
it forward by several decades. The dominating force will be the IT industry in
this future, and the necessary tools for its growth lie in the robust IPR provided
protection, as they go together like ‘two peas in a pod’.
[1]https://www.zdnet.com/article/google-rolls-out-new-ai-powered-product-for-banks-processing-ppp-loans/
[2]https://dipp.gov.in/sites/default/files/National_IPR_Policy_English.pdf