India’s Fight for Equitable IPR Policies: A TWAIL Perspective

India has emerged as a key advocate for a more balanced intellectual property rights (IPR) framework, one that addresses the developmental needs of the Global South. This advocacy is deeply informed by the principles of Third World Approaches to International Law (TWAIL), an intellectual and political movement that seeks to challenge the colonial legacies ingrained in international law and push for systems of law that promote equity, justice, and empowerment for marginalized nations. Through TWAIL’s lens, India has critiqued the existing IPR regimes, showing how international legal structures—especially those governing intellectual property—often reinforce historical inequalities. This approach pushes for reform, advocating for systems that better serve the needs of developing countries, particularly with regard to access to essential medicines, protection of traditional knowledge, and the promotion of local innovation.

The Historical Context of IPR and TWAIL

The evolution of the international IPR regime has roots in colonial-era frameworks that were designed to benefit the developed world, while disregarding the needs of the Global South. The TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), in particular, has often been criticized for enforcing patent laws that impose undue burdens on developing countries, especially when it comes to accessing life-saving medicines. These agreements have often been seen as a mechanism to restrict the flow of essential resources and technologies, maintaining a system that benefits wealthier nations and exacerbates existing inequalities. From the perspective of TWAIL, these structures perpetuate the legacies of colonialism, hindering the development of nations that are already marginalized.

TWAIL’s Critique of IPR Frameworks

TWAIL scholars have sharply critiqued the international IPR regime on several fronts:

1. Critique of TRIPS: TWAIL scholars argue that the TRIPS Agreement is structured to protect the interests of developed nations, neglecting the socio-economic challenges faced by the Global South. The stringent patent laws under TRIPS often prevent access to crucial medicines and agricultural resources, entrenching global inequalities.
2. Access to Medicines: Central to TWAIL’s critique is the urgent need for mechanisms like compulsory licensing and parallel imports, particularly in the pharmaceutical sector. These mechanisms are seen as necessary to prevent monopolies from restricting access to essential drugs. The landmark Natco vs. Bayer case is a prime example of this, where India used compulsory licensing to make a patented cancer drug—Nexavar—affordable, prioritizing public health over corporate profits.
3. Decolonization of Knowledge: TWAIL also advocates for the protection of traditional and indigenous knowledge, which is often misappropriated under current IPR frameworks. India’s successful challenge to U.S. patents on turmeric and neem exemplifies this principle, where the country defended its traditional knowledge from being exploited without proper recognition or compensation.
4. Development-Oriented Policies: Another key aspect of TWAIL’s critique is the role of global institutions like the World Intellectual Property Organization (WIPO). TWAIL highlights how such institutions often prioritize commercial interests over the development needs of poorer nations. India as the first signatory of the Marrakesh Treaty, which facilitates access to published works for persons with disabilities, showcases a commitment to inclusive and development-oriented IPR policies.
5. Rejection of One-Size-Fits-All Models: Finally, TWAIL challenges the imposition of universal IPR standards across diverse economies. The movement advocates for policies that are adaptable to local contexts, emphasizing that one-size-fits-all solutions often fail to address the unique needs of developing countries.

India’s Approach to IPR Policy

India has taken a pragmatic approach to IPR policy, balancing the protection of intellectual property with the country’s developmental priorities. Key elements of India’s advocacy include:

1. TRIPS Flexibilities: India has consistently championed the use of TRIPS flexibilities, such as compulsory licensing, to ensure that essential medicines remain affordable. The Natco vs. Bayer case is a notable example of how India has used these flexibilities to reduce drug prices and make life-saving treatments accessible.
2. Protecting Traditional Knowledge: India has made significant strides in protecting its traditional knowledge through initiatives like the Traditional Knowledge Digital Library (TKDL). This library seeks to safeguard indigenous knowledge from being misappropriated, as seen in the successful revocation of a U.S. patent on turmeric, a substance with a long history of medicinal use in India.
3. Geographical Indications (GIs): India has also been active in promoting Geographical Indications (GIs), such as Darjeeling tea and Pashmina wool. These efforts help preserve local economies and cultural heritage, ensuring that the benefits of unique regional products are retained within the local communities.
4. Marrakesh Treaty: As the first signatory of the Marrakesh Treaty, India has demonstrated its commitment to promoting inclusive intellectual property policies. The treaty aims to facilitate access to published works for people with disabilities, illustrating India’s leadership in championing equitable access to knowledge.

TWAIL’s Influence on India’s Policy Making

The influence of TWAIL on India’s IPR policy is evident in the country’s focus on equity, justice, and the developmental needs of the Global South. Reflecting TWAIL’s objectives, India advocates for a more balanced IPR system that acknowledges the unique challenges of developing nations and offers greater flexibility to address local needs. India has consistently resisted the monopolistic tendencies of multinational corporations, particularly in the pharmaceutical sector, where high drug prices have led to public health crises. Through measures like compulsory licensing, India challenges strict IPR norms that prioritize corporate profits over human lives. Additionally, India has fostered solidarity among the Global South by aligning with other developing nations to advocate for reforms in international IPR governance. This collective effort reflects TWAIL’s vision of an inclusive and democratic global order that better represents the interests of the Global South.

Conclusion

India’s advocacy for a balanced IPR regime underscores its commitment to addressing the inequities embedded in international legal frameworks. By aligning its policies with the principles of TWAIL, India has played a crucial role in advocating for a more equitable global intellectual property system. Through landmark cases like Natco vs. Bayer, its leadership in the Marrakesh Treaty, and its protection of traditional knowledge, India continues to demonstrate the importance of reforming international law to better reflect the realities of the Global South. While challenges remain, India’s approach provides a model for other developing nations, offering a path towards a more inclusive and development-oriented IPR regime that balances innovation with public interest.

Written by Debapom, an Assessment intern at Intepat IP.