Intellectual Property Rights (IPR) Enforcement Training program in Kolkata, May 8-10, 2006
1. SUMMARY
The Indo-US Intellectual Property Rights (IPR) Enforcement Training program concluded in Kolkata from May 8-10, 2006. Consul General Henry Jardine addressed the inaugural assembly, which was attended by over 110 people. Along with CG Jardine, Deputy Chairman, Confederation of Indian Industry, Eastern Region, Biswadip Gupta; Regional Investigator, Microsoft, Tim Dwyer; and Attorney Advisor, USPTO, Jonathan Tracy participated in the opening remarks on the dais. Attendees from the automotive and fair market consumer goods industries, attorneys, customs and law enforcement officials and students actively engaged in the forum, which focused primarily on manufactured goods piracy. The lively Kolkata audience raised social issues and a concern for pricing vis-a-vis poor, rural Indians. However, the conference was very useful in building awareness, and to a degree, educating an audience that was not completely convinced that IPR enforcement was an issue.
Kolkata Indo-US Conference
2. In the May 8 opening session, CG Jardine provided several examples of IPR concerns relevant to Kolkata, including Kolkata's resurgent film industry, its recent medical advancements, and the growing number of pharmaceutical companies in the area. CG Jardine also reiterated the US position on IPR protection and urged participants to work with the GOI to reform enforcement procedures. CII's Biswadip Gupta complemented the opening remarks with a very supportive statement on the benefits of IPR protection for society in general. In a deviation from the program, Gupta, who chaired the opening session, allowed questions from the audience. The mood during the question and answer period was noticeably tense and CG Jardine fielded a number of pointed questions regarding US discriminatory pricing practices, data exclusivity, social justice, and the perceived monopolistic behavior of primarily American patent holders.
3. When speakers in Kolkata discussed the role of IPR in socio-economic development, the attendees interacted emotionally--challenging the merits of non-disclosure, trade secrets, and the US position that it is trying to create a level playing field. Commissioner of Customs, Airport and Air Cargo, Dr. Gautam Ray prodded questions from the audience, asking "why should we not/not protect IPR?" The result was mildly chaotic and Gautam subsequently intervened on several occasions to keep the atmosphere calm. Associate Director for Policy, Office of the IP Coordinator, USDOC, Vishal Amin gave convincing economic arguments for supporting IPR protection and enforcement. However, participants felt that the economic benefits of enforcement would not reach the "downtrodden" rural residents of India. Much of the discussion to follow returned to this topic but, by the end of the session, participants seemed to be more supportive.
4. The program featured a session on border enforcement procedures, chaired by Additional Director General of Vigilance, Customs and Central Excise, M. Chakraborti. Speakers included Dr. Ray and Embassy New Delhi DHS CBP Representative, Greer Rising. Approximately ten to fifteen customs representatives attended the session, which was followed by a panel discussion on IPR enforcement and the role of Customs in the fight against piracy. Customs officials actively participated in these nuts-and-bolts sessions, steering clear of the emotionally charged questions from earlier program discussions. Customs officials who spoke noted the manpower shortages currently faced in enforcement. Customs professionals in Kolkata emphasized that they can only intervene when directed and that laws need to be amended to empower Customs to act and that they are not inclined to do so due to a lack of familiarization about IPR issues in the field, no storage area for seized goods, and no reward incentives.
5. Kolkata law enforcement officials stated that, contrary to Customs, they intervene directly in copyright and trademark violations. Deputy Commissioner of Police, Kolkata, S.K. Pujari noted that law enforcement works with other agencies as well, regarding drug control orders and drug patent violations. He said that the Kolkata police conduct searches and seizures as part of its investigations. However, he added that manpower is an issue for the police force as well, and that the police can only do so much. He called for industry to work closely in the development of investigative evidence to streamline the process and reduce the force workload.
6. Pujari admitted that awareness is a big issue in Kolkata, and that the lower and middle classes purchase unauthorized copies knowingly because of their significantly lower cost. He said that stricter penalties were needed for repeat offenders caught selling pirated material, since IPR violations were not taken very seriously. Pujari also stated that companies need to spend more on IPR awareness than on advertising products. He said that the reasons some investigations fail include: lack of awareness, open cases, absence of written letters of complaint from the right holders, incomplete First Incident Reports (FIRs), non-specific FIRs, lack of legal cooperation from infringed companies, delays pending expert opinions, and the fact that agents of the infringed company often work directly with the counterfeiters themselves. Senior Manager, Spare Parts Commercial Vehicle Business Unit, Tata Motors, Ltd., T.N. Jha added that witnesses on site often become hostile, further complicating enforcement efforts.
7. The conference ended ceremoniously, with one participant proudly noting that while the program began in New Delhi on World Intellectual Property Day, it finished in Kolkata on the 145th birth anniversary of the famous Kolkatan, Ravindernath Tagore. As in other conferences, participants called for greater industry involvement, an increase in awareness programs, and more capacity for enforcement. Attendees asked for the US Embassy, ConGen Calcutta and CII to continue efforts at IPR enforcement and awareness training. Advocate and Partner, Law Mart, Meenakshi Mukherjee invited the Embassy and CII to give a half-day judicial session in the Kolkata High Court. Supervisory Special Agent, FBIHQ, US DOJ, Inez Miyamoto suggested providing a concurrent media awareness breakout session during any future training programs, to further define IPR terms that are often misrepresented by the media. Participants made a number of other noteworthy recommendations:
--Publish offender names in local newspapers --Include IPR in the judicial curriculum at judicial academies --Provide summary proceedings where possible to expedite court processes --Create more public/private partnerships --Create and share online databases --Develop patenting facilities that are available physically or online in rural areas --Launch a campaign to protect traditional knowledge --Develop fast-track IP courts --Facilitate ways to identify fakes --Engage industry in enforcement training and awareness efforts --Use external investigators to gather intelligence --Create reporting hotlines for infringement --Nominate anti-counterfeit leaders --Create an association of IP bars for attorneys --Break up the three-day workshops into three locations for three separate groups in each city (i.e. law enforcement, customs, court) --Develop an IPR Clearinghouse to provide information on infrastructure and human resources support, technology, intervention, and training.
8. Speakers at the conference included:
Biswadip Gupta, Deputy Chairman, CII, Eastern Region Tim Dwyer, Regional Investigator, Asia Pacific Digital Integrity Team, Law and Corporate Affairs, Microsoft Jonathan Tracy, Attorney Advisor, Office of Enforcement, US Patent and Trademark Office Henry Jardine, Consul General, American Consulate, Kolkata Sunil Misra, CII Dr. Gautam Ray, Commissioner of Customs, Airport and Air Cargo Vishal Amin, Associate Director for Policy, Office of the IP Coordinator, USDOC Dominic Keating, Patent Attorney, US Patent and Trademark Office Inez Miyamoto, Supervisory Special Agent, FBIHQ, US DOJ Dr. S.K. Mitra, Assistant Controller of Patents and Designs, Kolkata Patent Office Sunita Thawani, Chief Legal, JUSCO Dr. Amitava Chakravarty, Assistant Controller, Patents, Kolkata Patent Office S. Majumdar, Majumdar and Co. M. Chakraborti, Additional Director General of Vigilance, Customs and Central Excise Greer Rising, Embassy New Delhi DHS CBP Representative S.K. Pujari, Deputy Commissioner of Police, Enforcement, Kolkata T.N. Jha, Senior Manager, Spare Parts Commercial Vehicle Business Unit, Tata Motors, Ltd. Dr. Jayanta Chattopadhyay, Dabur Pharma India Rajendra Misra, Assistant Solicitor, ITC Justice Aniruddh Bose, Kolkata High Court Meenakshi Mukherjee, Advocate and Partner, Law Mart Saswata Dhar, Senior Legal Manager, Hindustan Lever P.D. Gupta, L.S. Davar and Co., Kolkata Mahesh Poddar, Chairman, Steel Wire Mfg. Association of India Kiriti Sengupta, IPS Coordinator, Indian Music Industry and Phonographic Performance Ltd.
9. Attendees and speakers agreed that this program exceeded the objectives described in the conference agenda; however, many individuals asked for more information on where to find IPR resources and how to effectively link with the relevant agencies handling IPR issues. A clear need for more outreach and training was apparent. Participants requested that more programs of this nature be conducted at the earliest possible opportunity and that, if possible, future programs be given with a user-specific focus in mind (i.e. separate programs for IT, judicial, law enforcement, customs, and industry).