Role of Judiciary with Special Reference to Global Intellectual Property Regime

Abstract

The instant essay explores the path already traversed by the Indian judiciary with respect to formulation and implementation of the several norms of the Intellectual Property regime. The international conscience of intellectual property developed with the TRIPs Agreement. However, exploration of certain specific areas of IPR led the authors to believe that Indian judiciary had already chalked down the plan of extending protection to several varities of intellectual property before 1994. The development, especially with respect to geographical indications and trade secrets, had been cataclysmic. Not only did the judiciary implement the laid down law, but had also fostered newer norms and attempted to bring clarity in the areas reeking with ambiguity. Broadening of ‘cause of action’, liberalizing the factor of ‘locus standi’, cultivating progressive outlook in awarding of ‘compensation’, laying down standards of software protection, defining ‘copyright’ in precise terms, and carving innovative laws for protection of geographical indications, have been some of the watersheds attained by the Indian judiciary. Newer legislations, guaranteeing protection of plant breeders, farmers and holders of traditional knowledge albeit indicate the dynamism of development, yet fail to capture the thought that, the Indian legal system, definitely being reactive machinery, rather than a pro-active one impairs the level playing field and incapacitates a certain population to share the benefit of the regime. Though the norms developed by the Indian courts, have contributed to the global IP regime and had set standards for the other developing countries, yet the authors opine that Art 51 of the Constitution should not be shrugged off as a mere Derective Principle of State Policy, but must be championed, by complying to the internationally valid norms, to realize the progressivity in all spheres.