Wt/tpr/M/313/Add. 1 31 July 2015
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Question 84: What is the maximum tenor, average tenor, and average premium rate for agricultural products covered under these policies? Reply: The question is not relevant. ECGC does not have any specific short term policy for agriculture products. 3.3 Measures Affecting Production and Trade 3.3.1 Incentives 3.3.1.3 Credit Policies Page 75, paragraph 3.164: The Secretariat’s Report mentions that India sets targets for priority-sector lending. India has modified its priority-sector lending program at various times in the past. Question.85: Please explain whether India has any plans to reduce or modify the requirements for this program and, if so, when will details of such plans be available. Furthermore, please explain why India has extended priority-sector lending requirements to banks with less than 20 branches. Reply: The revised priority sector guidelines were issued on April 23, 2015 based on the recommendations of an Internal Working Group (IWG) which was set up in July 2014 to revisit the existing priority sector lending guidelines. The report of the Group is available in the public domain at: https://www.rbi.org.in/scripts/PublicationReportDetails.aspx?UrlPage=&ID=810. The licence issued to Indian banks and foreign banks operating in India enables banks to carry out all banking activities. These extensive activities range from retail banking, wholesale banking, investment banking, credit card business, custodial services, foreign exchange business, clearing house membership, etc., on par. Thus, under their omnibus dispensation of the licence to carry out banking business, permission to carry out all types of commercial activities in India is available without differentiation between the types of entities, i.e., public sector banks/private sector banks/foreign banks. Therefore, there is no reason to keep foreign banks out of the purview of priority sector. Page 75, table 3.19: This table identifies the interest rates available to various sectors. Question.86: Please explain the current status of interest rates for textile exporters. Reply: RBI has deregulated the interest rates on advances sanctioned by Scheduled Commercial Banks, with effect from October 18, 1994 and these interest rates are determined by banks themselves with the approval of their Boards. The Base Rate system is applicable with effect from July 1, 2010. Accordingly, interest rate is applicable for all tenors of rupee export credit advances are at or above base rate. Under the rupee export credit interest rate subvention scheme formulated by Govt. of India, Ministry of Finance, interest subvention of 2% was extended to the Textile sector with effect from May 2013. Further, with effect from August 1, 2013, and till March 31, 2014, Govt. of India, Ministry of Finance, has increased interest subvention from 2% to 3%. However, the scheme has not been extended beyond March 31, 2014 by Govt. of India. We also note that table 3.19 shows preferential interest rates to exporters in 2014 (3 percentage points). Question 87: Please identify the specific processed agricultural products receiving the subsidized interest rate and the quantity of exports (by product) receiving the subsidized interest rate. Reply: The sectors/sub-sectors including processed agricultural product are decided by Government of India. In the year 2007 (up to March 31, 2008) under the rupee export credit interest subvention scheme, Government of India have specified to include processed cashew, coffee and tea as specific agricultural products under the processed agriculture product sector for subsidy. However, in the subsequent years, Govt. of India have not specified the products to be included in the processed agriculture product sector. However, the rupee export credit interest subvention scheme has not been extended beyond March 31, 2014 by the Government of India. 3.3.2 Competition Policy and Price Controls 3.3.2.2 Price Controls Page 79, paragraph 3.184: The Secretariat’s Report notes the introduction of the Drugs (Price Control) Order in 2013. Question 88: Please clarify the intention of Section 32 of the Order with respect to how the Order applies to new drugs developed and produced domestically versus new drug imports. Also, please clarify how many applications for exemption from the order under Section 32 have been made, by whom (foreign or domestic), and whether those applications were approved or denied. Reply: The objective of para 32 of the Drugs (Price Control) Order, 2013 is to provide and incentivize indigenous Research & Development (R&D) of medicines in the country whether undertaken by Indian or MNC company. The said clause is equally applicable for both domestic as well as for MNC’s for R&D effort in the country and not outside the country. Under Section 32 (iii), National Pharmaceutical Pricing Authority (NPPA) has received three applications from Indian companies out of which only one was rejected. 3.3.4 Government Procurement 3.3.4.2 Regulatory Framework Page 81, paragraph 3.191: The Secretariat’s Report notes that India is an observer to the WTO Agreement on Government Procurement (GPA), and that India is in the process of comprehensive government procurement reform that is in part intended to accommodate requirements of the GPA. We applaud India's efforts to bring its procurement system in line with GPA obligations. Question.89: When does India plan to accede to the GPA? Reply: India is in the process of formulating a comprehensive government procurement legislation. It is yet to be considered and passed by the Indian parliament. Once it is passed and implemented, issue of India acceding to GPA of the WTO would be examined. 3.3.5 Intellectual Property Rights 3.3.5.1 Introduction Page 84, paragraph 3.207: The Secretariat’s Report states that "India has an important economic interest in protecting the intellectual property rights (IPRs) of its creators and inventors, particularly in the creative and knowledge-based industries." Question 90: Please provide updated data regarding civil and criminal copyright, trademark, and patent infringement actions during this TPR review period. Despite the absence of a unitary law on trade secrets, please also provide data and information on civil and criminal court cases involving this important IPR during this TPR review period. Page 84, paragraph 3.209: The Secretariat’s Report notes that while "India has laws covering different aspects of IPRs that have been amended from time to time, including in order to take into account its TRIPS obligations [citation omitted], only the Copyright Act, 1957 has been amended since 2011." Reply: India has federal set up with civil and criminal cases filed in various courts- at the district level in case of criminal enforcement and trade secret violations and in the high courts. The information on civil cases is not maintained centrally. Information on criminal enforcement is compiled by the National Crime Record Bureau and it is available on the web site (http://www.ncrb.gov.in) Question.91: Please provide further details on the scope and application of Section 52(1)(a) of the Copyright Act (as amended) - a provision which deals with "private or personal use" exceptions. Reply: Section 52(1)(a) provides fair use exceptions for any work, not being a computer programme. The exception covers private or personal use including research, criticism or review of that work or of any other work; the reporting of current events and current affairs, including the reporting of a lecture delivered in public. The provision also explains that the storing of any work in any electronic medium for purposes mentioned above including incidental storage of any computer programme which is itself not an infringing copy shall not constitute infringement. 3.3.5.2 Patents Page 85, paragraph 3.213: The Secretariat's Report indicates that while the number of patent applications in India has been growing, the number of patents granted has decreased. The Report also notes that this may indicate a backlog is growing. Another possibility would seem to be that an increasing percentage of applications are being rejected, as opposed to granted. Question.92: Please provide information which would discern the actual cause(s) of the decrease in grants. Reply: The grant of Patents has increased over the past 3 years
Page 85, paragraph 3.214: The Secretariat's Report discusses e-enablement and modernization of the Indian Intellectual Property Office. The efforts undertaken by India in this regard are commendable. However, some have observed difficulty in using the inPASS system, for example, to retrieve patent application information online. Question 93: Are efforts being made or considered to improve the utility of such tools for the public? If so, please describe those efforts in detail. Reply: The InPass System for retrieval of patent application information online is now functioning properly. The present search system, InPASS allows a search to be conducted in all the Indian Patents and Patent Applications. This is a new tool developed by this office which allows a full-text search to be conducted in all the Indian Patents as well as Patent Applications. The search utility at present allows use of wild-cards, truncation as well as Boolean operators in all the fields of the ST.36 compliant data available with the Patent Office, thereby enabling the stakeholders to conduct an advanced search in the Indian Patent Database. This search tool also allows access to E-register of Patents giving the legal status details of all granted patents. There is also a tool that provides the status of a patent application. Further improvements planned/undertaken are as follows:
Page 86, paragraphs 3.216-3.217: The Secretariat’s Report discusses a Supreme Court of India judgment relating to Section 3(d) of the Patents Act. Question 94: In consideration of this decision and the new pharmaceutical patent examination guidelines which recite the language of the judgment, please provide information on applications which have been granted following a rejection under Section 3(d). For example: how many there are and what sort of evidence and/or argument examiners may consider persuasive as to significant enhancement of therapeutic efficacy over the closest prior art compounds so as to remove a 3(d) rejection after it is made. Reply: The cummulative data on examination and grant based on section 3(d) along with the the reasons/evidences etc. in respect thereof has not been compiled by the Office, as the details for each individual case is available in the IPO website. The examination, grant and rejections all are done strictly as per provisions of the Patents Act and the Guidelines ( which has also taken into consideration the Supreme Court decision in this regard) without any discrimination. Question 95: More generally, please provide information relating to the number of patent applications rejected under Section 3(d) by IPO examiners that concern patent applications outside of the pharmaceutical and biologics technology sectors. Please identify which sectors outside of pharmaceuticals, biologics, and chemicals, if any, have received rejections and how many have rejections have been made in each sector. Reply: The Cummulative data on examination and grant based on section 3(d) along with the the reasons/evidences etc. in respect thereof has not been compiled by the Office, as the details for each individual case is available in the IPO website Page 87, paragraph 3.219: The Secretariat's Report indicates that it is not entirely clear how India intends to address the issue of safeguards against diversion that are part of both the August 2003 General Council decision and the subsequent protocol amending the TRIPS Agreement. Question 96: Given that India has already implemented this type of compulsory licensing of pharmaceuticals, has India undertaken efforts or given consideration to anti-diversion measures, in light of the General Council decision and protocol for amending the TRIPS Agreement? Reply: Section 92A of the Indian Patent Act prescribes clearly that the Compulsory licence for export of patented pharmaceutical products shall be available for manufacture and export of such products to any country having insufficient or no manufacturing capacity in the pharmaceutical sector for the concerned production to address public health problems, only when the country under reference has already granted a compulsory licence or has, by notification or otherwise allowed importation of the patented pharmaceutical products from India. The controller shall on receipt of an application in the prescribed manner, grant a compulsory license solely for manufacture and export of the concerned pharmaceutical product to such country under such terms and conditions as specified and published by him. Application for compulsory license can be made under Form 17 of the Patents Act and Rules. However, no such compulsory licence has been granted in India so far. Page 88, paragraph 3.225: The Secretariat’s Report discusses issues of intellectual property and climate change by referencing India’s National Manufacturing Policy of 2012. Under Section 4.4 of the National Manufacturing Policy, India contemplates two methods for assisting companies with obtaining access to the latest patented green technologies: 1) establishing a Technology Acquisition and Development Fund to purchase relevant patents from rights holders for use in patent pools to license to interested companies; and 2) allowing the Technology Acquisition and Development Fund to "approach the Government for issue of a Compulsory License for the technology which is not being provided by the patent holder at reasonable rates or is not being worked in India to meet the domestic demand in a satisfactory manner". Although this section deals with two distinct methods for facilitating access to patented technologies, it is entitled "Compulsory licensing" which suggests that compulsory license is favored by the Government. Please confirm that India will not favor the compulsory licensing method over more market-driven methods, such as licensing agreements among private parties or between private parties and the Technology Acquisition and Development Fund, and that if the compulsory licensing method is used, it would be done only in a way that is fully compliant with TRIPS. In Section 4.4.3 of the National Manufacturing Policy, criteria such as "not being provided by the patent holder at reasonable rates" and "not being worked in India to meet the domestic demand in a satisfactory manner" may be used by the Technology Acquisition and Development Fund to approach the Indian Government for a compulsory license. Question 97: Are these terms broader than the criteria contained in Article 31 of TRIPS (e.g., "reasonable commercial terms and conditions")? Please provide more detail on the terms cited in the National Manufacturing Policy. Reply: The terms would be interpreted in accordance with the Indian Patent Act which is consistent and compliant with TRIPS. 3.3.5.4 Industrial Designs Page 92, paragraph 3.238: The Secretariat’s Report expresses a concern that copyright protection may be lost for three-dimensional forms of artistic works that are created via industrial processes pursuant to Section 15(2) of the Copyright Act. Please explain the following: Question 98: Whether such three-dimensional forms of artistic works, if created via industrial processes, would be protectable under the Designs Act? Reply: Section 2(d) of the Designs Act, 2000 which defines the term "design" mentions that a design does not include any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957. Question 99: If they are so protected, would failure to register the work under the Designs Act affect copyright protection for such three-dimensional forms of artistic works once more than 50 copies have been created via industrial processes? Reply: Section 15(1) of the Copyright Act, 1957 states that "Copyright shall not subsist under this Act in any design which is registered under the Designs Act, 2000". However, Section 15 (2) of the Act provides that "Copyright in any design, which is capable of being registered under the Designs Act, 1911, but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person". Question 100: If failure to register does not affect such copyright protection, would Section 15(2) nonetheless serve to affect copyright protection for the three-dimensional form of artistic work if more than 50 copies were created via industrial processes? Reply: Design Act is meant for protecting industrial designs which are created by industrial process. It gives a term of protection for 15 years. Artistic work as defined under Section 2(c) read with section 14 of the Copyright Act, 1957 does provide protection to artistic work in any material form with two or three dimensional form. But here section 15 insists that such artistic work has to be created by human hand not by industrial process. By not registering a design a person cannot be rewarded with a registration of artistic work produced more than fifty times by industrial process with life plus 60 years under copyright. Therefore, only handmade artistic works/designs are protected under copyright if not registered under the Design Act. 3.3.5.5 Copyright Page 93, paragraph 3.242: Question 101: Please describe what impact the 2012 amendments to India’s Copyright Act have had on the rate or results of copyright infringement actions. Reply: There is no such data available which show the exact impact of copyright amendment on copyright infringement action. However, different amendments have been made to deal with infringement in more strict sense: Three new Sections — 2(xa), 65A and 65B — deal with DRM and TPM have been inserted. Section 53 (importation of infringing goods)has been completely restructured, and it now enables owners of any works or performance embedded in works to request -- by written notice to the Commissioner of Customs (or other authorized officer) -- that infringing copies be treated as prohibited goods for not more than one year under certain circumstances, by following the procedure laid down in the Section. Section 11 has been substantially amended — the Copyright Board is to comprise a Chairman and two other members (as opposed to ‘not less than two or more than fourteen other members’ as was earlier the case). Page 93, paragraphs 3.242/3.243: Question 102: With regard to the 2012 amendments to India’s Copyright Act, please describe how circumvention of technological safeguards is currently addressed under the Act, as amended. Reply: Section 65 A of the copyright Act, 1957 as amended in the 2012 r/w Rule 80 of Copyright Rules, 2013, criminalize the circumvention of effective technologies measures , punishable with imprisonment which may extend to two years and fine. Sub section 2 of Section 65A defines certain circumstances where this section cannot be invoked. Page 93, paragraph 3.244: The Secretariat's Report notes that India’s Copyright Act provides for "exclusive rights in reproduction, circulation, communication to the public and rental rights." Regarding the scope of such rights with respect to the compulsory translation license provisions under Section 32 of the Copyright Act, please respond to the following: Question 103: Indian works are excluded from the works for which a compulsory license may be issued three years after publication for the purposes of teaching, scholarship or research. Please comment on the relationship between this provision and national treatment provisions of the Berne Convention. Reply: The Berne Appendix to the Berne Convention (1979 Revised) provides for compulsory licenses in respect of translation and reproduction for developing and least developing countries. India being a member of the Berne Convention and a developing country is entitled to exercise the above provision. This is the discretion of the Copyright Board within the ambit of applicable laws and facts and circumstances of case to case basis. Question 104: What standard is used to determine whether granting a hearing to the copyright owner before the Copyright Board is "practicable"? Reply: The Copyright Board being a quasi judicial body is legally obliged to grant an equal opportunity of hearing to all the concerned parties in a particular case matter filed before it. There is no question of any "practicability". The compulsory licence provisions dealt in the Copyright Rules, 2013 facilitate granting of hearing to any interested person. Question 105: What standard is employed by the Copyright Board to determine whether to grant such a compulsory translation license? Please comment on the relationship to Berne Article 9(2). Reply: The clause (2) of Article 11 of the Berne Convention provides that it shall be matter of legislation in the countries of the Union to determine the ‘conditions’ under which the exclusive rights of authors authorizing their works for broadcasting. The word ‘conditions’ here means non voluntary licence or compulsory licence. The compulsory licence provisions in the Copyright Act and the Rules framed thereunder provide compulsory licence which is one of the limitations to the exclusive right of copyright of the right owner relate to a number of important considerations such as "market failure" or "abuse of the monopoly rights" on the following grounds: i.Refusing to grant licences to copyrighted works; ii.Imposing unreasonable terms on licences thereby discouraging voluntary licensing; iii.Imposing restrictive conditions on the use, sale or lease of the copyrighted works thereby prolonging the monopoly rights even after the copyright has expired. Since all the provisions of Compulsory license under the Act provide compensation by way of royalties to the right holder these provisions are in compliance with Article 9(2) of the Berne Convention. Question 106: Section 32B states that such compulsory licenses can be terminated if the copyright owner, or its authorized representative, "publishes a translation of such work in the same language and which is substantially the same in content at a price reasonably related to the price normally charged in India for the translation of works of the same standard on the same or similar subject." What standard is applied for making the determinations required under this Section, and what entity makes the final decision? Reply: This is the sole discretion of Copyright Board to decide the issue as per the conditions provided under Section 32B of the Act. Question 107: Could India please provide further details on the compulsory license process, including the means and manner in which remuneration is set, as well as collected for and distributed to foreign (and domestic) copyright owners? Reply: The details of on the compulsory license process are provided in the Copyright Act and the Rules framed thereunder. The manner of determining royalties is also provided under the licenses chapter in the Copyright Rules. Page 93, paragraph 3.245: The Secretariat’s Report notes that the Copyright Board may issue a compulsory license for reproduction of any published work withheld from the public and we understand that the 2012 Copyright Rules may address some of these issues as well. Please explain the following: Question 108: How many applications for such compulsory licenses have been received? Reply: After enactment of the amended Copyright Act in the year 2012, no application for compulsory license in respect of published work withheld from public has been received. Question 109: Have any such compulsory licenses been issued to date? If yes, how many, and upon what terms? Reply: No such license is issued. Question 110: What standard is employed by the Copyright Board to determine whether to grant such a compulsory license? Please comment on the relationship to Berne Article 9(2). Reply: Same as in reply no. 105 Question 111: What standard does the Copyright Board use to determine whether (a) the terms offered by a copyright owner to grant a license to perform the work in public or communicate work are reasonable, or (b) the copyright owner’s refusal to grant a license to republish the work, perform the work in public or communicate the work is reasonable? Reply: Same as in reply no. 105 Question 112: Are there any grounds upon which the Copyright Board may refuse, or the copyright owner may oppose, the granting of such a compulsory license? Reply: It is sole discretion of the Copyright Board to decide the issue of granting a compulsory translation license based on the facts and circumstances of the concerned case and within the ambit of the Copyright Act/Rules. Question 113: Could India please provide further details on the compulsory license process, including the means and manner in which remuneration is set, as well as collected for and distributed to foreign (and domestic) copyright owners? Reply: Same as in reply 105 and 107 Page 93, paragraph 3.245: The Secretariat’s Report also notes that the Copyright Board may issue a compulsory license to broadcasting organizations for the broadcast or public performance of previously published literary or musical works and sound recordings under Section 31D of the Copyright Act, and we understand that the 2012 Copyright Rules may address some of these issues as well. Please explain the following: Question 114: Have any such compulsory licenses been issued to date? If yes, how many, and upon what terms? Reply: After enactment of the Copyright amendment Act in the year 2012 no compulsory licenses have been issued so far. Question 115: Do such compulsory licenses apply to pay television programming? Reply: Section 31 of the Act and Rule 6 of the Copyright Rules are applicable to pay television programming. Question 116: What standard is employed by the Copyright Board to determine whether to grant such a compulsory license? Please comment on the relationship to Berne Article 9(2). Reply: Same as in reply 105. Again this is the discretion of the Copyright Board within the ambit of applicable laws and facts and circumstances of case to case basis. Question 117: Are there any grounds upon which the Copyright Board may refuse, or the copyright owner may oppose, the granting of such a compulsory license? Reply: This is the discretion of the Copyright Board within the ambit of applicable laws and facts and circumstances of case to case basis as per the provisions of the Act/Rules. Question 118: May the copyright owner require any restrictions (such as temporal or geographic restrictions) upon such compulsory licenses (i.e., could a film studio, as the copyright rights holder, require that such a license not be granted while a movie is still in its first run in movie theaters)? Reply: This is the discretion of the Copyright Board within the ambit of applicable laws and facts and circumstances of case to case basis as per the provisions of the Act/Rules. Question 119: Could India please provide further details on this compulsory license process, including the means and manner in which remuneration is set, as well as collected for and distributed to foreign (and domestic) copyright owners? Reply: Same as in reply no. 105 and 107 Question 120: Finally, we understand that currently there are two lawsuits challenging the statutory licensing provisions; one case challenges Sections 17, 18, 19, 31, and 33 and the second challenges Section 31D. Please provide an update on the procedural posture of both cases. Reply: These cases are still sub-judice before concerned High Courts and as arguments before the court have not been finalized there is no final verdict. Page 93, paragraph 3.246 Question 121: The Secretariat's Report notes that registration of copyright collecting societies has been made mandatory. Please provide an update on the process to register these organizations. How many applications have been received? Which societies have been registered? What is the timeline for handling of such applications? Reply: The process to register the copyright societies by the Central Government is provided in detail vide Rule 44 to 49 under chapter XI of the Copyright Rules, 2013. A few no of applications have been received by the Central Government through the Registrar of Copyrights for registration of Copyright Societies after enactment of the amended Act. However, two societies are registered – (i) Indian Singers Right Association (ISRA), (ii) Indian Reprographic Rights Organization (IRRO). Normally, 60 days time period is required to take a final decision on such applications. Page 93, 3.247: The Secretariat’s Report notes that "[n]otice and take-down procedures have been introduced to make internet service providers otherwise liable." Please describe the notice and take-down procedures to be followed by a copyright owner seeking removal of copyrighted material. Also, we note that Section 52(1)(c) states that the "person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access." Question 122: Has India adopted expedited procedures to allow a copyright owner to obtain a court order barring continued access within 21 days? If not, what is the average time it takes to obtain such an order through normal court processes? Reply: Depending of the facts and circumstances of each case, the court will expedite the procedures to allow a copyright owner to obtain a court order within 21 days. 3.3.5.7 Protection of New Plant Varieties Page 94, paragraph 3.251: The Secretariat’s Report discusses India’s Protection of Plant Varieties and Farmers' Rights Act. It indicates that the Act conforms to the International Union for the Protection of New Varieties of Plants (UPOV) 1978 Convention. Question 123: Does India plan to become a party to that Convention in order to obtain the supportive and cooperative benefits of UPOV membership? Reply: The Govt of India has applied for its membership to the UPOV as per UPOV Convention 1978 in 2000. 3.3.5.8 Trade Secrets and Test Data Protection Page 95, paragraph 3.258: The Secretariat's Report discusses India’s trade secret protection on the basis of principles of equity and common law. Question 124: Please identify how many cases were prosecuted in the last year and provide the identified cases. Also, under what principles of law does India protect against disclosure of trade secrets by third parties not party to any formal or informal contracts or confidence, and can examples of such cases be provided? What types of information may be protected as trade secrets under Indian law? What, if any, responsibility do enterprises have for protecting trade secrets from unauthorized disclosure? Reply: India has federal set up with civil and criminal cases filed in various courts - at the district level in case of criminal enforcement and trade secret violations and in the high courts. The information on these cases is not maintained centrally. India does not have a separate legislation governing trade secret protection. It relies on principles of contract law, and common law, to regulate protection of trade secrets. Indian courts have upheld trade secret protection on basis of principles of equity, upon a common law action of breach of confidence, as well as breach of contractual obligation. The remedies available to the owner of trade secrets is to obtain an injunction preventing the licensee from disclosing the trade secret, return of all confidential and proprietary information and compensation for any losses suffered due to disclosure of trade secrets. Indian courts have relied on the principles laid out in the Saltman Engineering case to uphold the existence of an equitable doctrine of confidence, independent of contract to assess whether breach of confidence could have occurred. The case of John Richard Brady, where the defendant who had allegedly misused the confidential information entrusted to them by the plaintiff, tried to escape liability by pleading that the contract was neither concluded nor was it acted upon by the parties. The High Court of Delhi ruled that it must enforce the general rules of equity and restrain the breach of confidence. Thus, the Court invoked a wider equitable jurisdiction and awarded injunction even in the absence of a contract. The Delhi High Court ruling in John Brady and the Saltman rationale have recently been applied by the Karnataka High Court in the case of Homag India. Confidentiality and non-competition covenants are enforceable under Indian law and offer another line of defense in enabling protection of trade secrets and confidential information in India. Business contracts therefore typically provide for contracts that require the Indian service provider to (i) maintain the customer’s trade secrets and confidential information in strict confidence not only during the term of the contract but also after termination, (ii) permit controlled access on a "need to know" basis only, including the customer's right to enforce such obligations directly against service provider personnel having access to the customer’s information, and (iii) be contractually responsible and liable for any breach of confidentiality obligation or misuse of such information by itself, its subcontractors, employees or former employees. Effective clauses in a contract provide that a service provider’s failure to comply with the confidentiality obligations would result in the service consumer to immediately terminate the contract and also claim damages. Confidentiality and non-compete clauses in employment contracts are also common. India's Information Technology Act has also been rapidly evolving in order to grant protection for theft or misappropriation of electronic data. The Act provides for compensation, fine and imprisonment. Recently, the Department of Information Technology in Maharashtra ordered compensation of Rs. 60 lakhs for misappropriation of electronic data by an ex-employee of the complainant company and his new employer. Dealing with electronic crimes is an evolving area, and cases such as this indicate the ability of the legal and administrative machinery to deal with the same. Penal action may be considered under the Indian Penal Code (IPC) for criminal breach of trust by an employee, when such employee misappropriates or dishonestly disposes of property entrusted to him, or which is under his control. Such a person can also be held liable for cheating, when he acts with the knowledge that he is likely to cause wrongful loss to a person whose interest he was legally bound (by contract or law) to protect. In both cases, the offence can be punished with fine or with three years of imprisonment or both. Pages 95-96, paragraph 3.259: The Secretariat’s Report discusses compensation and damages ordered by Indian courts for the disclosure of trade secrets. Question 125: Please identify the guidelines used by the courts to determine the quantum of compensation. Reply: The quantum of compensation depends on the facts of the case as placed before the courts Page 96, paragraphs 3.261-3.262: The Secretariat’s Report discusses legislation for pharmaceutical test data protection and the TRIPS provisions on protection of such data from unfair commercial use. Question 126: Please indicate India's plans to implement unfair commercial use protection for undisclosed information relating to pharmaceutical products utilizing new chemical entities. Please also explain India's plans to implement such protection for undisclosed information relating to agricultural chemical products utilizing new chemical entities. Reply: Article 39.3 relates to the specific case when data pertinent for seeking approval of the authority is shared with the marketing regulator. The text of this Article does not specifically state that member countries would need to comply with the requirement of data exclusivity. It only states that the regulator will need to protect it from unfair commercial use. Therefore, no additional obligations which are not present in text can be interpreted. The obligation on the authorities is to keep the test data secret and not allow it to be accessed by third parties through unfair means. India complies completely with its obligations under Article 39.3 of TRIPS. There is no decision yet on this issue 3.3.5.9 Enforcement Page 98, paragraph 3.269: The Secretariat’s Report notes that the state Governments of Andhra Pradesh, Kerala, Maharashtra, and Tamil Nadu introduced legislation addressing video piracy. Question 127: While we understand that these states are enhancing enforcement against video piracy, can India confirm it is considering a national provision to prohibit the copying of film from a cinema screen, also known as camcording? If so, please provide updated information for passage of such a provision. Reply: Enforcement of copyright rest with State Police therefore the states have devised new mechanisms to deal with video piracy. Section 52A of the Act provides protection against video piracy. Combined reading of the above section 52A along with section 14, 51, 55 and 63 provide adequate legal protection against unauthorized camcording in cinema halls. 4 TRADE POLICIES BY SECTOR 4.1 Agriculture 4.1.1 General Policy Framework 4.1.1.2 Measures Affecting Exports Page 101, paragraph 4.14: The Secretariat's Report states that "export prohibitions and export quotas are notified annually." The United States notes that India has never notified an export restriction to the WTO. Question 128: Therefore, please indicate where the notifications referred to by the Secretariat can be found. Reply: Such measures are notified by the Directorate General of Foreign Trade. India has been filing its WTO notifications as per the requirements of the relevant rules and is in the process of collecting information for others that are due. Page 101, paragraph 4.15: The Secretariat’s Report notes that minimum export prices are applied to edible oils, onions, Bangalore roses, and Krishnapuram onions and potatoes. However, the United States notes that these are not the only commodities for which India maintains minimum export prices. For example, on October 30, 2013, the Cabinet Committee of Economic Affairs reduced the minimum export price of wheat from $300 per metric ton to $260 per metric ton. Question 129: Please clarify whether minimum export prices exist for other commodities than those listed in the Secretariat’s Report. If so, for what commodities and at what price? Reply: As of now, MEP exists for edible oils in consumer packs, onions, Bangalore roses and Krishnapuram onions only. 4.1.1.3 Internal Measures Page 102, paragraph 4.17-4.18: he Secretariat’s Report states that "[a] key objective of India's domestic agricultural policy is to ensure stability of food supply and income support for the nearly 60 percent of the population that is dependent on agriculture." The stated purpose of the Minimum Support Price (MSP) system is to protect the "small and marginal" farmers growing "essentially staple" food crops from market volatility. With this in mind, please reply to the following: Question 130: How does India officially define "small and marginal" farmer? Reply: Details can be seen in Agriculture Census of India (http://www.agcensus.nic.in/agcen2010-11.html) Question 131: Does this definition distinguish contracted agricultural labor from small and mid sized land holders or owners? Reply: The basic unit of information in Agriculture Census is the operational holding which is distinct from ownership holding. The operational holder may or may not the land owner. The concept of operational holding adopted in agriculture census does not include those holding which are not operating any agriculture land and engaged exclusively in livestock, fishing, labor activities etc. Thus, definition does not distinguish contracted agriculture labor from small and mid sized land holder or owners. Question 132: Please provide evidence to show that India's subsidy programs are indeed reaching the intended target of "small and marginal farmers". Reply: The subsidy programs are reaching the targeted farmers because of the effective design and delivery mechanism put in place by the Government. Question 133: Please provide data to show that, with increases in MSPs, income levels among "small and marginal" farmers are also increasing. Reply: The Minimum Sport Price (MSP) is fixed to protect farmers including "small and marginal" from distress sale of their crops. Thus, the prime objective of MSP is to prevent exploitation of farmers and not to incentivize production. Question 134: Please provide data to show that Indian subsidy programs are reducing price volatility in the market. Reply: Various support programmes for agriculture prevent distress sales and provide some returns over costs, build stocks for food security programmes, improve agricultural productivity, build capacity for better agricultural practices. All these measures contribute to not only reducing vulnerability to price volatility but also keep prices stable. Question 135: Please explain how India makes decisions to sell from stock through open market sales, including for export. Reply: Sale of stocks through open market operations is undertaken with the objective of price stabilization. Question 136: Will the Government of India reaffirm its commitment to refrain from subsidizing exports? Reply: India is committed to elimination of all kinds of export subsidies as per the Doha mandate and Hong Kong Ministerial Decision. Question 137: For each covered commodity referenced in Table 4.3, please provide the volume of production in 2010-11 through 2014-15 and the fixed external reference price for each commodity from India’s AGST document. Reply: The information about production of different crops from 2010-11 to 2014-15 is given in Annex-I. For almost 30 years (since the 1986-88 base period), India has notified MSPs for more than 20 commodities. According to the Secretariat’s Report, the objective of notifying the MSP for all of these commodities is to protect farmers from market volatility. However, India does not notify the price supports for most of these commodities to the WTO Committee on Agriculture (Committee). In the Committee, India has claimed that there is no benefit to farmers for those commodities not notified. Question 138: Therefore, please explain the rationale for continuing to announce MSPs for those commodities where no notified benefit has accrued to farmers, in some circumstance, since 1995. Reply: Market support prices are for providing minimum remunerative price to the farmers to prevent them from resorting to distress sale. For most of the commodities under MSP, generally market prices rule above MSP and, therefore, Government is not required to make any procurement in respect of these commodities. Page 102, paragraphs 4.18-4.19: The Secretariat's Report notes that the Indian Government authorized the export of 4.5 million metric tons of wheat 2012-13 and 2 million metric tons in 2014-15. These quantities are large enough to make India one of the largest wheat exporters in the world. However, the stated objective of the program is to "protect the small and marginal farmers." With this in mind, please reply to the following: Question 139: Can India explain how a program targeted to the "small and marginal farmer population" results in such large quantities of production that India must turn to the international market, becoming a major exporter? Reply: There is no linkage of MSP with the exports and an overwhelmingly large number of Indian farmers are low income resource poor. The production pattern in India is dependent predominantly on the weather and as such there are times when production exceeds domestic consumption, at the same time there are times when the production hardly covers domestic demand. It would be seen that during the past 5 – 6 years there has been almost no export of Rice from the stocks of Food Corporation of India. As far as exports of Wheat from FCI stocks are concerned, this is done through an open and transparent bidding process. Question 140: Can India explain how it ensures that exports, which result from increasing MSPs and open market sales, do not negatively impact the livelihood of farmers of those commodities in least-developed countries? Reply: The purpose of MSP is to prove minimum remunerative price to the farmers to prevent them from resorting to distress sale. Open market sales are also targeted towards domestic markets with restriction on exports; hence there is no adverse impact on the farmers in the least developed countries. Question 141: The Secretariat's Report is unclear on how prices are set for domestic open market sales, and to whom grains are sold. Could India please clarify? Is the Government of India taking measures to ensure that open market sales of wheat and rice do not enter export markets? Reply: For sale in domestic market, the Government sets reserve price which serves as a bench mark price and the sale is conducted through open tenders in auction mode to the higher bidders. Any bulk buyer (buyers of above 100 MT) can make purchase in these auctions. There is restriction on export of wheat purchased by the buyers under the domestic open market sale scheme. Page 102-103, paragraph 4.20: The Secretariat's Report notes that according to India law, sugar mills are required to purchase sugar at a set minimum price. In addition, several Indian state governments augment the support price by 35-40 percent, which sugar mills are required to pay sugarcane farmers regardless of market prices. The program has encouraged sugarcane production and has resulted in large stock accumulations in India. With growing stocks, the government has announced export incentives to reduce domestic supply. Notwithstanding this policy, India does not notify its price support for sugar to the WTO Committee on Agriculture. Question 142: Please explain the basis for not notifying to the WTO any form of sugar support in India’s domestic support notification. Reply: The support (if any) will be notified in the notifications as per the requirements of the WTO Agreement on Agriculture in due course. Page 103, Table 4.3: The table in the Secretariat’s Report lists published MSP support prices for a number of commodities in 2010-11 and 2014-15. The listed "Cotton (medium staple)" minimum support price, though accurate for one variety, does not reflect the cotton production, utilization, and international trade situation occurring in India which generally includes longer-staple cotton varieties like Shankar-6 which has a higher MSP of 4000 Rs per quintal. Question 143: Please explain why India selected the medium staple cotton MSP for reference in the Secretariat's Report. Reply: The Government announces MSP for both medium and long staple cotton. Page 103, paragraph 4.21: The Secretariat's Report notes that agencies of the Indian government purchase perishable products, including horticultural crops, not covered by the MSP at a market intervention price (MIP) when prices decline. Question 144: Please identify and provide a detailed description of all MIPs in the period covered by this report, noting the specific quantities procured by government agencies. Also, please provide the appropriate reference describing where exactly these programs are reported in India’s domestic support notifications. If they were not reported, please provide the basis for their exclusion. Reply: The information is available in the annual report of Ministry of Agriculture and Cooperation and can be accessed at http://agricoop.nic.in/documentreport.html. The Market Intervention Scheme (MIS) is implemented in order to protect the growers of these commodities from making distress sale in the event of bumper crop when there is glut in the market and the prices tend to fall below economic levels/cost of production. Any support provided through MSP/MIP is notified to the WTO in case there is any procurement by the government agencies. Page 103, paragraph 4.22: The Secretariat's Report mentions the National Food Security Act that was passed by Parliament in 2013. Please explain the following: Question 145: What central government agency oversees the national food security program, including the disbursement of funds and otherwise management of implementation of the program? Reply: The Department of Food and Public Distribution directly monitors the food security programmes with the help of State Governments and food subsidy is released by the Department directly to the FCI and State Governments (only Decentralized Procurement States). Question 146: Does that agency publish a regular consolidated report describing disbursement for all states? Reply: Details of subsidy released to FCI and State Governments are updated from time to time on the website of the Department of Food & Public Distribution. Question 147: How is implementation of the National Food Security Act progressing? Reply: So far, implementation of the National Food Security Act, 2013 has started in 12 States/Union Territories (UTs) viz., Bihar, Chandigarh, Chhattisgarh, Delhi, Haryana, Himachal Pradesh, Karnataka, Madhya Pradesh, Maharashtra, Punjab, Rajasthan and West Bengal. Remaining 24 States/Uts are at different levels of preparedness to implement the Act and they are being persuaded for its early implementation. In the meanwhile, allocation of subsidized food grains under existing Targeted Public Distribution System (TPDS) is continuing to these States/Uts. Question 148: Has the program been more or less expensive than initially envisioned? Reply: The expenditure on food subsidy for implementation of National Food Security Act, 2013 was estimated on the basis of 2014-15 costs. As these costs change, financial implication of the Act may also change. The Act is however yet to be implemented in all States/Uts. Final financial implication of the Act will be known only after it is implemented throughout the country. Page 104, paragraph 4.22: The Secretariat's Report notes that the cost of the food subsidy will be 1.1 percent of Indian GDP in 2013/14 or approximately Rs. 0.9 trillion and increasing to Rs. 1.15 trillion in 2014/15 under the new National Food Security Act. The food subsidy is composed of several components, including (but not limited to) the acquisition cost of rice, wheat, and coarse grains, storage, and the distribution of these commodities to targeted consumers. With this in mind, please reply to the following: Question 149: Please specify the portion of the food subsidy budget represented by the acquisition of commodities at the MSP. What are the specific individual values for wheat and rice individually? Reply: Food subsidy is provided to FCI and State Governments for undertaking procurement of food grains, their storage and movement and finally their distribution to the beneficiaries of food security programmes. Food subsidy is calculated accordingly after taking all the costs into account and deducting the sales realization. Question 150: Please specify the portion of the food subsidy budget represented by storage and distribution of the commodities. What are the specific individual values for wheat and rice? Reply: Food subsidy is provided to FCI and State Governments for undertaking procurement of foodgrains, their storage and movement and finally their distribution to the beneficiaries of food security programmes. Food subsidy is calculated accordingly after taking all the costs into account and deducting the sales realization. Question 151: Please specify the portion of the food subsidy budget represented by selling these commodities at subsidized rates or for free to targeted beneficiaries as compared to the price the government would have otherwise received from selling commodities on the open market. Reply: Only a limited quantity of food grains, based on market demand is sold in the open market by FCI through auction and the rate fetched in every auction varies. Therefore, no accurate apportionment of subsidy between the two modes of sale of food grains is possible. Page 104, paragraph 4.23: The Secretariat's Report notes a change in the delivery of food grains for food security. According to the High Level Committee (HLC) set up by India, "the storage and logistical infrastructure required to procure and distribute food will be considerable." The HLC has suggested that with leakages of between 40% and 50% in the Public Distribution System and up to 70% in some States, implementation of the food security program should be deferred unless such provisions on identification and grievances have been put in place. The HLC report also indicates that: (i) not more than 6% of the total agricultural households in India (90.2 million) directly benefitted from the procurement of wheat and rice under MSP; and (ii) stocks have been hugely excessive, even though India has a shortage of storage capacity. Question 152: With this in mind, has India officially accepted the findings of the High Level Committee’s report? Does India intend to follow the recommendations of the HLC's report to restructure the Food Corporation of India, outsource warehousing, and leave procurement and stocking to the states? Furthermore, has India considered the HLC recommendation to introduce cash transfers in the PDS as a way to more effectively help the poor, avoid market distortions, and come into line with international practices? Reply: Government has decided to implement some of the recommendations of HLC which will bring in cost efficiency in operations of FCI and will improve its functioning. The status of implementation of the recommendations will be available in due course. Page 105, paragraph 4.26: The Secretariat's Report states that the central government provides a subsidy to the Food Corporation of India "to keep buffer stocks of wheat and rice as a food security measure." Question 153: Please provide the current volume of buffer stock, as well as the normal volume, for wheat and rice, for this purpose. Reply: Details are available on the website of the Department of Food and Public Distribution of the Government of India. Page 105, paragraph 4.27: The Secretariat's Report notes that India's subsidization of fertilizer has resulted in excessive use of fertilizers and resulted in soil degradation. In 2010/11, the United States notes that fertilizer subsidies totaled more than $12 billion. With this in mind, please reply to the following: Question 154: Please provide the annual total value of fertilizer subsidies for the period covered by this report. Reply: Details of subsidy payments for different fertilizers for the last three years are available in relevant Budget documents of the Government of India (www.indiabudget.gov.in). These will also be notified to the WTO in due course. Question 155: What steps is India taking to remedy the excessive use of fertilizers? Reply: Government is advocating soil test based balanced use of fertilizers in conjunction with organic sources of plant nutrients like Farm Yard Manure (FYM), compost, biofertilizers and green manuring. Soil Health Management (SHM) programme under National Mission for Sustainable Agriculture-(NMSA) assists in promoting soil test based balanced and judicious use of fertilizers. Soil Health Card scheme is introduced to issue soil health cards to all farmers in the country. Soil Health Card will provide information to farmers on nutrients status of their soil along with recommendation on appropriate dosage on nutrients to be applied for improving soil health and' its fertility. The Secretariat Report notes that irrigation, electricity, diesel, and seed subsidies are provided. Question 156: Please provide the annual total value for each of these subsidies for the period covered by this report. Reply: Details of the subsidies are available in India’s budget documents for the relevant years at (www.indiabudget.nic.in). Page 105, paragraph 4.28: The Secretariat's Report indicates that India sets targets for priority sector lending to ensure that banks provide credit. Question 157: Please provide more details on how this program is implemented, what the priority sectors are, and how they are determined. Reply: Priority sector refers to those sectors of the economy which, though viable and creditworthy, may not get timely and adequate credit in the absence of this special dispensation. Typically, these are small value loans to farmers for agriculture and allied activities, micro and small enterprises, poor people for housing, students for education and other low income groups and weaker sections. Those sectors which are able to get timely and adequate credit would not qualify for priority sector status. Priority sector activities have to be carried out by banks as a part of their normal business operations. On the part of the Reserve Bank, one important facilitation in this regard has been that pricing of all credit has been made free. The revised guidelines are issued based on the recommendations of an Internal Working Group (IWG) which was set up in July 2014 to revisit the existing priority sector lending guidelines. The report of the IWG was placed in the public domain inviting comments. The recommendations of the IWG were examined in the light of the comments/suggestions received from Government of India, banks, and other stakeholders and revised guidelines were issued on April 23, 2015. The details of the eligible priority sector are available in our circular on Priority Sector Lending-Targets and Classification FIDD.CO.Plan.BC.54/04.09.01/2014-15 dated April 23, 2015. (Available at https://rbi.org.in/Scripts/NotificationUser.aspx?Id=9688&Mode=0) Page 109, footnote 42: The Secretariat's Report references the "Make in India" campaign and includes a web link to more information. Under the "Summary" sub-section of the "Policies" section of the website, it states that the "Make in India" program will include "major new initiatives designed to facilitate investment, foster innovation, [and] protect intellectual property", among others. Q.158 What specific new initiatives have been designed and contemplated in these areas? Reply: These initiatives are listed in the web site www.makeinindia.com under headings "New Processes", "new Infrastructure", "New Sectors" and "New Mindset". Initiatives taken to improve Ease of Doing Business (updated as on 20.5.2015) are available at http://dipp.nic.in/English/Investor/EoDB_Intiatives_20May2015.pdf 4.3 Manufacturing Page 110, paragraph 4.51: The Secretariat’s Report discusses India’s Automotive Mission Plan 2006 – 2016 (Plan). Question 159: Please identify what policy interventions have been implemented under the Plan. How have they been applied? What are examples of technical regulations that the automotive industry is subject to and are these applicable to both domestically produced products and any automotive imports? Reply: The Automotive Mission Plan 2006-16 has resulted in the following major initiatives taken by Government to support the Automotive industry development:-
There are no prescriptions for Technical Regulations in the AMP. AMP only suggests that technical regulation to be introduced in the country should be based on a clearly defined long term roadmap. 4.4 Services 4.4.4 Professional Services Page 129, paragraph 4.145: The Secretariat's Report states that "FDI is not permitted in the legal services sector. Foreign law firms are not permitted to open offices in India and are prohibited from giving legal advice." Question 160: Please identify when India intends to liberalize investment in legal services and allow foreign lawyers to practice in India. Reply: The matter regarding opening up of legal services in India to foreign lawyers/law firms is currently under consideration. Any decision in this regard will be taken by the Government of India in consultation with the Regulator, the Bar Council of India, and other stakeholders. Any decision on this matter will however be subject to, inter-alia, the principle of reciprocity, which is provided for in the Advocates Act, 1961. Page 130, paragraph 4.147: Question 160: The Secretariat’s Report states that "only of the ICAI can be a chartered accountant in practice by taking a Certificate of Practice in accordance with the Act. Under the Act, foreign qualifications may be recognized based on mutual-recognition agreements." In practice, few foreigners are accepted as ICAI members. Additionally, foreign-licensed accountants may not be equity partners in an Indian accounting firm. Question 161: Does India intend to liberalize investment in equity partnership by foreign-licensed accountants? Are there any plans to expand mutual recognition agreements to other countries? Reply: The Institute of Chartered Accountants of India (ICAI), the regulator for chartered accountancy profession in India, accords high priority to achieving mutual recognition of qualification as the fundamental step for achieving commercially meaningful reciprocal access. With regard to liberalization of accountancy sector, decision will be taken by the Government of India in consultation with the ICAI and other stakeholders. 5 APPENDIX TABLES Page 141, Table A2.1: The table in the Secretariat’s Report states that FDI is limited in FM radio stations to 26% with approval through the government route. Question162: Please identify when India intends to liberalize and allow greater investment in FM radio. Reply: No such proposal to review the FDI Policy in FM Radio is under consideration of the Government. Also, the FDI table does not discuss restrictions on FDI in e-commerce. Question 163: Please explain why India continues to restrict FDI in the growing industry of e commerce and identify when India plans to liberalize and allow foreign companies access to this sector. Reply: As per extant FDI Policy, FDI is restricted only for B2C e-commerce sector. However, FDI is allowed for B2B e-commerce as elaborated in the Question above. Further, the FDI policy is reviewed on an ongoing basis, with a view to making it more investor-friendly. Yüklə 1,57 Mb. Dostları ilə paylaş:
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