EU countries can be high. Microsoft reportedly threatened to move Navision—a Danish subsidiary employing 800 software developers—out of the country if the European Union refused to grant software patents.<sup>71</sup> The stakes for India can be just as high. Over the past 15 years India has developed a large, flourishing, and increasingly important software industry. India’s software companies now combine homegrown entrepreneurs and MNCs sourcing work to India—two critical sources of innovation that India must nurture through its IP system. This industry emerged in an environment where India protected software under its copyright laws, its trade secret laws, and to a lesser extent, its trademark laws. The recent amendment extending patent law into some areas of the software world represents a change to a system that seemed to be working—always something of a risk. But as Microsoft’s threat to Denmark demonstrates, the culture in the software world is also changing. Legal stasis may not have been an option for India. The need for such adaptation rose to the fore in a recent CNBC-hosted debate, “Conforming to the IPR Regime—Is it a Business Imperative Today?” In line with demands of the IT industry, the Government has agreed to rigorously implement IPR laws in the sector to enable India to emerge as a knowledge superpower. Department of Industrial Policy and Promotion Secretary Ajay K. Dua has said, “We need to implement greater intellectual property rights laws,” while responding to BSA Worldwide President Robert Holleyman’s statement that India’s track record in implementing an IPR regime is very poor, and that Malaysia and Taiwan are much ahead of India...

According to him, India needs to have IPR infrastructure including IPR managers, IPR attorneys and IPR enforcement machinery. As a recent IDC-BSA Global piracy study said, decreasing India’s piracy rate by 10 points from 2002 to 2006 would add 2.1 billion dollars to the GDP, thereby creating more than 48,000 new jobs and generating 92 million dollars in tax revenues. The IT giants realised that ignorance about licensing is a key reason for the high rate of piracy at the corporate level.<sup>72</sup> Furthermore, many critics of software patents are equally critical of software copyrights; neither type of IPR seems particularly well attuned to motivating software developers. As a result, many of these critics have recommended a sui generis IPR for software.<sup>73</sup> Because few if any of their recommendations have worked their way into law anywhere, it is impossible to know whether they would lead to a more robust software industry—either globally or in whatever country chose to adopt them.

The ultimate lesson for India’s software and IP communities is that all IPRs protecting software remain controversial. Box 9 outlines a number of questions that India’s policymakers (along with

> 71 _See_ “Bill Gates Threatens to Close Navision in Denmark,” _The Copenhagen Post Online_ , February 15, 2005,

> http://www.cphpost.dk/get/85881.html.

> 72 “Govt to Implement IPR Regime Rigorously: Dua,” 18 September, 2006. http://www.indlawnews.com/3B85675445ADB7E38916409C322F31D1.

> 73 _See, for example_ , Samuelson and others, _supra_ n. 8; Abramson, _supra_ nn. 8, 10.

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