E-DRUG: Extracts of India's Intervention to the WTO TRIPS Council: ACTA
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Extracts of India's Intervention to the WTO TRIPS Council: ACTA
Created 28 Oct 2010 - 3:58am
On Wednesday, 27 October 2010, the WTO TRIPS Council held its annual
review of the Paragraph 6 System. IP-Watch has a link to the detailed
program [1] of the annual review. This annual review of the Paragraph
6 system lasted till around 8 PM Geneva time. More details of this
closed door meeting will be provided in due course. Sources close to
the negotiations indicate that Canada provided a comprehensive
overview of its implementation of the Paragraph 6 system, Canada's
Access to Medicines Regime (CAMR). Rwanda was not present at this
review; neither was Ghana, a country which has tried unsuccessfully to
make use of Paragraph 6. After 8 PM, the TRIPS Council resumed and
certain Members took the floor to discuss ACTA. Here are some key
extracts from the intervention made by India yesterday concerning ACTA.
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Members will recall that in the June TRIPS Council Meeting, the
delegations of China and India had requested for an agenda item on
TRIPS+ enforcement trends to highlight the systemic implications of
the multiple TRIPS+ initiatives launched by a group of largely
developed country members. It has been our consistent position, and we
continue to hold it, that enforcement is not a permanent agenda item
in TRIPS Council. However, the systemic and specific concerns
compelled us to ask for an agenda item in the last TRIPS Council. The
ensuing discussions demonstrated that the concerns regarding TRIPS+
enforcement were not only those of China and India but were echoed by
a vast majority of developing countries including LDCs. In today’s
meeting we have requested for a discussion on ‘Enforcement Trends’
under ‘Other Business’ due to our continuing concerns on the issue of
TRIPS+. Let me elaborate on a few such systemic and specific concerns
regarding the Anti Counterfeiting Trade Agreement (ACTA) in particular
and TRIPS+ enforcement trends in general. After years of negotiations
in secrecy, we appreciate that negotiating text has now been released
due to the unrelenting pressure of civil society, civil liberty groups
and groups of parliamentarians. The ACTA text of 2nd October available
in public domain has several elements which have far reaching
implications for ACTA non-Members. My delegation is not sure that ACTA
is TRIPS compliant but we reserve our final position till after the
text is finalised.
1. While we are somewhat relieved that patents have been removed, for
the time being, from the section on ‘border measures’, we can not
ignore the fact that ACTA is a plurilateral IPR enforcement agreement
substantially broader than trademarks and copyrights. We are also
concerned at the ambivalence of the proponents to include patents in
the section on ‘civil enforcement’ as well as in the overall scope of
the agreement. This is further aggravated by the fact that ‘in-
transit’ goods is otherwise included in the overall scope of the
agreement. There is no general assurance that border measures shall
not apply to goods which are “in-transit”, in “customs transit” and in
“transhipment”. Damages and injunctions also continue to be applicable
to certain patent infringements as also provisions for seizures,
forfeiture and destruction. Trademarks and copyrights, in any case,
are covered under Border Measures. There remain provisions of the ACTA
with significant implications for trade in legitimate generics,
including those dealing with labelling which may affect the practice
of parallel importation, and the importation of legitimate generics
more generally. Although border measures with respect to patents
appear to be excluded from the scope of the agreement, including with
respect to goods in transit, there remain provisions that might
otherwise provide the basis for seizures of legitimate generic drug
consignments. [It is of interest to India that EU ACTA negotiators
appear to be suggesting that non-EU countries grant rights with
respect to goods in transit that its own Court of Justice has
expressly denied EU customs authorities.
2. The section on ‘Civil Enforcement’ continues to include patents. It
encourages significant damage awards, e.g., damages based on
“suggested retail price” of goods; valuation and lost profit
presumptions in favor of right holders. This represents an inflated
damages basis. The Section also extends injunctions to third-parties
not directly accused as infringers and contains no time limitations
for determinations or for notice to accused infringers. The United
States appears to have proposed to exclude patents from this civil
enforcement section, and India presumes this is because USA
negotiators recognize that the provisions of that section are
inconsistent with US patent law, and appear to adversely prejudge the
outcome of patent reform legislation in its Congress.
6. We call attention to the fact that ACTA negotiators have decided
among themselves to overturn the decision of the WTO dispute
settlement panel in the recent China-Enforcement case by
reinterpreting the phrase "commercial scale" with respect to willful
trademark counterfeiting and copyright piracy so as to refer to any
activity carried out for a direct or indirect economic or commercial
advantage. This is startling in light of the WTO panel's contrary
decision that the term "scale" refers to a level of activity, and it
highlights the risk to WTO law posed by turning enforcement matters
over to small groups of plurilateral negotiators operating outside the
WTO legal framework.
While India is committed to dealing with IPR enforcement issues in
line with its TRIPS obligations, the introduction of intrusive IPR
enforcement rules in international trade does not represent a
reasonable or realistic response. Agreements such as ACTA have the
portents to completely upset the balance of rights and obligations of
the TRIPS Agreement. They could also potentially undermine seriously
decisions taken multilaterally such as the Doha Declaration on Public
Health in WTO and the Development Agenda in WIPO. An enforcement
response, if required, has to emerge from a multilateral and
transparent process, as is available in the WTO TRIPS Council, and
should fully conform to the Objectives and Principles (Art 7, 8) of
TRIPS agreement and the balance of rights and obligations enshrined in
the Agreement. As goods and services of developing countries are
becoming competitive with those of developed country producers, TRIPS
plus measures, like the ACTA, seek to introduce a new set of "non-
tariff" barriers to trade that will preponderantly hinder developing
country exporters. WTO cannot remain oblivious to such developments.
In conclusion, let me reiterate India’s unwavering commitment to its
TRIPS commitments, including, dealing with counterfeiting and piracy.
But we should not miss the woods for the trees. To find an effective
and enduring solution to the problem, we need to step back from a
purely mercantilist approach. We also need to avoid exaggerating the
issue of counterfeiting and piracy since there is lack of empirical
data. Even the US Government Accountability Office (GAO) has recently
raised serious questions concerning the data that has been relied on
by proponents of the ACTA to support the effort. Members need to work
collectively to create respect for IP and reduce the economic
incentive for counterfeiting and piracy by judicious pricing of
products under IPRs and working collectively towards realising the
objectives of the TRIPS Agreement.
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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org
Tel: +41 22 791 6727
Mobile: +41 76 508 0997