In October, 2009 we had blogged on similar news reports which quoted anonymous officials of the Commerce Ministry as saying that India and Brazil were preparing to file complaints against the E.U. if in case direct talks with the E.U. failed to bring about the necessary change in E.U.’s border control laws.
In related news the Commerce Minister recently announced that he is hoping to seal the Indo-E.U. Free Trade Agreement (FTA) by October of this year. I find it a bit odd that the Indian Government would want to initiate legal proceedings against the E.U., its largest trading partner, when it is clearly hoping to seal a FTA which would open up export opportunities of atleast $9 billion.
One of the contentious issues in the current negotiations over the FTA is the introduction of increased IP protection for the pharmaceutical sectors. It therefore appears to be too much of a coincidence for the Commerce Ministry to be announcing legal proceedings against the E.U. on yet another pharma related IP issue. Regardless of whether this move is by coincidence or design, it appears to me that such a move will have a substantial impact on the Indo-E.U. FTA.
An issue which deserves closer examination by the Indian Government is the possibility to take only the Netherlands to the WTO instead of the entire E.U. As already discussed by Shamnad in one of his earlier posts the same E.U. regulation that India seeks to challenge is interpreted differently by the British and Dutch courts. In this backdrop it does not make any sense for the Indian Government to be jeopardizing such vital trade talks when it could afford to sue only the Netherlands.
Please note that as to the legal point at issue, there is no difference between EU law and Indian law, see Gramophone Company of India Ltd v. Birendra Bahadur Pandey and Others, (1984) 2 Supreme Court Cases 534; Civil Appeals Nos. 3216 to 3218 of 1983, India: Supreme Court, 21 February 1984, available at: http://www.unhcr.org/refworld/docid/3f4b8c227.html.
In this decision, the Indian Supreme Court has held:
“32. We have, therefore, no hesitation in coming to the conclusion that the word ‘import’ in Sections 51 and 53 of the Copyright Act means “bringing into India from outside India”, that it is not limited to importation for commerce only, but includes importation for transit across the country.
Our interpretation, far from being inconsistent with any principle of international law, is entirely in accord with International Conventions and the Treaties between India and Nepal. And, that we think is as it should be.”
So, India protects IP in the very same manner as the EU, viz. not only in case of import but also in case of transit. No blame should therefore be cast on the EU or The Netherlands.