A few days ago, we reported that India and China were going to take a brazen stand at the WTO TRIPS Council meeting, confronting several issues that emerged in relation to the Anti-Counterfeiting Trade Agreement (see our earlier posts on ACTA). While misgivings about the substantive provisions have continued for a while now, the wider concerns of non-negotiating countries such as India and China revolve around the undesirable precedent of multilateral and bilateral agreements mandating ACTA-implementation and the incorporation of ACTA-determined and largely US-authored substantive provisions into domestic legislations.
The Indian delegation at the June 9 meeting (only two days ago) of the TRIPS Council made some hard-hitting points, which are certain to invigorate the ACTA negotiations, and compel a rethink of the strategy to pressurise developing countries to accept the ACTA treaty in a pre-negotiated form. The general theme in the Indian delegation’s address (a copy of which can be found here) appears to be that TRIPS-plus provisions are unacceptable and have a detrimental effect on the overall objective of IP protection and enforcement for developing countries. The major concerns raised may be summarised and enumerated in the following points:
UNDERMINES PREVIOUS DECLARATIONS & TRIPS’ BALANCE OF RIGHTS
i)The disparity between IPR protection required by TRIPS and the steady influx of TRIPS-plus measures into various multilateral and regional trade agreements, culminating in the draft text of the ACTA, is a disturbing trend since it unnecessarily upsets the balance of rights as set out in the TRIPS provisions and undermines important decisions on IP protection and enforcement such as the Doha Declaration on Public Health in WTO and the Development Agenda in WIPO.
MINIMUM STANDARDS AND CEILINGS
ii)The issue of ‘ceilings’, which was also raised by Dr. Henning Grosse Ruse-Khan in the comments section of a previous post on the blog, was put forward by the Indian delegation when it noted that ‘in addition to laying certain minimum standards, TRIPS Agreement also provides ‘ceilings’, some of which are mandatory and clearly specified in the TRIPS Agreement’. Essentially, they contend that enforcement levels must be maintained in accordance with the Objectives and Reasons for TRIPS and must not contravene its provisions under any circumstance.
ESCALATED COST OF INCREASED IP PROTECTION
iii)The delegation also spoke of impediments to legal processes, an adverse impact on competition, potential trade barriers and increased cost of IP enforcement for private commercial rights. The delegation specifically referenced Article 41.5 of TRIPS which states that no government is obligated to allocate equal resources towards IP protection (private rights) and other laws in general. TRIPS-plus provisions contained in the ACTA nullify this point.
BYPASSING MULTILATERAL PROCESSES
iv)On a more political note, the biggest concern of the Indian delegation was the circumvention of existing multilateral processes, since TRIPS does not provide any safeguards in relation to regional trade agreements. Multi-party discussions in an open and transparent manner become all the more important since ‘any TRIPS-plus protection secured by one trading partner via an RTA or a plurilateral agreement is automatically and unconditionally applicable to all other WTO Members’.
v)As discussed in a previous post, cross-referencing (like in the EU-CARIFORUM agreement) mandates non-negotiating ACTA nations to implement ACTA provisions as well, which is a serious cause for worry. The Caribbean countries would find it increasingly difficult to account for the escalated cost of enhanced IP enforcement mandated by the ACTA provisions.
SEIZING GOODS IN TRANSIT
vi)This was an issue that was repeatedly mentioned by Indian officials even before the TRIPS Council meeting, since it involves a question of whether customs officials can seize good in-transit, “suspected” of infringing trademarks, copyrights and other IPR’s. What is even more disconcerting is that the standard has been so low that even a ‘prima facie’ case of infringement attracts such seizure. Swaraj has previously covered the Indo-Brazilian dispute proceedings against the EU for seizure of drugs in transit. The delegation also wisely notes how such a provision could seriously impair TRIPS-flexibilities provided to it.
DUE PROCESS AND RIGHTS OF ALLEGED INFRINGER
vii)With the in-transit provisions, IPR holders can demand seizure of goods by custom authorities without judicial intervention, which is contrary to TRIPS provisions (except in the case of copyright piracy and TM counterfeiting). It ignores fundamental due process issues such as knowledge standards, evidentiary requirements, competent investigation authorities and time-frames. The Indian delegation summarises this point by observing that it produces a ‘general shift in the locus of enforcement which enhances the power of IPRs holders beyond reasonable measure’ and significantly curtails the ability of an accused infringer to defend ordinary claims of infringement.
It is cheerfully encouraging to note that the Indian government has taken such a forceful stand at the WTO, without any real prodding, when civil society groups in several other countries are frantically writing to legislators and government representatives to highlight the impending doom that awaits them if the ACTA comes into being in its current form. By requesting that the issue be “deliberated in this Council in detail”, to fully understand the potential impact of a secret and non-inclusive treaty negotiation such as the ACTA, the Indian representatives have adopted a measured tone, but at the same time have refused to accept the blatant unfairness and absurdity of the ACTA, sitting down. The Indian delegation has given us something to be really proud of.