[Ip-health] India's intervention to the WTO TRIPS Council: TRIPS plus enforcement trends

Thiru Balasubramaniam thiru at keionline.org
Thu Jun 10 07:30:49 PDT 2010


Here below is India's intervention on 'TRIPS plus IPR Enforcement' as  
delivered at the WTO TRIPS Council on 9 June 2010.

Intervention on TRIPS plus enforcement trends – INDIA
We support the statement made by China who have drawn the broad canvas  
against which the TRIPS plus enforcement trends must be seen. They  
have also raised several fundamental concerns which require further  
deliberation in this Council. My delegation also wishes to draw  
Members’ attention to some systemic implications of the multitude of  
initiatives launched by a group of largely developed country Members  
to enforce TRIPS Agreement in a manner that is considerably more  
extensive than the level enshrined in TRIPS Agreement. India has had  
to expend significant resources and make legislative changes to  
protect and enforce IPRs in line with TRIPS within the ten year  
transition period which ended in 2005. Among the developing countries,  
the least developed are still in the transition period till 2013-16.  
Our concerns arise from the surge of TRIPS plus initiatives in  
multilateral fora, RTAs and plurilateral initiatives like the Anti  
Counterfeiting Trade Agreement (ACTA). Texts of such RTAs, and more  
recently the negotiating text of ACTA, have appeared in public domain.  
Such higher levels of protection are likely to disturb the balance of  
rights and obligations in the Agreement enshrined, interalia, in the  
Preamble, the Objectives and Principles (Art 7-8) and have the  
potential to constrain the flexibilities and policy space provided by  
the TRIPS Agreement to developing country Members like India  
particularly in areas such as public health, ToT, socio-economic  
development, promotion of innovation and access to knowledge. They  
could also potentially negate decisions  taken multilaterally such as  
the Doha Declaration on Public Health in WTO and the Development  
Agenda in WIPO.

There is no doubt that IPR enforcement is an issue of fundamental  
importance, which India takes very seriously. However, our concerns  
emanate from levels of enforcement which far exceed those foreseen in  
TRIPS Agreement. Let me mention some of these concerns:

i. Although TRIPS Agreement is usually considered to be a minimum  
levels agreement, enforcement levels cannot be raised to the extent  
that they contravene TRIPS Agreement. TRIPS plus measures cannot be  
justified on the basis of Art 1:1 since the same provision also states  
that more extensive protection may only be granted "provided that such  
protection does not contravene the provisions of this Agreement". In  
addition to laying certain minimum standards, TRIPS Agreement also  
provides ‘ceilings’, some of which are mandatory and clearly specified  
in the TRIPS Agreement. Moreover, the TRIPS Agreement has achieved a  
very careful balance of the interests of the right holders on the one  
hand, and societal interests, including development-oriented concerns  
on the other. Enforcement measures cannot be viewed in isolation of  
the Objectives contained in Art 7, which says “The protection and  
enforcement of intellectual property rights should contribute to the  
promotion of technological innovation and to the transfer and  
dissemination of technology, to the mutual advantage of producers and  
users of technological knowledge and in a manner conducive to social  
and economic welfare, and to a balance of rights and obligations.”

ii. TRIPS plus enforcement measures can have a trade distorting  
effect. The chapeau provisions of the enforcement section of TRIPS in  
Art 41.1 states that “These procedures shall be applied in such a  
manner as to avoid the creation of barriers to legitimate trade and to  
provide for safeguards against their abuse.” The TRIPS plus standards  
envisaged in RTAs and plurilateral initiatives like ACTA could short- 
change legal process, impede legitimate competition and shift the  
escalated costs of enforcing private commercial rights to governments,  
consumers and taxpayers. They also represent a systemic threat to the  
rights of legitimate traders and producers of goods, and fundamental  
rights of due process of individuals.

iii. The TRIPS Agreement is clear about resource allocation and gives  
due consideration to the limited resources of developing country  
governments to enforce IPR laws relative to other laws which might  
call for more urgent priority. Art. 41.5 is cognizant of the capacity  
constraints of Members and therefore, creates no obligation with  
respect to the distribution of resources as between the enforcement of  
IPRs and the enforcement of law in general - “It is understood that  
this Part does not create any obligation to put in place a judicial  
system for the enforcement of intellectual property rights distinct  
from that for the enforcement of law in general, nor does it affect  
the capacity of Members to enforce their law in general. Nothing in  
this Part creates any obligation with respect to the distribution of  
resources as between the enforcement of intellectual property rights  
and the enforcement of law in general .” We are clear that IPR are  
private rights and it is not the responsibility of governments to  
defend each right but rather to provide means for individuals and  
firms to enforce such rights. TRIPS Agreement elaborates such means  
which are necessary.

iv. Another systemic concern is that IPR negotiations in RTAs and  
plurilateral processes like ACTA completely bypass the existing  
multilateral processes. While GATT and GATS provisions allow for  
further liberalising trade in goods and services through RTAs, there  
are also provisions to monitor regional and pluliratel initiatives by  
the WTO. Concerns have already been voiced in the GC and MC-7 about  
the possible impact of proliferating RTAs on undermining multilateral  
trade. It is a lacuna in TRIPS that there are no similar systemic  
checks with regard to IPR aspects of RTAs and plurilateral agreements.  
This is made worse by the fact that while under Art.XXIV GATT and  
Art.V GATS WTO Members can limit the benefits of further trade  
liberalisation to partners in regional trade agreements, 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 . Therefore, it is even more important to  
discuss IPR dimensions of regional and plurilateral initiatives in  
this Council so that they do not undermine TRIPS Agreement.

v. A systemic impact Members should be aware of is that even if some  
Members are not a party to plurilateral initiatives like ACTA, they  
could still have to enforce ACTA provisions due to cross referencing.  
As an example, in accordance with commitments under the EU-CARIFORUM  
EPA, the CARIFORUM members might be obliged to enforce ACTA  
enforcement provisions which may require additional resource  
allocation and may be incompatible with the level of economic  
development of CARIFORUM Members. We wonder about the repercussions  
since several CARIFORUM Members are SVEs.

vi. Let me now turn Members specific attention to ACTA provisions  
relating to transit which are now public knowledge. We are aware that  
several provisions are still in square brackets, which actually means  
that their inclusion is well within the realm of possibility. The ACTA  
text requires that countries provide procedures for the customs  
seizure of goods “suspected” of infringing trademarks, copyrights and  
other IPRs against goods “in-transit”. According to the ACTA text, “In- 
transit” includes “customs transit” and “transhipment”. Seizures would  
be allowed even where there is a mere “prima facie” case of IPR  
infringement. In view of the recent seizures of generic drug  
consignments, provisions relating to ‘in-transit’ in all likelihood  
would create barriers to access to essential generic medicines,  as  
well  as access to critical climate change technologies. These  
provisions could concretise the legal framework the European Union has  
already instituted through its Council Regulation 1383/2003, which has  
been responsible for empowering customs and border officials to seize  
legitimate generic medicines exported by India to several developing  
countries, including LDCs. Let me remind Members that the EU has so  
far not provided us any legally satisfactory solution to recurring  
drug seizures leaving us with no option but to request for  
consultations under the WTO DSM on 11th May.

vii. Turning to how the draft ACTA provisions can constrain TRIPS  
flexibilities, let me give an example. India's right to exercise  
flexibilities, such as granting compulsory licenses, would be  
interfered with by the mandatory application of border measures to  
goods in transit. Indian exporters could be constrained from shipping  
goods produced under its own exception to countries where there is no  
applicable IPRs protection because transit may be blocked by an  
intervening transit country’s application of domestic IPRs.
Similarly, under the draft ACTA data exclusivity could be invoked by a  
transit country’s customs authorities as a basis for seizing  
pharmaceutical products in transit, even if there is no data  
exclusivity in the exporting and importing countries. This would  
obviously act as a significant constraint on exporting countries such  
as India.

viii. Benefits intended by the Doha Declaration on Public Health could  
also be effectively negated by transit provisions. Para 6 system is  
aimed at making effective use of CL for countries with insufficient or  
no manufacturing capacities. Mandatory application of border measures  
to such drugs in transit could deny the potential beneficiaries access  
to much needed medicines.

ix. The released ACTA text shows a general shift in the locus of  
enforcement which enhances the power of IPRs holders beyond reasonable  
measure. One ACTA option would mandate that each Party provide  
enforcement for the full range of IPRs infringement actions "at the  
border" of an importing country. This would permit IPRs holders to  
assert infringement and demand seizure of goods before customs  
administrative authorities, instead of initiating their claims in  
domestic courts. Under present WTO TRIPS Agreement rules, except with  
respect to trademark counterfeiting and copyright piracy, a Member may  
require that infringement claims be pursued in the courts, including  
for obtaining preliminary relief. The draft ACTA limits the  
protections otherwise due to accused infringers under the TRIPS  
Agreement, potentially lowering knowledge thresholds, limiting due  
process requirements (e.g., requirements to act within particular time  
frames), limiting evidentiary requirements, and it does not specify  
the type of authority empowered to make critical decisions. This shift  
to summary administrative action may dramatically curtail the rights  
of accused infringers to defend patent infringement claims, ordinary  
trademark and copyright infringement claims, actions alleging  
violation of marketing exclusivity rights, and so forth. The draft  
ACTA therefore, will shift the negotiated balance of the TRIPS  
Agreement in favor of IPRs holders by shifting the enforcement forum  
towards customs administrative authorities and away from the civil  

Mr Chairman,

Let me conclude by saying that these are not the concerns of India or  
the developing countries alone. Politicians, civil society and IP  
experts in ACTA members countries, have expressed concern regarding  
the substance and modus operandi of ACTA negotiations. It is a well  
known fact that 633 Members of European Parliament supported a  
Resolution in the European Parliament (Mar 10, 2010) deploring ACTA  
negotiations for bypassing the multilateral framework provided by the  
WTO and WIPO. Several such MEPs have written to DG, WTO and DG, WIPO  
requesting an impact assessment of the extent to which ACTA, as  
proposed, exceeds  obligations in the current IP instruments and  
excludes flexibilities and exceptions contained in them. 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. IPR experts are increasingly  
challenging the concept of minimum standards concept and calling for  
setting maximum standards or ceilings so that there is (i) legal  
security and predictability about the boundaries of IP protection,  
(ii) protection of user’s rights and (iii) free movement of goods,  
services and information.

While India is committed to dealing with IPR enforcement issues in  
line with its TRIPS obligations, the introduction of intrusive IPRs  
enforcement rules applicable to goods and services in international  
trade does not represent a reasonable or realistic response. A  
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. We urge developed country Members to keep these  
concerns in mind while dealing with IPR enforcement issues. Agreements  
such as ACTA have the portents to completely upset the balance of  
rights and obligations of the TRIPS Agreement. WTO cannot remain a  
silent observer to such a development. It is important that the issue  
is deliberated in this Council in detail.


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru at keionline.org

Tel: +41 22 791 6727
Mobile: +41 76 508 0997

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