[A2k] Bridges Weekly: TRIPS Council: Anti-Counterfeiting Trade Pact Raises Eyebrows

thiru at keionline.org thiru at keionline.org
Thu Nov 3 01:40:19 PDT 2011


Bridges Weekly Trade News Digest
• Volume 15 • Number 37 • 2nd November 2011
TRIPS Council: Anti-Counterfeiting Trade Pact Raises Eyebrows

A controversial multi-country intellectual trade property agreement drew
attention at the WTO last week, with several developing countries citing
the pact’s potential implications on non-signatories as cause for concern.
The Anti-Counterfeiting Trade Agreement (ACTA) was signed by eight
countries, including the US, last month.

At the 24-25 October meeting of the WTO’s Trade-Related Aspects of
Intellectual Property Rights (TRIPS) Council, nine of the pact’s eleven
negotiating parties submitted the text of ACTA to the Council in a
communication (IP/C/W/563), with Japan taking the lead in informing the
Council on the signing of the pact in Tokyo.

The eight current signatories of ACTA are Australia, Canada, Japan,
Morocco, New Zealand, Singapore, South Korea, and the US; the other three
negotiating parties - the EU, Mexico, and Switzerland - have not yet
signed the agreement, but have until May 2013 to do so (see Bridges
Weekly, 5 October 2011).

The pact will become binding only after six of the negotiating parties
have ratified the agreement in their respective domestic legislatures.

ACTA seeks to establish new standards for the enforcement of intellectual
property rights (IPRs) to combat rights infringements; some of these new
standards go beyond the minimum requirements of the WTO’s TRIPS Agreement.
It includes four sections: namely, the legal framework of the pact, its
enforcement practices, provisions on international co-operation with
relevant international organisations, and institutional arrangements.

The final text of the agreement is available here.

Pushback from developing countries

The pact has raised substantial debate since negotiations among the
parties began in 2006, drawing the attention of civil society and
policymakers alike. The primary focus has been over some ACTA provisions
that go beyond the terms outlined in the TRIPS Agreement - measures that
are often referred to as “TRIPS-plus” - that might impact public policy
objectives in the areas of access to medicines and access to knowledge in
the digital environment.

Some countries fear that these TRIPS-plus provisions could potentially
have implications even for non-signatories of ACTA. At the meeting, India
argued that the most favoured nation provisions of the WTO’s TRIPS
Agreement requires that any TRIPS-plus measure “secured by any trading
partner via an [regional trade agreement] or a plurilateral agreement is
ipso facto applicable to all other WTO members.”

Concerns over ACTA have featured in previous meetings of the WTO’s TRIPS
Council, with some members questioning whether such an agreement might
pressure countries to adopt similar TRIPS-plus provisions.

India also stressed that various members were worried that ACTA’s
TRIPS-plus provisions could potentially “disturb the fine balance of
rights and obligations provided in the TRIPS agreement and negate
decisions like the Doha Declaration on Public Health.”

The Doha Declaration asserts that “the TRIPS Agreement does not and should
not prevent Members from taking measures to protect public health.”

ACTA legality questioned

Earlier this year, the Committee on International Trade of the European
Parliament asked the Parliament’s internal legal service to verify ACTA’s
legality in accordance with European laws. The Legal Service concluded in
mid-October that, even though the pact appears on the surface to be in
line with EU law, the fact that the agreement is open to the
interpretation of other negotiating parties makes it unclear whether the
agreement is in line with existing European provisions.

Across the pond, Democratic Senator Ron Wyden recently wrote a letter to
US President Barack Obama pointing out that, “the executive branch lacks
constitutional authority to enter binding international agreements on
matters under Congress’ plenary powers” - responding to an argument that
the Office of the US Trade Representative had made when announcing ACTA’s
signing (see Bridges Weekly, 5 October 2011).

Negotiating parties come to pact’s defence

In its intervention, the United States called it “curious that members
oppose ACTA because it is ‘TRIPS plus’ on the one hand, but implement ACTA
provisions in their law on the other.” The US argued that several WTO
members - including non-ACTA countries - have already adopted ACTA
provisions in their domestic laws.

ACTA signatories also emphasised that the pact’s standards for IP rights
enforcement are consistent with and complementary to those provided in the
TRIPS Agreement.

“The TRIPS Agreement is a minimum standards agreement, and Article 1 of
the TRIPS Agreement provides that members “may
implement in their law more
extensive protection than is required by this Agreement, provided that
such protection does not contravene the provisions of this Agreement,” the
US argued.

Japan added that there is no conflict between provisions of ACTA and the
existing obligations under TRIPS. Japan also explained that ACTA provides
its members with flexibilities and options for implementations of
enforcement provisions to ensure no distortion to international trade.

At the TRIPS Council meeting, India had also warned that the deal’s border
measures might pose a “grave threat to trade in generics.” Responding to
such concerns, Canada added that the agreement “will not hinder the
cross-border transit of legitimate generic medicines,” a stance backed by
the EU.

Other ACTA negotiating parties also reaffirmed the pact’s consistency with
the TRIPS Agreement, adding that it does not impose any obligations on
non-member states and that it does not create new intellectual property

The next meeting of the regular TRIPS Council is scheduled for February 2012.

ICTSD reporting.

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