[Ip-health] 28 February: Intervention delivered by India at WTO TRIPS on IP Enforcement Trends noting concerns with ACTA and TPPA

thiru at keionline.org thiru at keionline.org
Tue Feb 28 09:04:49 PST 2012


28 February: Intervention delivered by India at WTO TRIPS on IP
Enforcement Trends noting concerns with ACTA and TPPA

Blog entry 28 February: Intervention delivered by India at WTO TRIPS on IP
Enforcement Trends noting concerns with ACTA and TPPA has been created.
Submitted by thiru on 28. February 2012 - 19:02

This intervention was delivered by India at today's WTO Council for TRIPS
during discussions of agenda item on IP Enforcement Trends. The statement
raises India's concerns with plurilateral agreements like ACTA and TPPA
and their potential impacts on public health, international exhaustion,
border measures and digital goods and internet freedom.

    "IP Enforcement Trends
    (TRIPS council Feb 28, 2012)

    At the last meeting, my delegation, had pointed out how the
plurilateral agreements like ACTA and TPP contained TRIPS plus
provisions that can undermine the flexibilities and disturb the
delicate balance provided by the TRIPS Agreement and adversely affect
access to health in the developing countries. The issue of access to
health is not only limited to the developing countries but has begun
to affect even the developed world. The unprecedented economic and
financial crisis in the developed world and the austerity measures
that have been taken by many countries, have adversely affected their
health budgets. In this situation of shrinking health budgets it is
essential that access to affordable medicines in every country,
whether developed or developing, does not get circumscribed by the
agreements like ACTA and TPP, which are basically motivated by the
interests of big pharma companies. In this respect I would like to
draw the attention of the Members to reports on , “Fiscal Crisis
taking toll on Health of Greeks”. They highlight how the extensive
public health care system of Greece that took care of every need of
its people, has been pushed hard for dramatic cost savings, to cut
back on the deficits. These measures are taking a brutal toll on the
system and on the country’s growing number of poor and unemployed, who
can neither afford high health insurance premiums or high cost of
drugs provided by big pharma companies. Similar austerity measures in
other parts of Europe have begun to affect access to medicines to
their citizens.

    Mr Chairman, the post TRIPS era that has seen reduction in the policy
space required for designing the IP policy can be characterized by an
enormous increase in cost of essential medicines and the countries
that lack manufacturing capacity are in a further difficult situation.
For the last few years we have seen barriers being created, even to
import generic medicines, through their seizure, during their
transshipment at the European ports. In addition attempts are being
made through bilateral , regional and plurilateral agreements to
stifle the manufacturers of generic medicines that are a life line for
billions of poor in the developing countries. In fact, my delegation
is of the opinion, that this august committee should deliberate on how
the TRIPS agreement should promote access to health to the billions of
needy people rather than discuss the IP agenda of a few countries.

    We have heard the statements made by ACTA signatories and also their
reassurance that ACTA will not affect access to medicines in
developing countries. We are afraid that once ACTA comes into force,
the ACTA Border measures which are currently limited to some parts of
Europe could get extended to the territories of ACTA signatories;
further stifling the supply of generic medicines to the needy
countries. In fact on this issue we fail to understand the very need
of ACTA when there are no reliable estimates of the extent of
counterfeiting and piracy that exists or the exact impact of such
activities on domestic industry. There are various industry estimates
which have been seen to be based on downright incorrect data and at
best dubious methodology to the extent that some estimates rely on
failure to meet targeted sales as evidence of piracy and
    There are several provisions in ACTA despite the ostensible removal of
‘patents’ from the ambit of border measures which may be worrisome for
the developing world.

    1. The ACTA is not just against ‘counterfeiting’, as it is understood
in the context of the TRIPS agreement as well as in the definition
given in the text of the agreement. Even while admitting that the term
‘counterfeit’ applies to trademarks, the agreement in fact extends it
to all forms of IPRs as covered under the TRIPS Agreement, including
data, copyrights, patents, etc. It would be inappropriate to state
that patents are not the subject matter of the Agreement. In fact, the
parties are permitted (on option) to keep patents (and undisclosed
information) outside the scope of Civil Enforcement. Thus, despite
agreeing to keep patents (and undisclosed information) outside the
scope of Border Measures the option on civil enforcement on patents
remains in the agreement. This set of provision is still a marked
increase over the TRIPS Agreement which limited itself to counterfeit
trademark and pirated copyright goods only.

    2. Article 23.2 of the ACTA clearly militates against parallel
importation even though the relevant domestic law may not expressly
forbid it. This it does by criminalising willful use of trade labels
or packaging without the authority of the rightholder, which is
exactly what parallel importers do.

    3. On Border Measures, ACTA goes much beyond Article 51 of the TRIPS
Agreement and includes all forms of Intellectual Property Rights.
However thanks to the strong criticism of these provisions during the
secret negotiations of ACTA and several incidents of generic drugs
getting seized in transit at the European ports, the ACTA signatories
finally decided to exempt patents and undisclosed test data from
Border Measures. While we appreciate these exclusions, the imposition
of Border Measures over other forms of IPRs can still affect the trade
in goods that transit through the ports of ACTA Members.

    4. Members may recall that during several TRIPS Council Meetings in
the past, India and other countries highlighted their concerns over
the seizure of generic medicines in transit at the European ports when
there was in fact no IP violation. Some consignments were detained not
for patent violation but were suspected of trade mark violation.
ACTA’s expansion of border measures far beyond “counterfeit trademark
or pirated copyright goods” can thus authorize seizures of suspected
“confusingly similar” trademarks. Takking a decision on trademarks
requires a comprehensive legal analysis, which is much less
straightforward than determining whether goods are counterfeit. Such
an assessment is typically performed by courts or trademark offices,
which have the necessary legal expertise, case law, and experience to
rely upon. Imposing this task on customs officers is likely to result
in a considerable increase in seizures and temporary detentions based
on right holder allegations that transiting products are confusingly

    5. ACTA Article 16, escalates the border seizure requirements while
reducing safeguards. ACTA mandates ex officio seizures, extends the
scope of requirements to include exports, and makes no mention of a
prima facie evidence requirement or limited duration of the suspension
pending a determination on the merits. This goes much beyond the TRIPS
provision of Article 58 that imposes restrictions on the ability of
border officials to take ex officio action to halt goods at the border
without any complaint from a rights holder. Further rights holders
could also use this customs authority to launch harassing actions
against legitimate competitors.

    6. The TRIPS Plus Border Measures under Article 22 of ACTA disturbs
the delicate balance provided by Article 57 of the TRIPS Agreement
that favour rights holders vis-a-vis the importer of goods. The
disclosure of information provision could be used by right holders to
discover details on distribution chains of generic companies on the
basis of alleged infringement rather than proven infringement. These
companies can then mount aggressive and expensive litigation against
suppliers and intermediaries to deter generic entry into key markets.

    Mr Chairman apart from these concerns we are afraid that ACTA would
establish new benchmarks in international standards on IP enforcement.
These standards are likely to become the bedrock of future
negotiations between the developed and developing countries in the
various RTA negotiations currently under way. As the lure of immediate
market access is a potent one, many of the developing countries may
end up accepting these standards as their own. This would severely
inhibit South–South trade since it would impose obligations on the
importing countries to follow the new standards of enforcement.

    Mr Chairman, we also have concerns over the impact of ACTA on digital
goods and Internet freedom. There is considerable interest about ACTA
creating obligations on the enforcement of copyright, which are
themselves problematic, including those involving digital rights
management and technology protection measures, which are coupled with
new norms for damages for infringement, such as the notion that injury
can be the suggested retail price of goods. This is likely to have a
severe impact on the efforts towards literacy and access to knowledge
and information that has been at the core of the aspirations of the
developing world to convert themselves into information societies and
knowledge economies. In these areas, consumers in the US and the EU
are rightfully concerned, because ACTA is fundamentally hostile to
consumers, by systematically excluding consumer interests from having
meaningful roles in the ACTA negotiations, a tradition that is
expected to continue in the ACTA Committee, which is under no
obligation to operate in a transparent, open, and inclusive manner.

    To conclude my delegation reiterates that the adverse effect of the
TRIPS plus enforcement provisions contained in ACTA and other
plurilateral agreements in the pipe line would not only affect the
developing countries but could also have an impact on the developed
countries. It is therefore essential that collective efforts must be
made to protect the policy space needed not only to access affordable
medicines but also to provide freedom to let the nascent digital
industry prosper in the interest of the mankind."

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