Just as the G8-G20 meetings conclude in Muskoka and Toronto, another round of negotiations on the controversial Anti-Counterfeiting Trade Agreement resumes in Switzerland today. In the aftermath of the last round of discussions in New Zealand, a draft version of the ACTA text was publicly released, temporarily quieting criticism about the lack of transparency associated with an agreement that currently touches on all forms of intellectual property, including patents, trademark, and copyright.
While the transparency concerns are no longer in the spotlight, my weekly technology law column (Toronto Star version, homepage version) notes that mounting opposition to the agreement from the developing world, particularly powerhouse economies such as India, China, and Brazil, is attracting considerable attention. The public opposition from those countries – India has threatened to establish a coalition of countries against the treaty – dramatically raise the political stakes and place Canada between a proverbial rock and hard place, given its close ties to the U.S. and ambition to increase economic ties with India and China.
India and China formally raised their complaints earlier this month at the World Trade Organization, where they identified five concerns with the agreement.
First, they fear ACTA conflicts with international trade law and would create legal uncertainty.
Second, they believe ACTA undermines the balance of rights, obligations, and flexibilities that exist within international law. This applies to both trade issues and intellectual property matters. For example, both India and Canada are currently working to implement international intellectual property rules within their domestic laws (both countries have tabled draft copyright bills) and ACTA would create significant new restrictions that could have an immediate domestic impact.
Third, there is concern that ACTA could have a dangerous effect on access to medicines by disrupting shipment of goods such as pharmaceuticals. Over the past few years, European countries have seized generic medicines traveling between India and Brazil. Stopping delivery of crucial medicines while in transit creates potential health risks for countries anxious to import them for delivery to waiting patients.
The prospect of seized generic medicines – ACTA calls for increased seizure powers by customs officials – could impact Canadian pharmaceutical companies as well, given the success of several generic pharmaceutical companies in serving a global marketplace.
Fourth, governments are uncomfortable with the prospect that ACTA could force them to allocate new resources toward intellectual property enforcement ahead of other important policy concerns. While safeguarding intellectual property is important, many developing countries can ill-afford to pull scarce law enforcement personnel away from investigating violent crime in order to track down purveyors of fake handbags or DVDs.
Fifth, there are real concerns that ACTA establishes a dangerous precedent by brushing aside United Nations-based international arenas that offer greater transparency and consensus-driven policies in favour of a closed, non-transparent negotiation process that intentionally excludes developing countries.
These concerns should resonate strongly with Canadian officials hosting the G20, since just as Canada tries to broaden the scope of international economic discussions to include major developed and developing countries, ACTA represents a step in the opposite direction.
While some may suggest that the developing world opposition provides evidence that ACTA is actually on the right track, the reality is that it is designed to apply to the very countries that are now preparing to openly oppose it. There is no mechanism to "force" these countries to abide by ACTA standards. Just as Canada has sought to broaden participation through the G20, the best approach to gaining broader acceptance is to include developing countries in the ACTA talks, not leave them on the outside in the hope of later pressuring them to comply with an agreement from which they were deliberately excluded.