The Government of India came out forcefully against ACTA this week in an intervention at the World Trade Organization. The India position, which may well reflect the views of other ACTA-excluded countries, demonstrates that ACTA is emerging as a contentious political issue that extends well beyond civil society and business groups concerned with the agreement. Countries excluded from the ACTA process have to come to recognize the serious threat it represents both substantively as well as for the future of multilateral organizations.
This growing concern from countries such as India represents a major new pressure point on the ACTA discussions. The notion that ACTA countries could negotiate an agreement that would ultimately be used to pressure non-ACTA countries to conform without attracting opposition from those very countries was always unrealistic. If the April ACTA round of talks was marked by the mounting pressure for greater transparency, the late June ACTA round of talks will undoubtedly have developing country opposition as its core concern.
India's intervention includes the following comments:
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.
Another systemic concern is that IPR negotiations in RTAs and plurilateral processes like ACTA completely bypass the existing multilateral processes.
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.
The released ACTA text shows a general shift in the locus of enforcement which enhances the power of IPRs holders beyond reasonable measure.
The intervention also focused on the specific substantive concerns with the border measure provisions:
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.
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.
The intervention concludes by emphasizing the need for multilateral approaches to addressing these issues and for greater involvement of the WTO.
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.