WTO Report on TRIPS Council and ACTA

The World Trade Organization has posted further information on last week's Council meeting where India, China, and other developing countries raised concerns with the Anti-Counterfeiting Trade Agreement.  The report notes the following:

Briefly, China’s and India’s lengthy statements argued that ACTA and other agreements could:

  • Conflict with TRIPS Agreement (a reference to TRIPS Art.1.1) and other WTO agreements, and cause legal uncertainty
  • Undermine the balance of rights, obligations and flexibilities that were carefully negotiated in the various WTO agreements
  • Distort trade or create trade barriers, and disrupt goods in transit or transhipment
  • Undermine flexibilities built into TRIPS (such as for public health, and trade in generic medicines)
  • Undermine governments’ freedom to allocate resources on intellectual property by forcing them to focus on enforcement
  • Set a precedent that would require regional and other agreements to follow suit. (One example cited was negotiations involving CARIFORUM, the group of Caribbean states. However, a delegation representing CARIFORUM said it understood the concerns but denied that CARIFORUM would have to apply ACTA’s provisions.)

They also argued that the focus on enforcement did not take into account a country’s level of development. A number of developing countries broadly supported the concern.

Reaction: ACTA participants voiced their concerns about what they saw as a steadily increasing level of counterfeiting and piracy. They countered that the draft ACTA agreement will not conflict with TRIPS and other WTO provisions. They denied it would upset the negotiated balance, distort legitimate trade or undermine TRIPS flexibilities. One said generic medicines would not be affected since ACTA does not deal with patents.

They said that ACTA was necessary because counterfeiting is no longer a question of products such as fake luxury watches, but involves commercial scale production of fake medicines, car and aircraft parts and other products, which are dangerous to health and safety, and that developing countries are particularly vulnerable.

Some of them also said they had to get together outside the WTO because countries had opposed discussing enforcement substantively in the TRIPS Council.

Conclusion: The TRIPS Council took note of the comments. (This is not a permanent agenda item and whether or not it is discussed in future meetings depends on what members propose.)

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