PHM-Exch> India's intervention to the WTO TRIPS Council: TRIPS plus enforcement trends

[Claudio Schuftan]

From: bala at haiap.org bala at haiap.org

>
>> http://keionline.org/node/864
>>
>> Here below is India's intervention on 'TRIPS plus IPR Enforcement' as
>> delivered at the WTO TRIPS Council on 9 June 2010.
>>
>> Intervention on TRIPS plus enforcement trends – INDIA
>> We support the statement made by China who have drawn the broad canvas
>> against which the TRIPS plus enforcement trends must be seen. They have also
>> raised several fundamental concerns which require further deliberation in
>> this Council. My delegation also wishes to draw Members’ attention to some
>> systemic implications of the multitude of initiatives launched by a group of
>> largely developed country Members to enforce TRIPS Agreement in a manner
>> that is considerably more extensive than the level enshrined in TRIPS
>> Agreement. India has had to expend significant resources and make
>> legislative changes to protect and enforce IPRs in line with TRIPS within
>> the ten year transition period which ended in 2005. Among the developing
>> countries, the least developed are still in the transition period till
>> 2013-16. Our concerns arise from the surge of TRIPS plus initiatives in
>> multilateral fora, RTAs and plurilateral initiatives like the Anti
>> Counterfeiting Trade Agreement (ACTA). Texts of such RTAs, and more recently
>> the negotiating text of ACTA, have appeared in public domain. Such higher
>> levels of protection are likely to disturb the balance of rights and
>> obligations in the Agreement enshrined, interalia, in the Preamble, the
>> Objectives and Principles (Art 7-8) and have the potential to constrain the
>> flexibilities and policy space provided by the TRIPS Agreement to developing
>> country Members like India particularly in areas such as public health, ToT,
>> socio-economic development, promotion of innovation and access to knowledge.
>> They could also potentially negate decisions  taken multilaterally such as
>> the Doha Declaration on Public Health in WTO and the Development Agenda in
>> WIPO.
>>
>> There is no doubt that IPR enforcement is an issue of fundamental
>> importance, which India takes very seriously. However, our concerns emanate
>> from levels of enforcement which far exceed those foreseen in TRIPS
>> Agreement. Let me mention some of these concerns:
>>
>> i. Although TRIPS Agreement is usually considered to be a minimum levels
>> agreement, enforcement levels cannot be raised to the extent that they
>> contravene TRIPS Agreement. TRIPS plus measures cannot be justified on the
>> basis of Art 1:1 since the same provision also states that more extensive
>> protection may only be granted "provided that such protection does not
>> contravene the provisions of this Agreement". In addition to laying certain
>> minimum standards, TRIPS Agreement also provides ‘ceilings’, some of which
>> are mandatory and clearly specified in the TRIPS Agreement. Moreover, the
>> TRIPS Agreement has achieved a very careful balance of the interests of the
>> right holders on the one hand, and societal interests, including
>> development-oriented concerns on the other. Enforcement measures cannot be
>> viewed in isolation of the Objectives contained in Art 7, which says “The
>> protection and enforcement of intellectual property rights should contribute
>> to the promotion of technological innovation and to the transfer and
>> dissemination of technology, to the mutual advantage of producers and users
>> of technological knowledge and in a manner conducive to social and economic
>> welfare, and to a balance of rights and obligations.”
>>
>> ii. TRIPS plus enforcement measures can have a trade distorting effect.
>> The chapeau provisions of the enforcement section of TRIPS in Art 41.1
>> states that “These procedures shall be applied in such a manner as to avoid
>> the creation of barriers to legitimate trade and to provide for safeguards
>> against their abuse.” The TRIPS plus standards envisaged in RTAs and
>> plurilateral initiatives like 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.
>>
>> iii. The TRIPS Agreement is clear about resource allocation and gives due
>> consideration to the limited resources of developing country governments to
>> enforce IPR laws relative to other laws which might call for more urgent
>> priority. Art. 41.5 is cognizant of the capacity constraints of Members and
>> therefore, creates no obligation with respect to the distribution of
>> resources as between the enforcement of IPRs and the enforcement of law in
>> general - “It is understood that this Part does not create any obligation to
>> put in place a judicial system for the enforcement of intellectual property
>> rights distinct from that for the enforcement of law in general, nor does it
>> affect the capacity of Members to enforce their law in general. Nothing in
>> this Part creates any obligation with respect to the distribution of
>> resources as between the enforcement of intellectual property rights and the
>> enforcement of law in general .” We are clear that IPR are private rights
>> and it is not the responsibility of governments to defend each right but
>> rather to provide means for individuals and firms to enforce such rights.
>> TRIPS Agreement elaborates such means which are necessary.
>>
>> iv. Another systemic concern is that IPR negotiations in RTAs and
>> plurilateral processes like ACTA completely bypass the existing multilateral
>> processes. While GATT and GATS provisions allow for further liberalising
>> trade in goods and services through RTAs, there are also provisions to
>> monitor regional and pluliratel initiatives by the WTO. Concerns have
>> already been voiced in the GC and MC-7 about the possible impact of
>> proliferating RTAs on undermining multilateral trade. It is a lacuna in
>> TRIPS that there are no similar systemic checks with regard to IPR aspects
>> of RTAs and plurilateral agreements. This is made worse by the fact that
>> while under Art.XXIV GATT and Art.V GATS WTO Members can limit the benefits
>> of further trade liberalisation to partners in regional trade agreements,
>> any TRIPS-plus protection secured by one trading partner via an RTA or a
>> plurilateral agreement is automatically and unconditionally applicable to
>> all other WTO Members . Therefore, it is even more important to discuss IPR
>> dimensions of regional and plurilateral initiatives in this Council so that
>> they do not undermine TRIPS Agreement.
>>
>> v. 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. As an
>> example, in accordance with commitments under the EU-CARIFORUM EPA, the
>> CARIFORUM members might be obliged to enforce ACTA enforcement provisions
>> which may require additional resource allocation and may be incompatible
>> with the level of economic development of CARIFORUM Members. We wonder about
>> the repercussions since several CARIFORUM Members are SVEs.
>>
>> vi. 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.
>>
>> vii. 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.
>>
>> viii. Benefits intended by the Doha Declaration on Public Health could
>> also be effectively negated by transit provisions. Para 6 system is aimed at
>> making effective use of CL for countries with insufficient or no
>> manufacturing capacities. Mandatory application of border measures to such
>> drugs in transit could deny the potential beneficiaries access to much
>> needed medicines.
>>
>> ix. The released ACTA text shows a general shift in the locus of
>> enforcement which enhances the power of IPRs holders beyond reasonable
>> measure. One ACTA option would mandate that each Party provide enforcement
>> for the full range of IPRs infringement actions "at the border" of an
>> importing country. This would permit IPRs holders to assert infringement and
>> demand seizure of goods before customs administrative authorities, instead
>> of initiating their claims in domestic courts. Under present WTO TRIPS
>> Agreement rules, except with respect to trademark counterfeiting and
>> copyright piracy, a Member may require that infringement claims be pursued
>> in the courts, including for obtaining preliminary relief. The draft ACTA
>> limits the protections otherwise due to accused infringers under the TRIPS
>> Agreement, potentially lowering knowledge thresholds, limiting due process
>> requirements (e.g., requirements to act within particular time frames),
>> limiting evidentiary requirements, and it does not specify the type of
>> authority empowered to make critical decisions. This shift to summary
>> administrative action may dramatically curtail the rights of accused
>> infringers to defend patent infringement claims, ordinary trademark and
>> copyright infringement claims, actions alleging violation of marketing
>> exclusivity rights, and so forth. The draft ACTA therefore, will shift the
>> negotiated balance of the TRIPS Agreement in favor of IPRs holders by
>> shifting the enforcement forum towards customs administrative authorities
>> and away from the civil courts.
>>
>> Mr Chairman,
>>
>> 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.
>>
>>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://phm.phmovement.org/pipermail/phm-exchange-phmovement.org/attachments/20100623/5907bb3b/attachment.html>