TWN Info Service on WTO and Trade Issues
ACTA comes in for criticism at TRIPS Council
Geneva, 15 Jun (Kanaga Raja) -- The moves for the Anti-Counterfeiting Trade Agreement (ACTA) came in for sharp criticism at the meeting of the TRIPS Council last week, with China and India arguing that it went beyond the obligations established under the TRIPS Agreement on enforcement, as well as undermining the flexibilities contained in the TRIPS Agreement and creating trade barriers.
The criticisms voiced by China and India at the
regular TRIPS Council meeting on
According to trade officials,
ACTA is currently being negotiated by
According to trade officials, China and India, in detailed statements, argued that ACTA and other agreements could conflict with the TRIPS Agreement (in reference to Article 1.1) and other WTO agreements, causing legal uncertainty; distort trade or create trade barriers, and disrupt goods in transit; undermine the flexibilities built into the TRIPS Agreement; undermine governments' freedom to allocate resources on intellectual property by forcing them to focus on enforcement; and set a precedent that would require regional and other agreements to follow suit.
They also argued that the focus on enforcement did not take into account a country's level of development.
According to trade officials,
In the case of TRIPS, it is flexibilities as well
as balance between the TRIPS Agreement and the GATT and GATS, said
In its statement,
In addition to laying certain minimum standards, the 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."
Referring to the issue of resource allocation in respect of the limited resources of developing countries to enforce IPR laws relative to other laws that might call for more urgent priority, India said that 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.
"We are clear that IPRs 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."
Another systemic concern highlighted by
Turning to ACTA provisions relating to transit,
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, said India, adding that 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.
On how the draft ACTA provisions can constrain
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
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 favour of IPRs holders by shifting the enforcement forum towards customs administrative authorities and away from the civil courts."
According to India, 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 said that it 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,"
According to trade officials, the participants in the ACTA negotiations said that ACTA would not conflict with TRIPS and other WTO provisions. There would be no new trade barriers and distortions, as well as no change in the balance that has been struck, as they are not raising the level of protection.
Arguing that counterfeiting is a serious problem, 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.
According to trade officials, some of them also said they had to get together outside the WTO because countries had opposed discussing enforcement substantively in the TRIPS Council.
The European Union said that Members want to use the flexibilities in the TRIPS Agreement. What ACTA is doing is making use of flexibilities in TRIPS on enforcement in the interest of health and safety, and that the countries that are most vulnerable to these issues are the developing countries.
The TRIPS Council took note of the statements. +