The Indo-E.U. Trade dispute over the seizure of 'in-transit' Indian generic drug consignments at various ports in the Netherlands has lent a sense of antagonism to the entire debate against ACTA.
The Indo-E.U. Trade dispute over the seizure of 'in-transit' Indian generic drug consignments at various ports in the Netherlands has lent a sense of antagonism to the entire debate against ACTA.
The Indo-E.U. Trade dispute over the seizure of 'in-transit' Indian generic drug consignments at various ports in the Netherlands has lent a sense of antagonism to the entire debate against ACTA.
The Indo-E.U. Trade dispute over the seizure of 'in-transit' Indian generic drug consignments at various ports in the Netherlands has lent a sense of antagonism to the entire debate against ACTA.
The Indo-E.U. Trade dispute over the seizure of 'in-transit' Indian generic drug consignments at various ports in the Netherlands has lent a sense of antagonism to the entire debate against ACTA. Now, apprehending similar measures could be directed under the treaty several other countries have started filing requests to join the consultations on the dispute. Canada has a substantial trade interest in these consultations, as it exports 40% of generic drugs manufactured in Canada to over 120 countries. Canada is also an active WTO Member on the issue of public health, including access to medicines. Certain shipments of generic drugs destined for Ecuador were seized in transit in the territory of the European Union in 2008 and 2009. Ecuador is also concerned that these measures could adversely affect the shipment of drugs destined for Ecuador in the future. Brazil imports significant amounts of generic medicines, including from India; Brazil is also an exporter of generic medicines. More specifically, one of the drug seizures listed in India's consultation request affected a consignment of medicines bound for Brazil. In addition, Brazil requested consultations with the European Union under the DSU on similar measures.4 The wider Indian fears about ACTA are that similar multilateral and plurilateral treaties incorporating harsher TRIPS plus measures are being interned by many countries into their national legislations. The underlying misgiving about the ACTA provision which is now confirmed to be more than mere apprehensions is that the most of the provisions of ACTA are being written under the dictation given by multinational corporations who seek to guard their falling revenues in developing markets. The dangerous trend is that since it unnecessarily upsets the balance of rights as set out in the TRIPS provisions and undermines important decisions on IP protection and enforcement such as the Doha Declaration on Public Health in WTO and the Development Agenda in WIPO.5 CONCLUSION The Government of India has taken a strong stand against ACTA at international fora, including the WTO. A paper submitted to the WTO in June 2010 by India states “They [ACTA proposals] represent a systemic threat to the rights of legitimate traders and producers of goods, and fundamental rights of due process of individuals.” India has also pointed out that ACTA proposals break the “careful balance of the interests of the right holders on the one hand, and societal interests, including development-oriented concerns on the other”6. This position needs to be rigorously promoted and defended. There have been positive signs of support pouring in from other similarly aligned nations such as China, Brazil, and South Africa etc. Apart from working collectively with these 4 http://spicyipindia.blogspot.com/search/label/ACTA?updated-max=2009-02 20T13%3A09%3A00%2B05%3A30&max-results=20, visited on 10/9/2010 5 http://spicyipindia.blogspot.com/search/label/ACTA?updated-max=2009-02- 20T13%3A09%3A00%2B05%3A30&max-results=20, visited on 10/9/2010 6 Editorials, Patently Dangerous, Economic &Political Weekly, June 26,2010
100 countries, we need to develop our independent foreign policy on such contentious issues which has been lacking over the years. Then, of course, there can be no united front against such issues when there could be no consistency in our approach. The issue of 'ceilings', was raised by the Indian delegation when it noted that 'in addition to laying certain minimum standards, TRIPS Agreement also provides „ceilings‟, some of which are mandatory and clearly specified in the TRIPS Agreement'. Essentially, they contend that enforcement levels must be maintained in accordance with the Objectives and Reasons for TRIPS and must not contravene its provisions under any circumstance. The impediments to legal processes, an adverse impact on competition, potential trade barriers and increased cost of IP enforcement for private commercial rights. Article 41.5 of TRIPS states that no government is obligated to allocate equal resources towards IP protection (private rights) and other laws in general. TRIPS-plus provisions contained in the ACTA run contrary to it. Cross-referencing (like in the EU-CARIFORUM agreement) mandates non-negotiating ACTA nations to implement ACTA provisions as well, which is a serious cause for worry. The Caribbean countries would find it increasingly difficult to account for the escalated cost of enhanced IP enforcement mandated by the ACTA provisions. The seizure of goods as an issue was repeatedly mentioned by Indian officials even before the TRIPS Council meeting, since it involves a question of whether customs officials can seize good in-transit, “suspected” of infringing trademarks, copyrights and other IPR's. The standard for determining a 'prima facie' case warranting infringement that would inevitably attract a seizure has been made so low that it goes against the TRIPS sentiment. With the „in-transit‟ provisions, IPR holders can demand seizure of goods by custom authorities without judicial intervention, which are contrary to TRIPS provisions (except in the case of copyright piracy and TM counterfeiting). It ignores fundamental due process issues such as knowledge standards, evidentiary requirements, competent investigation authorities and time-frames. The Indian delegation has voiced its concerns in the words that it produces a 'general shift in the locus of enforcement which enhances the power of IPRs holders beyond reasonable measure' and significantly curtails the ability of an accused infringer to defend ordinary claims of infringement. A FICCI paper has referred to an EU study on ACTA, which opined that there would be an infringement, if a medicine or product is made for which a company holds a patent in any country irrespective of the lack of clarity involved in the scope and validity of the said patent. Following the same line of argument, production of spare parts may also violate an unexamined design right with unclear scope and validity.7 This document on ACTA cites the decision of the US Supreme Court in eBay Inc v. Merc Exchange wherein the US Supreme Court has discussed the effect of grant of interim reliefs on public interest. The Court has observed that an interim relief is effectively used as a bargaining tool when the terms of a license are negotiated with the infringer and that the threat of an interim relief could help a right-holder in unduly gaining an upper hand in the negotiations. 7 www.spicyipindia.blogspot.com/2010/05/in-acta-india-does-not-trust.html, visited on 10/9/2010 AARJSH VOLUME 3 ISSUE 7 (JULY 2016) ISSN : 2278 – 859X 101 Further, the US Supreme Court asks Courts to wake up to the possibility of interim reliefs granted to broadly-worded patents acting as stumbling blocks to advancement of public interest. Therefore, the Court has advocated grant of damages over interim injunctive relief, where appropriate. In one‟s opinion, there‟s another way of looking at this. On one hand, while it is true that enforcement standards advanced by and through ACTA may not be in the best interests of all countries which are at various stages of development, it is also true that unless and until enforcement is given its due, the State is merely doling out paper tigers in the form of IP rights which at the end of the day add nothing to the balance sheet of a right-holder but costs.8 The signing members of ACTA seem to have miscalculated the increasing importance of developing nations, especially the BRIC countries, within international organizations. The declining strength of the US and Europe in global institutions such as the WIPO is all too clear, and with countries such as Argentina, Brazil, China and India mustering strength at international fora and realizing the need for liberal IP regimes. There appears to be a serious impediment in the plans of the United States to simply dole out membership invitations to ACTA and expect passive acceptance.9 Only recently Indian foreign trade minister had some achievement to boast about as the government managed to settle the case of confiscation of 17 consignments of off patent drugs by European Union.10 The seizures were made by EU over last couple of years while the trade consignments were en route to various African and Latin American countries. As per settlement, India withdrew its complaint on the issue that was filed by it with WTO wherein it claimed the impugned action of EU as the violation of multilateral international trade principles. So far so good but last word is far from being heard on the ACTA issue and the government of India will be better advised to use the said settlement to strengthen its case against the treaty which if passed in its present form will allow EU and other countries to go about such seizures with utter impunity and disregard for any of the developing nations‟ woes SUGGESTIONS: India should cooperate with other countries such as China, South Africa, Brazil, who share similar concerns regarding ACTA. Indian diplomatic front should be ever so vigilant and not let itself dragged into economically impotent agreements just for the sake of elusive geopolitical gains. India should open up its markets in critical areas requiring investments for their survival like import of oil seeds as a part of multilateral initiative. Push for technology transfer agreements with the western countries in order to let the industries become more competitive. The fledgling and vitally important market for generic medicines in India should be protected with intellectual property safeguards. 8 http://spicyipindia.blogspot.com/2010/05/acta-new-culture-of-damagesfor-who.html, visited on 10/9/2010 9 http://spicyipindia.blogspot.com/2010/04/guest-post-acta-text-released-impact-on_29.html ,visited on 10/9/2010 10 Drug seizure issue settled, EU agrees to amend laws The Economic Times, Oct 08, 2010 , http://www.ficci.com/ficci-in-news-page.asp?nid=4370, visited on 10/26/2010 102 BIBLIOGRAPHY: 1. Parthapratim Pal, “Regional Trade Agreements and the Improved Market Access in the Developing Countries-the Evidence”, Economic &Political Weekly, November 29, 2008. 2. Udit Misra, N. S Ramnath, “Indian Markets-Open Sesame”, Forbes India Magazine, August 27, 2010. 3. „US Wants More from Investment Deal‟, The Economic Times, April 28, 2008. 4. Pascal Lamy, Proliferation of regional trade agreements “breeding concern”, September 10, 2007, http://www.wto.org/english/news_e/sppl _e/sppl67_e.htm. 5. Bhagwati, J and A Panagariya, The Economics of Preferential Trade Agreements, (1996), AEI Press, Washington DC. 6. Editorials, Patently Dangerous, Economic & Political Weekly, June 26, 2010. 7. Joost Pauwelyn, The Transformation of World Trade http://www.jstor.org/stable/30044497 visited on 9/29/2010 8. http://spicyipindia.blogspot.com/search/label/ACTA?updated-max=2009-02- 20T13%3A09%3A00%2B05%3A30&max-results=20 9. http://spicyipindia.blogspot.com/search/label/ACTA 10. http://www.techeye.net/internet/india-to-sabotage-acta 11. Drug seizure issue settled, EU agrees to amend laws, The Economic Times, Oct 08, 2010, http://www.ficci.com/ficci-in-news-page.asp?nid=4370, visited on 10/26/2010