(Image taken from here)
Recent developments indicate that India’s desire to strive to build a united front against the Anti-counterfeiting Trade Agreement (ACTA) (for previous posts, see here) being negotiated by some developed countries remains unabated with time. The said agreement can have harmful repercussions on exports of genuine off-patent drugs, information technology and other products from emerging markets. Proposed between the EU, the US, Australia, Canada, Japan, Korea, New Zealand and Switzerland, the purpose of ACTA is to enhance the scope of protection and elevate the enforcement standard of intellectual property rights beyond the existing TRIPS provisions.
In a report by The Economic Times, a government official who wished to remain unnamed was quoted to have said, “We will hold talks with like-minded countries (read Brazil, China, Egypt etc) and may oppose the ACTA proposal jointly as well as individually by holding talks with countries involved.” Besides posing a potential threat to the exports from emerging markets, the agreement may also empower member countries to seize and destroy exports while in transit to other countries, which is certainly not a desirable outcome by any stretch of imagination! Morocco, Singapore and Mexico have recently agreed to become members of the proposed agreement.
Signs of India’s continuing efforts seeking to hamstring the agreement were exhibited in a seminar organized by FICCI on May 28, wherein Amarendra Khatua, joint secretary at the commerce & industry ministry, said, “We are looking at the issue and preparing a negotiating brief.” The panellists at the seminar included names such as V.K Topa (Advisor, FICCI), T.C James (Consultant, FICCI), Leena Menghaney (Campaign Co-ordinator (INDIA), Medecins Sans Frontiers Campaign for Access to Essential Medicines), Dr. Mira Shiva (Director, Initiative for health Equity and Society) and Raghu Cidambi (Advisor- IPR & Regulatory matters, Indian Pharma Alliance).
A FICCI paper has in fact, 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.
T.C. James, one of the panellists in the FICCI seminar, who is also a consultant with FICCI, went on to say, “The stringent norms being proposed will extend to import, export, in-transit and other situations when goods are under customs supervision.” A logical corollary of the same will be that the existing problem of wrongful seizures that the Indian generic drug exporters to Latin America and Africa are struggling to cope with especially at European airports will get complicated further, since all products and a considerably large number of nations fall within the purview of ACTA.
India has already lodged a formal complaint at the WTO against an EU customs legislation. The said legislation empowers officials to seize consignments of medicines that are off patent in both India and the countries where they are being exported to, provided there are companies holding patents to it in the EU. In fact, in the opinion of Raghu Cidambi, advisor in IPR and regulatory matters at Indian Pharmaceutical Alliance and another panellist at the FICCI seminar, the ACTA members are in effect seeking to undermine the WTO and WIPO processes. Such actions are certainly open to challenge at the WTO, said Leena Menghaney, the Indian campaign coordinator, Medicines Sans Frontiers. According to her, if ACTA comes into effect, it would certainly have an adverse impact on exports of several goods, especially medicines and IT products from developing countries. Nonetheless, the fact remains that such measures can be contested only following their implementation and until the same takes places, India would be better advised to try to form an alliance with other concerned developing countries and lobby and pressurize against the implementation of ACTA.
The Spicy IP team thanks Shashwat Purohit, Research Fellow at the Franklin Pierce Law Centre, for making available valuable details regarding the FICCI seminar, including the identity of the panellists.