India’s intervention to the WTO TRIPS Council: TRIPS plus enforcement trends

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.