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ACTA restricts developing economies, India tells WTO

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A secret trade agreement designed to harmonise some countries' intellectual property laws could destabilise existing international agreements and harm the economic prospects of developing countries, India has said.

The Anti-Counterfeiting Trade Agreement (ACTA) is a secret IP treaty being negotiated by the US, Japan, the European Commission and others outside of the normal international trade bodies the World Trade Organisation (WTO) and the World Intellectual Property Organisation (WIPO).

The WTO's Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement created a degree of harmonisation between the laws of WTO member countries on the protections given to intellectual property.

In a document submitted to the WTO last week, though, India argued that in going further than TRIPS, ACTA undermined not only the WTO and its agreements, but the very basis of some elements in developing nations' economies.

"Such higher levels of protection are likely to disturb the balance of rights and obligations in the Agreement … 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 [transfer of technology], socio-economic development, promotion of innovation and access to knowledge," India said in its submission according to Washington and Geneva-based non-profit body Knowledge Ecology International (KEI).

"Our concerns emanate from levels of enforcement which far exceed those foreseen in TRIPS Agreement," India's submission said. "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."

"[Agreements such as ACTA] could short-change legal process, impede legitimate competition and shift the escalated costs of enforcing private commercial rights to governments, consumers and taxpayers," it said. "They also represent a systemic threat to the rights of legitimate traders and producers of goods, and fundamental rights of due process of individuals."

Secrecy has surrounded the ACTA process, and opponents of the negotiations have claimed that representatives of businesses had more access to negotiations than citizens whose governments sent delegates to the talks.

One draft of the ACTA agreement was published in April after the European Parliament threatened to take the European Commission to court if it did not give it access to the material.

India said that the ACTA treaty could negatively impact on its trade in generic medicines, even if it was never involved in ACTA negotiations.

"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'," it said.

"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."

India's submission also said that ACTA reduces the power of the courts and the accountability of court-enforcement and ends up transferring too much power to the owners of intellectual property by allowing for the seizure of goods without court oversight.

"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," it said. "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."

India called for the WTO to take part in the ACTA process and ensure that it was the forum through which international IP negotiation took place.

"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," it said. "A response, if required, has to emerge from a multilateral and transparent process, as is available in the WTO TRIPS Council."

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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