India seeks to insulate FTAs from IP policies of the West

Indian Express, India

India seeks to insulate FTAs from IP policies of the West

By Kartikay Mehrotra

3 September 2010

New Delhi : If commerce ministry officials have their way in negotiations, all future free trade agreements (FTA) will include a clause protecting India’s interests against third-party agreements, which include FTA partner nations. Prompted by intellectual property agreements among developed economies — including the forthcoming Anti-Counterfeiting Trade Agreement (ACTA) — Indian agreements will make a point to thwart those trade-related intellectual property rights (TRIPS)-plus policies being enforced around Europe, the US and Japan when it comes to trade with India.

“For instance, while we were negotiating our Comprehensive Economic Partnership Agreement (CEPA) with South Korea, the issue came up as it pertained to their prospective trade agreement with Japan,” said a commerce official on condition of anonymity. “Under ACTA, not only would IP (intellectual property) trading rules overreach WTO guidelines between South Korea and Japan, but they would also influence our IP trading with those countries and their trade partners. That’s the kind of thing we’re trying to prevent.”

It is unlikely the clause would be a hard-and-fast rule exempting Indian traders from such policies. Instead, it would likely prompt communication between Indian officials and foreign trade partners in the event that a third-party agreement nears its conclusion. “We would just like to make sure that they consult with us so that we are prepared to protect the interests of our traders, just as they are doing,” said another commerce official requesting to remain unidentified. “It will probably result in some type of consultation.”

India’s primary concerns are based on ACTA’s provisions for border measures — allowing the seizure of medicines simply on grounds of suspicion — and civil enforcement, thereby creating a wider scope for injunctions and damages on all IPRs, not only on copyright and trademark violations. If this “club of ten countries” enacts and imposes ACTA on the rest of the world, they will likely do so after nixing the provisions of TRIPS and the Doha declaration, which include clauses protecting developing nations, said IP experts, including Indian Pharmaceutical Alliance advisor Raghu Cidambi, in May before the FICCI.

“If they completely bypass the flexibilities negotiated into TRIPS with these extraordinary measures proposed in ACTA, then the question arises: why did we negotiate all these years,” Cidambi said. “All the countries in the world spent a lot of time negotiating and thought they’d won a hard earned victory; basic thing from our country’s perspective is that the multilateral trade forum is being tarnished.”

In a June meeting before the WTO council for TRIPS, ACTA participants voiced their concerns about what they saw as a steadily increasing level of counterfeiting and piracy. Indian officials have brought up the issue with WTO as India does not have a voice in negotiations taking place among about 15 countries. They countered Indian concerns, claiming that that the draft ACTA agreement would not conflict with TRIPS and other WTO provisions. They denied it would upset the negotiated balance set by TRIPS or distort legitimate trade.