Negotiation of an EU-India FTA: Will India accept TRIPS-plus protection?

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NEGOTIATION OF A FREE TRADE AGREEMENT EUROPEAN UNION-INDIA:
WILL INDIA ACCEPT TRIPS-PLUS PROTECTION?

Carlos M. Correa
University of Buenos Aires
June 2009

This analysis was commissioned by Oxfam Germany and the Church Development Service (EED). The views in this analysis are those of the author and do not necessarily reflect the views of the commissioning organisations.

Download: http://www.oxfam.de/download/correa_eu_india_fta.pdf

Introduction

India and the European Union (EU) are embarked in the negotiation of a free trade
agreement (FTA) that includes - in line with the policies deployed by the EU and the
United States in the last ten years - a comprehensive chapter on intellectual property
rights (IPRs).

The need to integrate IPRs into broader development policies has been widely recognized
in authoritative reports [1] and in international fora [2]. The ‘Objectives’ of the IPRs chapter in
the proposed FTA [3] overlook the differences in the levels of development of India and the
EU. The stated objectives are limited to facilitating the production and commercialization of ‘innovative and creative products between the Parties’ and to achieving ‘an adequate and effective level of protection and enforcement’ of IPRs. They seem to view IPRs as an end in themselves, rather than as an instrument to be applied in a way that permits coun-
tries to address their development constraints and needs. The absence of objectives outside the protection of IPRs in itself is noteworthy in the light of the involvement of both India and the EU in the discussion of the Development Agenda within WIPO. [4]

Despite the European Parliament’s repeated calls on the European Commission not to seek TRIPS-plus standards of protection in developing countries, particularly as they may affect access to medicines, [5] article 2.1 of the EU-India draft FTA indicates that ‘this chapter shall complement and further specify the rights and obligations between the Parties beyond those under the TRIPS Agreement and other international treaties in the field of intellectual property to which they are parties’. [6] Hence, the intention to exceed the TRIPS standards is explicit. This approach ignores that India, notwithstanding its
recent economic performance and the expansion of its research and development capabilities, is the home to one of the largest populations of poor people in the world. [7] Higher standards of IPRs protection can only aggravate the exclusion of the poor from access to essential products, such as medicines and inputs for agricultural production, the very basis for the survival of the largest part of Indian population.

Unquestionably, India has the expertise and the negotiating capacity to address the IPRs issues in a way consistent with its national interests and with its position in international fora. While the EU may, expectedly, condition certain trade concessions of interest to India to India’s acceptance of higher standards of IPRs protection, it will be up to the
Indian government to assess whether the possible trade benefits (often ephemeral in the light of changing competitive conditions) actually offset the permanent constraints on development and costs to Indian society that such higher standards may generate. Coherence with the position that India has so far maintained in WIPO, WTO and other fora
would suggest that India will endeavor to avoid TRIPS-plus commitments in the context of the agreement with the EU. There might be, however, exceptions notably when there is a declared interest in TRIPS-plus standards as it is the case in relation to geographical indications, or when the proposed additional standards would not have a social or eco-
nomic impact nor require substantial changes in the domestic legal system. It should be borne in mind, in any case, that as a result of the Most-Favoured-Nation clause, any TRIPS-plus standard agreed upon with the EU should be extended automatically and unconditionally to other WTO members without any trade concession from them.

The negotiating texts so far known do indicate that India is resisting many aspects of the EU demands of higher IPRs standards. While in some cases, India has apparently rejected some particular EU proposals (e.g. extension of the patent term, data exclusivity), in other cases its strategy has apparently been to accept certain obligations but only to the
extent admissible under ‘existing’ or ‘applicable’ laws (e.g. articles 6.3, 6.4, 12, 13, 16, 17, 18) or where the proposed measures are deemed ‘appropriate’ by the relevant authorities (e.g. articles 14, 15, 16). Many provisions proposed by the EU, particularly in the area of trademarks have been simplified. In the area of enforcement, many provisions
with mandatory intent (‘the Parties shall...’) have apparently been redrafted by India as facultative (‘the Parties may...’) (e.g., article 13, 14, 16, 18, 19, 20, 21, 23) or converted into a best effort obligation (‘the Parties shall endeavor...’) (e.g. articles 17 and 22). In the following sections a more detailed analysis of some of the provisions under discussion is made.

Footnotes:

[1See, e.g., Commission on Intellectual Property Rights, Integrating intellectual property rights and devel
opment policy, available at http://www.iprcommission.org/graphic/documents/final_report.htm.

[2The World Intellectual property Organization (WIPO) has adopted, in particular, a ‘Development
Agenda’. See http://www.wipo.int/ip-development/en/agenda/.

[3This analysis refers to the draft IPR chapter of the EU-India FTA in its status before the 6th round of
negotiations held from 17 to 19 March 2009 in Delhi. See, e.g.,
http://bilaterals.org/article.php3?id_article=14864.

[4See, e.g. Martin Khor, Strong support from South for WIPO development agenda, available at
http://www.twnside.org.sg/title2/twr171c.htm.

[5See, e.g., the European Parliament Resolution of 12 July 2007 on the TRIPS Agreement and access to medicines which calls on the European Council ‘to meet its commitments to the Doha Declaration and to restrict the Commission’s mandate so as to prevent it from negotiating pharmaceutical-related TRIPS-plus provisions affecting public health and access to medicines, such as data exclusivity, patent extensions and limitation of grounds of compulsory licences, within the framework of the EPA negotiations with the ACP countries and other future bilateral and regional agreements with developing countries’ (para. 11), available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2007-
0353+0+DOC+XML+V0//EN
.

[6Emphasis added.

[7Around 30% (i.e. about 300 million) of the Indian population is below the poverty line (see http://ddp-
ext.worldbank.org/ext/ddpreports/ViewSharedReport?&CF=1&REPORT_ID=9147&REQUEST_TYPE=V
IEWADVANCED&HF=N&WSP=N)
.

source: EED