[A2k] Open Letter: 3rd Int.Conf. on Counterfeiting & Piracy

[Sangeeta]

An Open Letter to the President of Confederation of Indian Industry (CII) o=
n
the Third International Conference on Counterfeiting & Piracy

To
Mr. Venu Srinivasan
The President
Confederation of Indian Industry (CII)
The Mantosh Sondhi Centre, 23,
Institutional Area, Lodi Road
New Delhi - 110 003
=A0
Dear Mr. Srinivasan,

We understand that Confederation of Indian Industry (CII) is hosting the
Third International Conference on Counterfeiting and Piracy from 19-20th
August 2009 in partnership with the Embassy of the United States and the
Quality Brand Protection Committee (QBPC), China. As stated in the
invitation letter the primary objectives of the conference are: 1) to
initiate coordinated action for cross border enforcement; 2) to highlight
the importance of protection of intellectual property rights (IPRs); 3) to
combat the growing threat of piracy and counterfeiting; 4) to facilitate a
global meeting of customs officials across the globe; 5) to recommend the
creation and setting up of a governmental =B3National Brand Protection=B2 g=
roup;
6) to serve as a forum to discuss legal guidelines related to the
prosecution of IPR infringement and to eliminate =8Cloopholes=B9 within the
existing laws; and 7) to strengthen cooperation between enforcement agencie=
s
and chalk out strategies for enforcement agencies a industry action both at
national & international level.

We also understand that this international conference is part of CII
Intellectual Property Division=B9s special initiative on enforcement of IPR=
s.
As part of this special initiative CII aims at =B3engaging government to
create conducive legislative measures, policy levels reform and impressing
[upon them] to adopt stringent enforcement initiatives and exemplary
punitive and monetary measures to further safeguard and secure the interest
of industry=B2. CII also wants to =B3create a global partnership to synergi=
se
efforts of international community and to support and participate in India'=
s
efforts in combating counterfeiting both at domestic and international
levels=B2.=A0

We, the undersigned, representing various civil society organizations in
India, write this letter to express our strong reservation on the conferenc=
e
as well as on CII=B9s special initiative on IP enforcement. Without raising
any question on CII=B9s right to organize events we would like to convey th=
e
following concerns with regard to the conference and CII=B9s initiative on =
IP
enforcement.

Many of the above mentioned objectives of the conference and the special
initiative are directed towards the enhancement of intellectual property
(IP) standards like coordinated action on border measures, common guideline=
s
for prosecution of IP infringement, exemplary punitive and monetary
measures, etc. In other words, enhancement of IP standards means using more
public money to protect private rights; very often protecting the monopoly
over intangible property rights of multi-national corporations (MNCs).

As you may be aware, MNCs and their developed country hosts are currently
engaged in the implementation of a multi-pronged strategy to enhance IP
enforcement standards.[1] <#_ftn1> This is similar to the MNC=B9s initiativ=
es
in the mid 80s to enhance international IP protection, which resulted in th=
e
Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS).

Unlike the 80s, now MNCs and developed countries use multiple forums to
pursue the objective of enhancement of IP enforcement standards. Some
developed countries have unilaterally enhanced their IP enforcement strateg=
y
to force other countries, especially developing countries, to accept the
same through various multilateral organizations, namely the World Customs
Organization (WCO), World Health Organization (WHO), Universal Postal Union
(UPU), Interpol, WIPO and WTO. Developed countries are also using Free Trad=
e
Agreements (FTAs), Bilateral Agreements on IP Enforcements as well as
financing lobbyist studies, conferences and policy recommendations to impos=
e
higher IP enforcement standards.

These efforts for the enhancement of IP enforcement standards are a matter
of grave concern for the people of developing countries and their
governments. By partnering with the US Embassy and Quality Brand Protection
Committee of China (QBPC)[2] <#_ftn2> in the organization of this
conference, CII is allowing itself to play in the hands of MNCs and some
developed countries, whose interests do not match with that of India
industries and that of the Indian people.

As you are aware, the Government of India is taking a very strong position
in resisting enhancement of IP enforcement standards in all the multilatera=
l
forums. India along with like-minded developing countries successfully
pushed back TRIPS-plus[3] <#_ftn3> IP enforcement agenda at WCO and WHO.
India is also trying its level best to convince other developing countries
the need to stick to TRIPS-compliant standards rather than adopting
TRIPS-plus enforcement standards.

In the wake of the controversial generic drug seizures by EU customs
authorities, India has also raised the issue of TRIPS-plus IP enforcement
standards contained in the EU IP Enforcement Directive at least two times a=
t
the TRIPS Council.[4] <#_ftn4> =A0 The Indian political leadership has
unequivocally raised its concern over the enhancement of IP enforcement
standards at other forums also.[5] <#_ftn5>  In adopting this stance, the
Government of India has cited public interest as well as the operating
freedom of Indian industry as its justifications.[6] <#_ftn6> =A0 By
partnering at this vital stage with an MNC lobby group and a heeding to
developed country governments, CII is not acting in furtherance of the
legitimate public interests of Indian domestic industry and the Indian
people.

It is a well-evidenced fact that TRIPS-plus enforcement standards adversely
impact not only legitimate trade between nations (as shown by the EU
seizures) but also the day-to-day life of millions of people especially in
India and other developing countries.[7] <#_ftn7> Unfounded IP enforcement
measures would adversely impact access to life saving medicines and
educational materials. Thus the IP enforcement measures also have the
potential to deny right to development to people in the global South. Hence
an organization like CII should not view IP as only a business tool but
should look at the larger scheme of things especially in the social and
economic realities of India. In fact, by promoting enhancement of IP
enforcement standards CII is advocating a policy, which would violate the
right to health, the right to knowledge, as also the right to development.

We would also like to point out that Indian pharmaceutical industry is one
of the victims of TRIPS-plus IP enforcement standards. In 2008 alone, 17
consignments[8] <#_ftn8> were seized in transit at Europe using the EU
Directive on IP Enforcement, which allows seizure of goods in transit.[9]
<#_ftn9> These consignments were being exported from developing countries
(such as India and Brazil) to other developing countries, and the contents
of the consignments are perfectly legal in both the exporting as well as th=
e
importing nations.=A0 These highly questionable seizures resulted in the
crisis of health programmes as it resulted in delays in=A0=A0 and prohibiti=
ve
costs of access to life-saving medicines in developing countries of Africa
and Latin America.

CII can barely claim to be representative of the interests of Indian
industry if it ignores such episodes and partners with self-promoting MNCs
and developed countries=B9 governments to advocate for the enhancement of I=
P
enforcement standards.

In the light of above-mentioned issues, we request you to consider the
following:

Rejecting the TRIPS-plus enforcement agenda in toto.=A0 We demand CII,
Federation of Indian Chambers of Commerce and Industry (FICCI), Associated
Chambers of Commerce and Industry(ASSOCHAM) and other Indian business
associations to=A0 reject any and all attempts of=A0 bringing in a TRIPS-pl=
us
enforcement agenda in India, in the interests of Indian industry and the
Indian people.

Completely disengaging from any collaborative efforts with foreign
institutions to further TRIPS-plus standards of IP protection in India and
also abstaining from any engagements on the anti-counterfeiting efforts wit=
h
foreign agencies.=A0 CII should attempt to engage with domestic institution=
s
and build national consensus before engaging with foreign institutions with
the claim of representatives of Indian industry

Take necessary proactive steps to safeguard the interests of access to
medicine and access to knowledge along with interest of the Indian domestic
industry.

Participate in a more creative discussion on IP and development rather than
simply accepting the simplistic and largely discredited view that stronger
IP regime leads to more innovation and is a necessary condition for
socio-economic development.
=A0
CC:Anjan Das
Senior Director & Head
Technology, Innovation, IPR & Life Sciences
Confederation of Indian Industry (CII)
Plot No. 249-F, Sector-18; Udyog Vihar, Phase-IV,
Gurgaon-122015, Haryana
=A0
CC. Shri. P. Chidambaram
Minister
Ministry of Home Affairs
Government of India
North Block, Central Secretariat
New Delhi 110001
=A0
CC. Shri G. K. Pillai
Secretary Justice
Department of Justice
Ministry of Home Affairs
Government of India
North Block, Central Secretariat
New Delhi 110001
=A0
CC: Shri Naresh Dayal,
Secretary, Dept. of Health and Family Welfare
Ministry of Health and Family Welfare
Government of India
149-A, Nirman Bhawan, New Delhi =AD 110 011
=A0
CC: Shri Ajay Shankar
Secretary
Department Of Industrial Policy & Promotion
Ministry of Commerce and Industry
Room 153, Udyog Bhavan,
New Delhi =AD 110 011
=A0
=A0
Signatories to this letter:

1.=A0=A0=A0=A0 Centre for Trade and Development (Centad), New Delhi

2.=A0=A0=A0=A0 Centre for Internet and Society, Bangalore

3.=A0=A0=A0=A0 National Working Group on Patent Laws, New Delhi

4.=A0=A0=A0=A0 Lawyers Collective (HIV/AIDS Unit)

5.=A0=A0=A0=A0 All India Drug Action Network (AIDAN)

6.=A0=A0=A0=A0 International Treatment Preparedness Coalition (ITPC), India

7.=A0=A0=A0=A0 Consumers Association of India, Chennai

8.=A0=A0=A0=A0 IndoJuris Law Offices, Chennai

9.=A0=A0=A0=A0 All Indian People=B9s Science Network, New Delhi

10.=A0 Delhi Science Forum

11.=A0 Alternative Law Forum, Bangalore

12.=A0 Knowledge Commons

13.=A0 Moving Republic

14.=A0 IT for Change

15.=A0 Centre for Health and Social Justice(CHSJ), New Delhi

16.=A0 Navdanya, New Delhi

17.=A0 Support for Advocacy and Training to Health Initiatives (SATHI)

18.=A0 Centre for Enquiry Into Health and Allied Themes (CEHAT)

19.=A0 Initiative for Health Equity & Society

20.=A0 International Peoples Health Council ( South Asia )

21.=A0 Drug Action Forum =AD DHARWAD, Karnataka

22.=A0 Dr. Mira Shiva, New Delhi

23.=A0 Tina Kuriakose, PhD Scholar, Jawaharlal Nehru University, New Delhi

24.=A0 Dr Gopal Dabade, Dharwad

25.=A0 Dinesh Abrol, Scientist NISTADS, CSIR, New Delhi

26.=A0 Madhavi Rahirkar, Lawyer/Consultant, Pune

27.=A0 Gautam John, Bangalore

28.=A0 =A0Achal Prabhala, Bangalore

[1] <#_ftnref>  See Susan K Sell, The Global IP Upward Ratchet,
Anti-counterfeiting and Piracy Enforcement Efforts: The State of Play.
Aavailable at
http://www.iqsensato.org/wp-content/uploads/Sell_IP_Enforcement_State_of_Pl=
a
y-OPs_1_June_2008.pdf

[2] <#_ftnref>  QBPC barely qualifies as a representative of Chinese
interest, as it is comprised of more than 180 multinational member
companies. See
http://www.qbpc.org.cn/About_QBPC/Introduction/2008-08/01_116.html
<http://www.qbpc.org.cn/About_QBPC/Introduction/2008-08/01_116.html> .

[3] <#_ftnref>  =A0 =8CTRIPS-plus=B9 refers to any protection of IPRs that
surpasses the standards and requirements spelt out in WTO-TRIPS provisions.

[4] <#_ftnref>   See Jonathan Lyn, India Brazil raise EU drug Seizures issu=
e
at WTO, available at
http://www.livemint.com/2009/02/04232721/India-Brazil-raise-EU-drug-se.html

[5] <#_ftnref>   Indian Minister of State for External Affairs Broaches
Seizures of Generics at ECOSOC, available at
http://www.keionline.org/blogs/2009/07/08/india-ecosoc-seizures/#more-2404

[6] <#_ftnref>   Indian Commerce Secretary=B9s Speech to the African Commun=
ity
Ambassadors. available at http://www.centad.org/focus_77.asp
<http://www.centad.org/focus_77.asp> . Also see the statement of the
Brazilian Ambassador to the WTO condemning the drug seizures. Available at:
http://www.ip-watch.org/weblog/2009/03/05/concerns-continue-over-generics-d=
r
ug-seizures-as-legality-debates-begin =A0

[7] <#_ftnref>   For two very recent examples, see Intellectual Property
Enforcement: International Perspectives, Xuan Li & Carlos Correa (eds.)
(2009); Anand Grover, Report of the Special Rapporteur on the right of
everyone to the enjoyment of the highest attainable standard of physical an=
d
mental health, A/HRC/11/12 (2009).

[8] <#_ftnref>  Jyoti Datta, 16 out of 17 drug consignment seizures in the
Dutch were from India available at
http://www.thehindubusinessline.com/2009/06/08/stories/2009060851700300.htm

[9] <#_ftnref> The EC Regulation No 1383/2003 allows for seizure of goods i=
n
transit.=A0