[Ip-health] Anti-counterfeiting: Policy of encirclement

[Sangeeta]

Latha Jishnu: Policy of encirclement
Latha Jishnu / New Delhi January 30, 2009, 0:13 IST


Rich nations are using every forum available to step up intellectual
property curbs on developing country exports. India needs to wake up.

Pity the poor customs official. He will, in future, have to be up to date o=
n
the patents granted in his home country, in those of the countries to which
shipments are being sent and be generally well up on the state of play in
patent offices across the world. Apart from trademarks and copyrights, he
would have to be clued in on all kinds of intellectual property (IP) rights
and his scope of operations would be extensive: From import to export,
transit goods and warehouses to free zones and export processing zones.

That is, if a group of developed countries and their rights holders are
successful in pushing through a clever initiative at the World Customs
Organization (WCO) to lay down global norms and model laws for heightened
protection of IP rights. Unsurprisingly, the majority of developing
countries have been caught off guard by the move to push SECURE (Standards
to be Employed by Customs for Uniform Rights Enforcement) simply because
they did not expect WCO to be looking at IP issues. Besides, SECURE was not
a member-driven initiative but put together by the secretariat of the
174-member organisation based in Brussels. SECURE, says the WCO, will be a
set of standards, procedures, and best practices to coordinate the =B3globa=
l
effort to suppress all kind of IP rights infringements=B2.

The most lethal provision of SECURE is that rights holders are not obliged
to provide adequate evidence to show that there is prima facie an
infringement to initiate action. This is not to be wondered at since rights
holders (private industry associations) have been driving the agenda.
Viviana Mu=F1oz Tellez, programme officer for the Innovation and Access to
Knowledge Programme of the South Centre in Geneva, has highlighted the =B3c=
osy
relationship and role of right holder groups at the WCO=B2 who were
participating in the meetings at the same level as member-states.
Shockingly, they have their own vice-chair in the SECURE working group.

Brazil, as usual, has been the rare developing country to be alert to the
dangers posed by SECURE, and is the only one actively taking part in the
SECURE working group discussions, according to the well-informed website
Intellectual Property Watch. It reports that Brazil along with Argentina,
China, Cuba, Ecuador, and Uruguay has sent a report highly critical of the
SECURE draft and also that it =B3departs from the member-driven nature that
should guide the process.=B2

India is once again missing in action. Bureaucratic and political apathy
have been characteristic of India=B9s approach to critical trade negotiatio=
ns,
the country usually waking to a fait accompli, allege trade watchers. This
has been specially so in the case of IMPACT (International Medical Products
Anti-Counterfeiting Taskforce), a WHO-sponsored agency whose proposed
regulations for stamping out counterfeit medicines would have had a lethal
impact on India=B9s pharmaceuticals industry (see =8CChoking India=B9s gene=
rics
exports=B9, Business Standard, January 29, 2009). Dilip Shah,
secretary-general of the Indian Pharmaceutical Alliance, points out that
although there was clear notice that IMPACT was planning a dangerous change
in its definition of counterfeit goods, India had not participated in many
working groups of IMPACT, =B3denying itself an opportunity to influence the
outcome and thus faced with a definition of counterfeits that would harm it=
s
interests=B2.

As a developing country with a putative reputation for tough bargaining at
the World Trade Organization (WTO), India=B9s officialdom needs to have its
pulse on the processes being initiated in different forums by rich
countries. Forum shopping is the name of the game: The agenda that cannot b=
e
successfully pushed in one forum is shifted to the next and the next till a=
n
objective =8Bor part of it =8B is reached. Even an informal agreement on ce=
rtain
standards can be dangerous because it is then imported into the subsequent
forum as a new standard. And as the SECURE proposal shows, even the most
unlikely organisations can be used to promote the interests of the develope=
d
world and its industries.

Tellez points to the hidden dangers of the SECURE draft proposal, which its
proponents say members can adopt voluntarily and are not legally binding.
The issue is not whether or not the WCO has the authority to craft a =8Csof=
t
law=B9 on IP enforcement. Soft law, she warns, is often the basis on which
=8Chard law=B9 is later established. India, with much at stake for its own
industries, needs to be specially alert to the surreptitious moves that are
being increasingly deployed by OECD countries to establish what trade
analysts term TRIPS-Plus-Plus protections. TRIPS is the original IP
protection rules that was first written into the global trade regulations
but even its worst critics now concede that TRIPS is a kitten compared to
the marauding IP tigers that are being set loose in other international
forums.

Activists seeking a fairer trade regime concede this is so. Says Leena
Menghaney, who is the India project manager for the global Campaign for
Access to Essential Medicines: =B3We used to think TRIPS was draconian but =
it
has reasonable exemptions and provisions that protect the interests of the
developed and least developed countries. Now, it looks like a more balanced
law and that=B9s why the developed world is seeking to push higher standard=
s
of IP protection on medicines in different forums.=B2

Menghaney, in fact, cites the TRIPS preamble and Article 8 to show that the
European Union (EU) directive which is being used to seize Indian drugs in
transit (discussed in this column yesterday) contravene TRIPS. If earlier,
strategies at the World Intellectual Property Organization (WIPO) were seen
as TRIPS-Plus, the newer initiatives such as the special trade treaties
signed bilaterally and regionally come in the TRIPS-Plus-Plus category. The
levels of IP protection in many of the free trade agreements signed by the
US with its trade partners, such as the Chile FTA, are exceeding high and
are sometimes accepted by the developing countries without fully
understanding the implications.

This is why a broad coalition of activists in India has launched a campaign
for a transparent process of negotiations on India=B9s proposed FTA with th=
e
EU. One reason that has been frequently cited for their unease with this
=8Csecretive=B9 trade pact is the IP norms on pharmaceuticals which, accord=
ing
to the activists and the trade lobby, could be crippling.

Susan Sell, director of the Institute for Global and International Studies
and professor of political science and international affairs at George
Washington University, Washington DC, sounds a clear warning. =B3IP
maximalists have launched a major, almost surreptitious, anti-access to
knowledge campaign focused on =8Ccounterfeiting=B9, =8Cpiracy=B9 and =8Cenf=
orcement=B9,=B2
she says in a recent paper. She lists more than a dozen initiatives by the
US, EU and OECD which shift forums both horizontally and vertically to
achieve their goals. Since voluntary agencies and developing countries are
active in the WTO, WIPO, and WHO, these are no longer the arena for IP
maximalists, she says. To understand what is going on, India should read
Sell=B9s report.