TWN Info Service on WTO and Trade Issues
Concerns raised over ACTA at TRIPS Council
Geneva, 29 Oct (Kanaga Raja) -- Concerns were raised by several countries at a meeting of the TRIPS Council over the proposed Anti-Counterfeiting Trade Agreement (ACTA), with those opposed to the agreement arguing that it threatens the negotiated balance that was achieved in the TRIPS Agreement, and could also pressure countries into adopting TRIPS-plus standards.
According to trade officials, the discussion on enforcement trends that featured the draft ACTA (under the agenda item of "other business" at this meeting) echoed the debate in the previous meeting of the TRIPS Council in June (see SUNS #6945 dated 16 June 2010 for details of the discussions on ACTA at that meeting.)
Trade officials said that the focus this time was on the latest version of the draft ACTA released on 2 October, and which some WTO members are negotiating and is said to be near completion after 11 rounds of negotiation.
(ACTA is currently being negotiated by
Critics of ACTA said that the proposed agreement threatens the negotiated balance of the TRIPS Agreement, could lead to countries being put under pressure to adopt standards that are stricter than TRIPS ("TRIPS-plus"), undermines multilateralism and that the negotiations are non-transparent.
In its statement at the TRIPS Council on this
It elaborated on a few such systemic and specific concerns regarding ACTA, in particular, and TRIPS+ enforcement trends, in general. It said that the ACTA text of 2 October has several elements which have far- reaching implications for ACTA non-Members.
Highlighting some specific provisions in the draft
This is further aggravated by the fact that "in-transit"
goods is otherwise included in the overall scope of the agreement. There
is no general assurance that border measures shall not apply to goods
which are "in-transit", in "customs transit" and
in "transhipment". Damages and injunctions also continue to
be applicable to certain patent infringements as also provisions for
seizures, forfeiture and destruction, said
"Although border measures with respect to patents appear to be excluded from the scope of the agreement, including with respect to goods in transit, there remain provisions that might otherwise provide the basis for seizures of legitimate generic drug consignments."
"The United States appears to have proposed to exclude patents from this civil enforcement section, and India presumes this is because US negotiators recognize that the provisions of that section are inconsistent with US patent law, and appear to adversely prejudge the outcome of patent reform legislation in its Congress," said India.
[Meanwhile, according to "Inside US Trade"
and some other media reports, the US patent office is undertaking an
analysis on whether the draft ACTA is in conflict with the US patent
law and the US health care law. Inside US Trade has cited
"As far as systemic concerns go, first and
foremost, ACTA completely bypasses the existing multilateral processes
provided in particular by the WTO and WIPO. The ACTA also scales up
the minimum enforcement level enshrined in TRIPS," said
It added: "The floor and ceiling in TRIPS conforms to a certain balance encapsulated in the Objectives and Principles of TRIPS. The MFN (most favoured nation) provisions of TRIPS Agreement mean that any TRIPS+ protection secured by one trading partner via an RTA (regional trade agreement) or a plurilateral agreement is ipso facto applicable to imports from all WTO Members. Therefore, ACTA will have a direct impact on exports, even of Members which are not involved in its negotiations. The trade restrictive effects of such scaling up is contrary to one of the main principles of the WTO rules based system, which is, to liberalise trade."
"The ACTA text in Article 1.1 recognises
that parties will not derogate with respect to obligations of other
parties under existing agreements, including TRIPS Agreement. However,
we do not see any explicit obligation regarding GATT provisions. This
is a significant omission," said
"It may be recalled that in the request for
consultations on the drug seizure issue,
India also called attention to the fact that ACTA negotiators have decided among themselves to overturn the decision of the WTO dispute settlement panel in the recent China Enforcement case by reinterpreting the phrase "commercial scale" with respect to wilful trademark counterfeiting and copyright piracy so as to refer to any activity carried out for a direct or indirect economic or commercial advantage. "This is startling in light of the WTO panel's contrary decision that the term scale' refers to a level of activity, and it highlights the risk to WTO law posed by turning enforcement matters over to small groups of plurilateral negotiators operating outside the WTO legal framework."
"This shift to summary administrative action may curtail the rights of accused infringers to defend patent infringement claims, ordinary trademark and copyright infringement claims. This represents a substantial transformation from the original concept of enforcement under the TRIPS Agreement."
Noting that it is no secret that TRIPS+ substantive commitments are being actively pursued through Regional Trade Agreements and other means, and that substantive provisions like limiting grounds for Compulsory License, data exclusivity, and patent linkage figure in several of the US Free Trade Agreements with developing countries, India said: "Therefore, ACTA is one of the prongs of the multi-pronged efforts to make substantive and procedural changes in IP (intellectual property) law."
"As goods and services of developing countries
are becoming competitive with those of developed country producers,
TRIPS-plus measures, like the ACTA, seek to introduce a new set of 'non-tariff'
barriers to trade that will preponderantly hinder developing country
exporters. WTO cannot remain oblivious to such developments," stressed
In its statement on this issue at the meeting,
Taken together, chapters 4, 5 and 6 contain, in brief, the necessary ingredients that may convert ACTA, over time, into a truly international organization dealing with the enforcement of IP rights, a development whose impact on WIPO and the WTO, especially on capacity-building and technical assistance, are unpredictable at this stage, said Brazil.
According to trade officials, the participants in the ACTA negotiations said that it does not affect the TRIPS Agreement and that action is needed to tackle the real dangers arising from counterfeit products such as medicines and spare parts. +