TWN Info Service on WTO and Trade Issues (Apr12/01)
2 April 2012
Third World Network

TRIPS Council discusses ACTA, Australia's packaging bill
Published in SUNS #7323 dated 6 March 2012

Geneva, 5 Mar (Kanaga Raja) - The WTO TRIPS Council, at its meeting on 28-29 February, discussed, amongst others, the Anti-Counterfeiting Trade Agreement (ACTA) and Australia's tobacco plain packaging bill.

According to trade officials, at the start of the meeting on 28 February, the Council elected Ambassador Dacio Castillo of Honduras as its new chair.

During the discussions concerning Australia's legislation last year on plain packaging for tobacco products, the Dominican Republic expressed concerns that the Australian measure is not consistent with the TRIPS Agreement, and that it will destroy the value of trademarks and limit information for consumers, which would create confusion in the marketplace.

According to trade officials, the Dominican Republic said that Australia has not responded adequately to these concerns. It also said that Australia should have chosen other TRIPS-consistent measures. The measure could, on the contrary, encourage more tobacco consumption with the lowering of prices due to reduction of packaging costs, it added.

It further said that it could also open a Pandora's Box with respect to other products that might be considered harmful to public health.

According to trade officials, Cuba, El Salvador, Honduras, Ukraine, Chile, Zimbabwe and Mexico also expressed concerns about the compatibility of the Australian measure with the TRIPS Agreement.

Australia responded that the measure was adopted by its Parliament last November, and that it would be implemented at the retail level on 1 December 2012. It added that it is finalizing regulations for plain packaging for non-cigarette tobacco products like cigars.

According to trade officials, Australia defended the measure as being in the interest of public health, and that this was based on a broad range of studies and was supported by public health advocates.

Norway, New Zealand and Canada expressed general support for Australia, said trade officials.

China, Brazil and Switzerland cited the need for a balance between public health and intellectual property rights.

The World Health Organization (WHO), speaking as an observer, said that tobacco use kills six million people every year, and is a major cause of diseases such as cancer and diabetes.

The WHO said that tobacco companies have now shifted their marketing to developing countries, and warned about the economic impact of higher tobacco consumption for those countries.

(According to media reports, a complaint may be filed against the Australian measure at the WTO this month.)

With respect to intellectual property (IP) enforcement trends, trade officials said that at the start of the meeting, the inclusion of this item on the agenda was questioned by India, Ecuador, Egypt, Cuba and Venezuela, who said that as this item concerned a TRIPS-plus agreement (ACTA), it should be discussed under "Other Business".

According to trade officials, the Chair said that this item was placed on the agenda by Australia, Canada, the European Union, Japan, Korea, Mexico, New Zealand, Singapore, Switzerland and the US. These countries said that there was agreement at the previous TRIPS Council meeting last October to discuss this matter further.

Trade officials said that the item remained on the agenda.

Japan reported that the EU and its Member States signed the ACTA in Tokyo in January 2012.

According to trade officials, the US said that it wanted to dispel misconceptions about ACTA. It stressed that it is an enforcement agreement higher than TRIPS to combat the proliferation of counterfeit goods.

It maintained that ACTA does not target generic medicines, and that it is not a secret agreement, as the text had been available to the public for more than a year.

Singapore said that ACTA will not interfere with legitimate access to the Internet.

According to trade officials, New Zealand said that ACTA would not limit freedom of expression, while the EU said that 200 billion euros are lost due to piracy every year, and that ACTA is a first step of a nucleus of 38 countries to strengthen enforcement against counterfeit goods.

Korea said that ACTA complements the TRIPS Agreement.

On the other hand, India said that ACTA can undermine the TRIPS Agreement, and limit developing countries' access to affordable medicines at these times of shrinking health budgets due to the economic crisis.

In a statement, India said that it had pointed out at the last TRIPS Council meeting how plurilateral agreements like ACTA and TPP (Trans-Pacific Partnership) contained TRIPS-plus provisions that can undermine the flexibilities and disturb the delicate balance provided by the TRIPS Agreement and adversely affect access to health in the developing countries.

The issue of access to health is not only limited to the developing countries but has begun to affect even the developed world, it said, adding that the unprecedented economic and financial crisis in the developed world and the austerity measures that have been taken by many countries, have adversely affected their health budgets.

In this situation of shrinking health budgets, it is essential that access to affordable medicines in every country, whether developed or developing, does not get circumscribed by agreements like ACTA and TPP, which are basically motivated by the interests of big pharma companies, it stressed.

India also voiced concerns over the impact of ACTA on digital goods and Internet freedom. It said that there is considerable interest about ACTA creating obligations on the enforcement of copyright, which are themselves problematic, including those involving digital rights management and technology protection measures, which are coupled with new norms for damages for infringement, such as the notion that injury can be the suggested retail price of goods.

It said that this is likely to have a severe impact on the efforts towards literacy and access to knowledge and information that has been at the core of the aspirations of the developing world to convert themselves into information societies and knowledge economies, it added.

According to trade officials, Brazil said that a one-size-fits-all is not advisable as each country has a different IPR (intellectual property rights) situation.

Bangladesh expressed concern that Least Developed Countries will lose flexibilities and access to generic medicines.

According to trade officials, China said that many provisions of ACTA go beyond the TRIPS provisions.

Ecuador, Egypt and Thailand also expressed concerns, trade officials added.

With respect to the relationship between the TRIPS Agreement and the Convention on Biodiversity (CBD), as well as the issue of protection of traditional knowledge and folklore, trade officials said that many developing countries, including Indonesia, Bolivia, Brazil, China, Venezuela, India, Cuba, Colombia, Chile, Nigeria (on behalf of the African Group), stressed the importance of these issues, including the need for mandatory disclosure requirement.

According to trade officials, Canada objected to any amendment to the TRIPS Agreement in this regard.

The US said that it had made proposals on this subject at the World Intellectual Property Organization (WIPO).

According to trade officials, China, Nigeria (on behalf of the African Group) and Egypt proposed that the WTO Director-General consult on these issues.

The Chair said that he would continue consultations regarding a proposal for the CBD Secretariat to make a presentation to the TRIPS Council.