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| Latha Jishnu: Waking up to ACTA | | India is finally sounding the alarm on a secretive pact by a cabal of rich nations to ramp up IP enforcement measures |
| Latha Jishnu / New Delhi Jun 10, 2010, 00:06 IST |
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Secret societies invariably fill one with dread. It’s the fear of the unknown — not knowing what these societies stand for, and even if one is familiar with their ideology, there is the uncertainty of not knowing how they will act to advance their cause. If you’ve been a Sherlock Holmes fan, you’ll know pretty much what I am talking about. Some of Arthur Conan Doyle’s most gripping tales of the famous detective (The Valley of Fear, The Musgrave Ritual and A Study in Scarlet) centred on secret societies and how they operated. The secret outfit in the first and the scariest of the stories, according to some critics, is supposed to be the Freemasons. That thesis may or may not be right, and as the Freemasons argue, they are much less a secret society — at least now — and more of “a society with secrets”.
It’s a description that sits well with the group of countries negotiating the sinister treaty called the Anti-Counterfeiting Trade Agreement or ACTA. The full details of this group are not known although the core group remains the US, Japan, the European Union (EU), Switzerland, Canada, Australia, New Zealand, and South Korea. Surprisingly, Morocco, Jordan and the United Arab Emirates are reported to have joined some rounds of the ACTA negotiations but then these are all camp followers of the US. The oddball in this cabal is Mexico, brought on board possibly as a member of North American Free Trade Agreement (NAFTA) trade bloc whose other two members are the US and Canada.
The controversial ACTA negotiations, kicked off in 2007, have been kept secret until recently, although there have some leaked drafts which indicated the seriousness of the issues being discussed in the forum. Interestingly, though, the US is known to have shown the ACTA text to dozens of corporate lobbyists.
ACTA is not as straightforward as its name suggests. It goes well beyond curbing trade in counterfeit goods and is a brazen attempt to create higher stands of intellectual property (IP) protection than envisaged in the globally-mandated TRIPS agreement of the World Trade Organisation (WTO). It seeks to establish a new IP enforcement framework that countries can join on “a voluntary basis” and is aimed at creating its own governing body outside the WTO.
In brief, ACTA is aimed at beefing up the TRIPS enforcement rules by knocking out the safeguards in the WTO agreement. It covers trade in everything from generic medicines and Internet transactions that infringe copyrights. As James Love, director of Knowledge Ecology International, points out, ACTA not only ignores safeguards in TRIPS but also refashions “in a more restrictive and anti-consumer way” several key articles and sections of the global accord.
Among the many pernicious provisions of ACTA are the strong border measures that will apply to IP rights and not just copyrights and trademarks. And no prima facie evidence of IPR violations is necessary; the mere suspicion of counterfeiting or copyright violations is enough to invite harsh action. Worse, there is no judicial review of a decision to order the destruction of goods.
Why India and other developing countries, such as Brazil, usually in the forefront of any battle against unjust and repressive IP laws, have not reacted so far to ACTA remains a mystery. It was only in May, after the official draft version had been released by the EU, that India began sounding the alert on this pernicious trade pact. The first public indication of Delhi’s opposition to ACTA was made in Geneva on May 4 when Ashutosh Jindal, a diplomat at the Indian mission to the EU, spoke at a meeting at the European Parliament.
Confining himself to the public health and enforcement aspects of ACTA, which will have serious implications for all developing countries and specially with regard to access to medicines, Jindal underscored the importance of TRIPS in preserving the delicate balance between the rights of the IP rights holders and public interest — a balance between the rights of a handful of individuals/organisations and the interests of billions of people who would be affected. With ACTA aiming to impose TRIPS-plus conditions on developing countries, which are still trying to comply with TRIPS requirements, the diplomat minced no words in signaling the dangers ahead. India is already a victim of EU high-handedness with several legal consignments of Indian generic drugs destined for third countries had been seized at various European transit points at the behest of drug companies. “We are concerned, we are really concerned,” he told the assembly and was frankly sceptical of the EU’s promise that ACTA provisions would respect the Doha Declaration on TRIPS and Public Health.
It appears to have been the first shot. Reports emanating from the commerce ministry indicate that India is enlisting the support of China, Brazil and other allies in a battle that promises to be long and dirty. For now, the issue has been placed on the agenda of this week’s meeting of the WTO’s Council on TRIPS. India is showing that the best way to fight secret societies is to bring public and international scrutiny to their activities.
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