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 on 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 “global effort to suppress all kind of IP rights infringements”.
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 Muñoz Tellez, programme officer for the Innovation and Access to Knowledge Programme of the South Centre in Geneva, has highlighted the “cosy relationship and role of right holder groups at the WCO” 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 “departs from the member-driven nature that should guide the process.”
India is once again missing in action. Bureaucratic and political apathy have been characteristic of India’s approach to critical trade negotiations, 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’s pharmaceuticals industry (see ‘Choking India’s generics exports’, 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, “denying itself an opportunity to influence the outcome and thus faced with a definition of counterfeits that would harm its interests”.
As a developing country with a putative reputation for tough bargaining at the World Trade Organization (WTO), India’s 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 be successfully pushed in one forum is shifted to the next and the next till an objective —or part of it — is reached. Even an informal agreement on certain 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 developed 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 ‘soft law’ on IP enforcement. Soft law, she warns, is often the basis on which ‘hard law’ 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: “We 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’s why the developed world is seeking to push higher standards of IP protection on medicines in different forums.”
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’s proposed FTA with the EU. One reason that has been frequently cited for their unease with this ‘secretive’ trade pact is the IP norms on pharmaceuticals which, according 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. “IP maximalists have launched a major, almost surreptitious, anti-access to knowledge campaign focused on ‘counterfeiting’, ‘piracy’ and ‘enforcement’,” 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’s report.
