Topics like intellectual property and subsidies are emerging as the new areas of focus for officials and industry globally. At a recent meeting in New Delhi on the Anti-Counterfeiting Trade Agreement (ACTA) at the Federation of Indian Chambers of Commerce and Industry (Ficci), Professor Frederick Abbot talked about how intellectual property was becoming the new border measure for many countries. Similarly, in a recent conference at Geneva, the deputy director general of the World Trade Organisation (WTO), Harsha Singh, talked about how subsidies in fossil fuel needed to be disciplined to achieve results in the climate change arena.
The subtle but firm shift to issues such as intellectual property rights (IPR) and subsidies has come about with tariffs becoming insignificant in major parts of the world and countries gearing up to build sophisticated border measures and market access tools to safeguard domestic industry interests.
Professor Abbot explained how some of the developed countries are using IPRs under the ACTA to focus only on issues such as counterfeit which is of interest to the proponents, while countries like India are more concerned about issues such as access to medicine. He and other speakers at the Ficci meeting felt that developing countries stand to lose when mercantile interests overtake public health issues. With many large multinational companies faced with the prospect of losing their patents between 2011 and 2016 because of the “patent cliff”, Professor Abbot said that the market focus was shifting to branded generics.
The European Union, too, has evinced interest in inserting some TRIPS-plus provisions in the on-going negotiations for the India-EU Bilateral Investment and Trade Agreement. The EU is of the view that the 15-year-old TRIPS provisions do not cover the changes that have come in the last few years and thus need to be safeguarded for IPR creators.
Clearly, there is a divide in the discussion on IPR with large corporations and governments in the developed world on one side and the governments and public health proponents in the developing nations on the other. The best way to take this issue forward is to sit across the table and view the issue from each other’s perspective. The developing nations should understand that corporations have to thrive and companies need to realise that to develop a global footprint it is important to engage with local communities and address their specific concerns completely. The discussion so far seems to be moving in opposite directions, which does not suit either side since their objectives will not be met. Any discussion on IPR has to balance concerns on laws, enforcement and public health issues to find a mutually satisfying solution.
The discussion on subsidies in fossil fuel, on the other hand, is different in the sense that it brings the discussions on climate change into the WTO fold. This can have far-reaching consequences in that the WTO may become a platform to discuss issues such as climate change. Though it is important to discuss disciplining subsidies under the Doha Round, it may not be practical to discuss subsidies in the context of other multilateral negotiations such as climate change.
As has been pointed out by Singh, the whole issue of “energy poverty,” about the 1.5 billion people who do not have access to electricity (estimated by the International Energy Agency), has to be taken into account before the WTO, which is a trade negotiating body, enters the fray to deliberate on areas that are clearly outside any discussion on trade deliberations.
The disquiet for industry is that, Singh states, “reflections on the link between trade and climate change, and on the eventual role of the WTO rule-book on an issue such as fossil-fuel subsidies, must take place. We must prepare ourselves intellectually for the moment when we may be required to act”. Such linkages should be watched by industry and the Indian government.
There is an urgent need for industry in India to study the impact of these new issues on different sectors. However, given the fact that Indian industry seeks to become a significant global player, there is a need to look at the issues with future strategy in mind, especially in cases such as IPR in which Indian interests may change over the next few years. The focus has to be on safeguarding public health issues while incentivising IPR creation in the country.
The author is principal advisor APJ-SLG Law Offices
