TRIPS Council: Anti-Counterfeiting Trade Pact Raises Eyebrows

2 November 2011

A controversial multi-country intellectual trade property agreement drew attention at the WTO last week, with several developing countries citing the pact's potential implications on non-signatories as cause for concern. The Anti-Counterfeiting Trade Agreement (ACTA) was signed by eight countries, including the US, last month.

At the 24-25 October meeting of the WTO's Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council, nine of the pact's eleven negotiating parties submitted the text of ACTA to the Council in a communication (IP/C/W/563), with Japan taking the lead in informing the Council on the signing of the pact in Tokyo.

The eight current signatories of ACTA are Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea, and the US; the other three negotiating parties - the EU, Mexico, and Switzerland - have not yet signed the agreement, but have until May 2013 to do so (see Bridges Weekly, 5 October 2011).

The pact will become binding only after six of the negotiating parties have ratified the agreement in their respective domestic legislatures.

ACTA seeks to establish new standards for the enforcement of intellectual property rights (IPRs) to combat rights infringements; some of these new standards go beyond the minimum requirements of the WTO's TRIPS Agreement. It includes four sections: namely, the legal framework of the pact, its enforcement practices, provisions on international co-operation with relevant international organisations, and institutional arrangements.

The final text of the agreement is available here.

Pushback from developing countries

The pact has raised substantial debate since negotiations among the parties began in 2006, drawing the attention of civil society and policymakers alike. The primary focus has been over some ACTA provisions that go beyond the terms outlined in the TRIPS Agreement - measures that are often referred to as "TRIPS-plus" - that might impact public policy objectives in the areas of access to medicines and access to knowledge in the digital environment.

Some countries fear that these TRIPS-plus provisions could potentially have implications even for non-signatories of ACTA. At the meeting, India argued that the most favoured nation provisions of the WTO's TRIPS Agreement requires that any TRIPS-plus measure "secured by any trading partner via an [regional trade agreement] or a plurilateral agreement is ipso facto applicable to all other WTO members."

Concerns over ACTA have featured in previous meetings of the WTO's TRIPS Council, with some members questioning whether such an agreement might pressure countries to adopt similar TRIPS-plus provisions.

India also stressed that various members were worried that ACTA's TRIPS-plus provisions could potentially "disturb the fine balance of rights and obligations provided in the TRIPS agreement and negate decisions like the Doha Declaration on Public Health."

The Doha Declaration asserts that "the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health."

ACTA legality questioned

Earlier this year, the Committee on International Trade of the European Parliament asked the Parliament's internal legal service to verify ACTA's legality in accordance with European laws. The Legal Service concluded in mid-October that, even though the pact appears on the surface to be in line with EU law, the fact that the agreement is open to the interpretation of other negotiating parties makes it unclear whether the agreement is in line with existing European provisions.

Across the pond, Democratic Senator Ron Wyden recently wrote a letter to US President Barack Obama pointing out that, "the executive branch lacks constitutional authority to enter binding international agreements on matters under Congress' plenary powers" - responding to an argument that the Office of the US Trade Representative had made when announcing ACTA's signing (see Bridges Weekly, 5 October 2011).

Negotiating parties come to pact's defence

In its intervention, the United States called it "curious that members oppose ACTA because it is ‘TRIPS plus' on the one hand, but implement ACTA provisions in their law on the other." The US argued that several WTO members - including non-ACTA countries - have already adopted ACTA provisions in their domestic laws.

ACTA signatories also emphasised that the pact's standards for IP rights enforcement are consistent with and complementary to those provided in the TRIPS Agreement.

"The TRIPS Agreement is a minimum standards agreement, and Article 1 of the TRIPS Agreement provides that members "may...implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement," the US argued.

Japan added that there is no conflict between provisions of ACTA and the existing obligations under TRIPS. Japan also explained that ACTA provides its members with flexibilities and options for implementations of enforcement provisions to ensure no distortion to international trade.

At the TRIPS Council meeting, India had also warned that the deal's border measures might pose a "grave threat to trade in generics." Responding to such concerns, Canada added that the agreement "will not hinder the cross-border transit of legitimate generic medicines," a stance backed by the EU.

Other ACTA negotiating parties also reaffirmed the pact's consistency with the TRIPS Agreement, adding that it does not impose any obligations on non-member states and that it does not create new intellectual property rights.

The next meeting of the regular TRIPS Council is scheduled for February 2012.

ICTSD reporting.

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