Sorting out the (TPP) Differences

It has been reported that the TPP Agreement will be drawn up very soon.Popcorn Law India has covered the potential concerns raised by TPP Agreement in the posts here, and here.  The TPP Agreement is one of the strategic political tools to offset China’s powerful influence in the region, it seeks to come up with stringent IP enforcement regulations which otherwise might not be acceptable to Asia’s big powerhouses –China and India, but due to the neighboring countries entering into the agreement some pressure can be put on these two countries as well. The TPP has been in the news due to the high level of secrecy maintained by the member countries and the controversial provisions, which have come under fire, leaked by wikileaks and KEI.

It has recently been reported that apparently not all member nations are very satisfied with some of the key reforms intended to be pushed through the TPP. Australia has witnessed protests and disagreements relating to extending the data exclusivity period from the five year period to at least eight years ( earlier the demand was to extend to a period of 12 years), the reason being that further extension of data exclusivity will result in further delaying the entry of generics in the market, people will continue to pay a higher price for the medicine for an additional period of at least three years. If seen from the view of the Australian government it is indeed a valid concern because the accessibility and affordability of medicines heavily depends on their prices which in turn is directly connected with their patent/data exclusivity protection term and the higher the price the lesser the probability of drug being available to all classes of people. Interestingly, neighbor New Zealand too also permits five years for data exclusivity while member countries like Peru, Chile, Malaysia, and Brunei till now did not provide for data exclusivity and are willing to extend it to five years alone.

The U.S. representatives have been pushing for a 12 year protection for biologics data exclusivity since it is in consonance with the U.S. law. On the other hand the Australian Prime Minister has been under the pressure of not caving into the U.S. demands for increasing the term of protection[1].  The governments of all the member countries have been under immense pressure due to the probable consequences of the TPP Agreement, it is due to this reason that Canada’s New Democratic Party Leader Tom Muclair has stated in a letter to the current Trade Minister that if elected his party will not be bound by the TPP[2].  With the claims that a final agreement has been drawn up, a lot of speculation will come to an end and there will be a credible document based on which valid legal concerns can be raised.

Image from here.

Footnotes

[1] Financial Review, (2015). US, Australia drug dispute is holding up settlement of the Trans Pacific Trade Deal. [online] Available at: http://www.afr.com/news/politics/national/us-australia-drug-dispute-is-holding-up-settlement-of-the-trans-pacific-trade-deal-20151003-gk0r65  [Accessed 5 Oct. 2015].

[2] Wingrove, J. (2015). Mulcair Says Canada NDP Not Bound by TPP Deal If Elected. [online] Bloomberg.com. Available at: http://www.bloomberg.com/news/articles/2015-10-02/mulcair-says-canada-ndp-won-t-be-bound-by-tpp-deal-if-elected-ifa4c6zz  [Accessed 5 Oct. 2015].

Of India’s (IP) concerns with U.S.

On 22^nd September, the Center for Internet and Society (CIS) India wrote an open letter to Prime Minister to look into certain IP law related concerns for India ahead of the U.S. – India talks this week (ongoing). There were two major IP issues addressed:

1. The U.S. should ratify the Marrakesh Treaty for visually impaired persons; and
2. The Indian government should not enter into the Trans Pacific Partnership Negotiations (TPP).

Marrakesh Treaty

India is a signatory to the Marrakesh Treaty which calls for a balance between Copyright Laws and Limitations, Exceptions for People with Visual and Print Disability. The Indian Copyright Amendments, 2012  also witnessed the inclusion of an exception for reproducing published works into Braille for the convenience of such visually disabled individuals. The World Blind Union had earlier released[1]in its ‘Right to Read’ Campaign that almost 90% of all the published works was inaccessible to the visually impaired individuals, and the same has been cited by the CIS in its letter.[2] India’s Copyright Amendment 2012 allows room for compulsory licensing of works for the use of visually impaired individuals (prior to Marrakesh Treaty it had been introduced in India.) The Marrakesh Treaty can come into effect only after 20 countries ratify it; currently the number is stuck at 9 countries which does not include the U.S. The letter requests that the U.S. should also sign the treaty since it is home to some of the largest publishing houses and would encourage a proper implementation –of the treaty and India’s new amendment.

Trans Pacific Partnership

The TPP is undoubtedly one of the most controversial regional agreements in the current times. It has included provisions which call stringent IP laws leaving lesser rooms for exceptions and limitations and stand to the benefit of mostly U.S. based authors, Entertainment Industry and dangerously their pharmaceuticals. The TPP discussions have been very cryptic till date and hence, raised the bar for suspicion. Member countries like Australia and New Zealand have faced protests by citizens against adopting TPP provisions which hamper public health and are solely lead by the U.S. (for its Corporate houses)[3]. The CIS letter raises concerns about the U.S. making an attempt at including India in the TPP Agreement, it also makes a reference to the report of Hon’ble Ambassador Shri Arun  K. Singh where he has disagreed with the U.S. report suggesting TPP is beneficial for India and U.S. both (clearly the benefit is unilateral). India is currently in the stage of using and developing technology and cannot afford to lose out on limitations and exceptions of IP enforcement. Also, it is necessary to reiterate that India is currently the largest manufacturer of generics and compliance with U.S. dominated patent laws will inadvertently hit the pharma generics really hard. The letter simply requests the PM not to accede to the U.S. intent of making India a party to the TPP.

On a slightly different note it is interesting to note that owing to the high price of  cancer drugs in the U.S. ,at the time when they are close to losing patent protection, has lead to the U.S. government looking for alternatives. In a recent article it has been stated that New Delhi will be providing cheaper ‘off-patent’ drugs to the U.S. to benefit the American citizens.[4] It will be interesting to see how the U.S. intends to continue with its stringent Patent enforcement regime even in the future when it is clearly beginning to affect the public health concerns (affordability and accessibility).

It can be stated that the CIS has pointed out two major IP issues that the government needs to be aware of at the time when it is negotiating with the U.S. for better bilateral relations (inevitably dealing with IP issues as well). It is worth looking out for how the negotiations pan out!

Image Courtesy: http://www.bilaterals.org/?leaked-investment-chapter-of-the 

Footnotes

[1] Worldblindunion.org,. ‘Marrakesh Treaty – Right To Read Campaign’. Web. 26 Sept. 2015.

[2] Prakash, Pranesh. ‘Open Letter To PM Modi On Intellectual Property Rights Issues On His Visit To The United States Of America In September, 2015’. The Centre for Internet and Society. N.p., 2015. Web. 26 Sept. 2015.

[3] It’s Our Future,. ‘It’s Our Future – Kiwi Voices On The TPPA’. N.p., 2015. Web. 26 Sept. 2015.

[4] Rajghatta, Chidanand. ‘India To Supply Generic Cancer Drug To U.S.’. Times of India. N.p., 2015. Web. 26 Sept. 2015.

Uncle Sam’s woes with the Elephant: Is there a Solution, Finally??

The last year has seen a visible optimism in the international arena regarding investments and trade with India. The most obvious strengthening of relationship was observed between India and the U.S.A with the bilateral investments between the two countries close to a whooping $100 billion in 2014. Amidst all the trust, amiability, and promise of better relations there is one major barrier that exists between the two countries –protection of Intellectual Property Rights. U.S. follows the highest standards of IP protection however, India has a different take towards IP protection, a priority is given to public interest (accessibility and affordability). These differences were further fueled by the recent Novartis judgment where the courts in India held that Novartis could not claim patent over the ‘improvised’ drug since it was hit by Section 3(d) of the Indian Patent Act, 1970 that calls for the requirement of ‘enhanced efficacy’ for a patent protection; this criteria had not been fulfilled by Novartis and its attempt to gain patent over the slight tweaking of the drug was termed as an attempt of –evergreening. This decision has raised concern for major pharma companies across the globe but at the same time has been hailed by the developing nations and human rights activist that view it as a positive step towards increasing accessibility of drugs (by preventing evergreening and allowing drugs to fall in public domain on expiration of patent.) India has also been constantly listed in the U.S.T.R. priority watch list due to its lack/less stringent implementation of IP laws.

Apart from the Patent laws, there are other IP related concerns that have been raised by the members of US Congress and Senate responsible for international trade issues in their letter, dated 18^th September, 2015, to the President’s Administration. The issues raised are dealt below:

• ‘In country Security Testing of Telecommunications’: The Indian government proposed this policy last year with the intent of (a) preventing possibility of snooping via Chinese Telecom equipments; and (b) Increasing indigenous equipments in this sector. The testing is to be done in India to ensure that increased cyber security within the country and reducing the possibility of infringement of privacy and interests of the citizens by foreign parties. This is a concern for the foreign telecom industrialists as this is an additional requirement i.e. the equipments have to specially tested in India which increases their costs.
• ‘Inadequate system for protection and enforcement of copyrights’: This is a valid concern because there is a lack of awareness in India regarding copyright laws. However, measures have been taken by the Government by introducing the Copyright Amendment in 2012 which includes provisions like Digital Rights Management to curb piracy of original works. Furthermore, the Indian judiciary has been active on this frontier and off late there have been cases where Jon Doe orders (order against anonymous entity) have been passed to fight piracy, pirated CD’s/DVD’s have been seized. There is room for measures to be adopted to increase awareness among the people but in a country of 125 million people, copyright infringement is a concern just not at the top of the list –poverty, illiteracy, corruption, terrorism, etc. form the primary concern for the country. It will be interesting to note how the government responds to this demand.
• ‘Insufficient Respect for enforcement of Patents, most notably relating to biopharmaceuticals’: This is one of the most ‘interesting’ lacunae that have been pointed out in the letter. As mentioned earlier, the Indian judiciary has given preference to preserve the public interest rather than the capitalist interest of the Pharmaceutical companies. Section 3(d) sticks out like a sore thumb for the American drug manufacturers as it prevents them from unethically claiming patent over minor changes, in their drugs (that have patent protection expiring) which make no difference on the overall effect that the drug has on consumption. Also, the Indian judiciary has encouraged Compulsory Licensing of drugs if the demands of the people are not met in terms of accessibility and affordability. This too, has not gone down well with the corporate houses that intend to make a profitable business out of selling high priced drug. It is my opinion that there should be a just compensation for the expenditure incurred in R&D of these drugs to encourage innovation and path breaking discoveries but the same should not be burning a hole in the pocket of the average person (patient). The Doha Declaration allows country to take measures that are necessary to cater to public health and India is in compliance with the declaration by giving priority to public health.
• ‘Actually raised applied tariffs on IT Products, contravening its commitments under the WTO’s Information Technology Agreement’: Earlier this year the WTO drafted a deal to slash the tariff rates on about 200 Information Technology related products. Around 49 countries have accepted the same including the United State of America. The Agreement is to come into effect by December 2015 and the 1^st phase of implementation will begin from July 2016 to 2019. India has been constantly targeted by various member countries for high tariff rate as the same act as a barrier to trade however, the governments in India have been reluctant to reduce the tariff in order to protect the local industries from taking a major hit. The Indian IT sector has been flourishing well over the last decade and a reduction in tariff would mean influx of foreign goods which might be cheaper than the Indian ones therefore, affecting the indigenous industries. This issue will definitely be brought up a lot of times by the U.S. and other member countries till a balance is reached.
• ‘Variety of forced localization measures covering products ranging from solar to information technology’: The U.S. had challenged India’s policy of using solar equipments, having local content, by stating that it was unfair and against the WTO rules [national treatment is one of the basic principles of WTO.] In August this year the WTO panel ruled in favor of the U.S. however, the Indian government will be challenging the order therefore, it has two years before the implementation becomes mandatory. At the time when U.S. challenged India’s policy of local content in solar equipments a number of Non profit organizations and activists had suggested that U.S. should drop the challenge as it would effect India’s efforts towards climate change. India has been actively working on measures to reduce pollution and develop alternate technology within the country in fact a major Solar Power project has been planned in Rajasthan. The government officials have stated that the WTO decision would not be having a major effect since, the requirement of local content was applicable only for those projects that had been subsidized by the government[1]. In relation to this dispute it seems more like U.S. is choosing its commercial interest over the larger cause of protecting the environment. It is commendable that the Indian government is promoting the local industries to manufacture equipments and contents which are no polluting the environment. If one sees it from a neutral perspective then according to the WTO rules the Indian government’s stance doesn’t really succeed because WTO calls for national treatment and no preference can be given to local industries to the disadvantage of the foreign industries.

All these concerns raised in the letter make for an interesting debate between a developed and a developing country. If Indian government accedes to any of these demands then there will be a significant change in the country’s IP policy along with allied laws. It is necessary to keep in mind the different setup that both the countries have –U.S. has a more capitalistic approach whereas, India has always observed a protectionist policy towards its industries of course, towards 1991 the government did allow foreign investments (end of license raj) but traces of government control are still visible in the Multi-Retail Sector because of the fear of causing economic loss to indigenous retailers. It is due to these reasons that all the IP enthusiasts will be keenly looking forward to the joint statement that will be released by the two countries at the conclusion of their talks (bridging the gap). The updates on this topic will be posted as soon as I get my hands on the joint statement. J

Image from: http://memegenerator.net/instance/62358547

Footnote:

[1] Kanth, D. ‘WTO Rules Against India In Solar Panels Dispute With The US’. http://www.livemint.com/. N.p., 2015. Web. 22 Sept. 2015.