India And China Claim That ACTA Violates Earlier IP Agreements

from the at-least-someone's-fighting... dept

Recently, we noted that India and some other countries were gearing up to oppose ACTA, as it presents a huge problem for a variety of developing countries. India should know. It’s still getting over the troubles created by TRIPS, which forced it to make some massive changes to its IP laws, which multiple studies have shown to have caused trouble for India. So it doesn’t seem to keen to sign up for yet another, even more draconian, set of IP rules. Michael Geist points us to some notes from the recent WTO meeting where India (along with China, and some other developing nations) expressed their serious concerns with ACTA, including that it appears to violate the TRIPS agreement that they’ve already signed onto:

Briefly, China’s and India’s lengthy statements argued that ACTA and other agreements could:

  • Conflict with TRIPS Agreement (a reference to TRIPS Art.1.1) and other WTO agreements, and cause legal uncertainty

  • Undermine the balance of rights, obligations and flexibilities that were carefully negotiated in the various WTO agreements

  • Distort trade or create trade barriers, and disrupt goods in transit or transhipment

  • Undermine flexibilities built into TRIPS (such as for public health, and trade in generic medicines)

  • Undermine governments’ freedom to allocate resources on intellectual property by forcing them to focus on enforcement

  • Set a precedent that would require regional and other agreements to follow suit. (One example cited was negotiations involving CARIFORUM, the group of Caribbean states. However, a delegation representing CARIFORUM said it understood the concerns but denied that CARIFORUM would have to apply ACTA’s provisions.)

They also argued that the focus on enforcement did not take into account a country’s level of development.

A number of developing countries broadly supported the concern.

Not too surprisingly, ACTA supporters hit back, but note how they avoid some of the bigger issues here:

ACTA participants voiced their concerns about what they saw as a steadily increasing level of counterfeiting and piracy. They countered that the draft ACTA agreement will not conflict with TRIPS and other WTO provisions. They denied it would upset the negotiated balance, distort legitimate trade or undermine TRIPS flexibilities. One said generic medicines would not be affected since ACTA does not deal with patents.

They said that ACTA was necessary because counterfeiting is no longer a question of products such as fake luxury watches, but involves commercial scale production of fake medicines, car and aircraft parts and other products, which are dangerous to health and safety, and that developing countries are particularly vulnerable.

Some of them also said they had to get together outside the WTO because countries had opposed discussing enforcement substantively in the TRIPS Council.

That claim about ACTA not dealing with patents is news to us. Both the leaked and the released draft still had language suggesting that at least some negotiators used language such that ACTA applied broadly to all intellectual property. If they’re really dropping patents from ACTA, that would certainly be news. Jamie Love noted at a recent meeting that Steve Metalitz, who is a lawyer representing the entertainment industry, has said that patents are being dropped from ACTA. Hopefully it’s true, but until we actually see that, who knows whether it’s really happening.

As for the claims that ACTA is “necessary,” that’s clearly bogus. Also, it’s amusing to note that the “necessary” part focuses on the typical fear mongering points of fake medicines. If they want to stop fake medicines and fake aircraft parts, fine. Then create a document that does that. The problem is that ACTA supporters hide under those claims to lump in a ton of unrelated stuff, which is where many of the concerns come from.

Separately, Love also notes that Metalitz claims that it’s “not appropriate” for trading partners to discuss fair use in ACTA. Huh? This is an argument we’ve seen before, and it makes absolutely no sense. ACTA’s copyright provisions include all sorts of aggressive enforcement requirements, and without clear fair use exceptions, those enforcement rules strip copyright of most of its key balancing points. The whole ACTA process continues to be a sham.

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Comments on “India And China Claim That ACTA Violates Earlier IP Agreements”

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Dagnammit says:

srs business here.

US citizens should be less sensitive to criticism and pay attention to the patterns of emerging tiranny. What is going on is:

1. Overly eager adoption of belic vocabulary. You guys are waging “war” over everything. Terrorism, drugs, piracy, BP’s oil spill. Get a grip, folks.

2. Gradual elimination of individual rights to appease the industry. The easiest example to mention in Techdirt is the war on piracy, but it goes beyond that. Your public transportation is scrapped down to benefit auto makers. And don’t get me started on pharmaceuticals and healthcare.

3. The official (by official I mean governmental) reaction to most criticism is an attempt to frame the critic as a terrorist or anti-american, in an ad-hominem strategy to dismiss the criticism.

Even if you disagree with points 1 and 2, I’d like to point out that you’ll see massive evidence of point number 3 in the news in the following days, as news anchors talk about how evil India and China are. Enjoy your monolithic mass media, guys.

Anonymous Coward says:

“As for the claims that ACTA is “necessary,” that’s clearly bogus” – it isnt surprising that you have this opinion, but there are plenty of good reasons for an agreement such as acta. i think that acta doesnt align with your worldview on things, and as such, you are unlikely to ever find anything good or useful in it.


Re: Nonsense and Redundancy

> but there are plenty of good reasons for an agreement such as acta

Such as?

One of the points made by India is the fact that such agreements already exist.

Once key problem with ACTA (besides it’s clandestine nature) is the fact that music piracy is being conflated with counterfeit pharmaceuticals. It’s like a bad piece of American legislation with all manner of stealth provisions and pork barrel projects attached to it.

Anonymous Coward says:

Re: Re: Nonsense and Redundancy

“Such as?” – the most important is the idea of balance between different countries. it makes it much easier for companies to allow their ip to be used in a country if they feel it is not going to be stolen. india and china are complaining because they have some of the biggest issues with counterfeiting and illegal use of ip. of course they are complaining. sort of like a drug dealer complaining because the five oh are messing up his street corner selling operations.

“Once key problem with ACTA (besides it’s clandestine nature) is the fact that music piracy is being conflated with counterfeit pharmaceuticals. ” – in the end, they are the same thing. someone created it, others should not profit from that creation without permission.

Anonymous Coward says:

Re: Re: Re:2 Nonsense and Redundancy

nobody suggests for a minute anything like you are talking about. you are free to stay on your remote farm with your militia and arm yourself against the upcoming armageddon, while the rest of us will continue to understand that freedoms are not an absolute, when they infringe on the rights and freedoms of others.

Anonymous Coward says:

Re: Re: Re:2 Nonsense and Redundancy

Yeah, like we’re going to allow IP rights for our /enemy/ when we’re at a state of war? Real war, with bombs, fires, people /dying/? How f’ing stupid are you?

Let’s also completely ignore the fact that our rocket program came about when the GERMAN SCIENTISTS DEFECTED to the US. Sure. US Haters: Rewriting history all over, again.

Hephaestus (profile) says:

Re: Re:

“it isnt surprising that you have this opinion, but there are plenty of good reasons for an agreement such as acta.”

Yes there are, and they are all about corporate profits, preventing competition, and granting monopoly rights to corporations.

You seem to be under the mistaken impression that ACTA will protect corporations and keep things unchanged. Short term it might, long term it wont. All this industry wish list does is create an artificial level of support. It makes any new disruptive technology much more likely to cause a major collapse in the industries ACTA is designed to protect.

Feel free to support ACTA all you want. History is full of examples of failures associated with this sort of protectionism.

harbingerofdoom (profile) says:

Re: Re:

it is bogus.
you can sit there and say “oh there are plenty of good reasons for it” all day long.

but that does not make it a necessary thing that we cant live without.

besides, ACTA doesnt really align with most peoples world view. it really only aligns with those who seek to control IP as a means to keep archaic business methods that can not be supported in any other way in todays marketplace alive and kicking and those that profit from bribes kickbacks campaign donations and the insane amounts of legal fees

Joel (profile) says:


People ACTA is the worst of all of our fears, it is just a massive compilation of what is going to constrain innovation. If ACTA does ever come to fruition the whole world will be screwed, if a person can’t create because they will be infringing on someones I.P. then who is going to benefit?

We have to find a way to inform the people of what is going on, I still haven’t seen anything on the news or 60 Minutes or anything of that sort; people don’t know what is going on and there are many companies that need for ACTA to become “law” yet the world needs for it to fail. If things like this are going to be the norm with ACTA what is going to happen to humanity?? We have to stand up and find a way to communicate, inform your friends and family and tell them to do the same! We need to shine a light on this matter so that people understand what is happening.

Anonymous Coward says:

i hope it gets enaacted and net use dies completely

mans innovation will die off and we’ll have our VERY OWN DARKAGES in the modern era not thanks to the church but to hollywood, and you know what happened to the churches power….
people went underground with knowledge and they not only outlasted but grew in power enough they could challenge them.

SO we shall do same and go underground and hold it all safe n secret. ON TAPE REALS.

pacelegal (profile) says:


The copyright industry has been overly aggressive with respect to digital piracy. Maybe the lobbyists leverage the concern over pharmaceuticals and aircraft place.

However you would have to admit that counterfeiting has been a problem for over forty years in parts used in the automobile, aerospace, transport and electrical industries. There are thousands of parts in circulation and many installed in aircraft.

It is happening mostly in Russia and former Soviet republics like Lithuania, Latvia etc. China and Russia have been serial offenders. The present Russian regime makes the Tsarist regime look positively benevolent.

saima says:

Not too surprisingly, the ACTA supporters strike back, but keep in mind how to avoid some of the biggest problems here:
ACTA participants expressed their concerns about what they saw as an increasing level of counterfeitingaudi tt turbocharger and piracy. They said that the draft ACTA agreement does not conflict with TRIPS and other WTO provisions. They denied that the negotiated balance, distort or undermine the legitimate trade of the TRIPS flexibilities. One said that generic drugs would not be affected because the ACT does not deal with patents.

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