Leaked IP Chapter Of India-EU FTA Shows TRIPS-Plus Pitfalls For India, Expert Says

New Delhi – Indian negotiators are reportedly under tremendous pressure to give in to the European demands for a more rigid intellectual property rights regime in the ongoing discussions on EU-India free trade agreement, suggests a leaked draft text of the chapter on IP which is being negotiated.

The leaked text has been uploaded on the portal of Knowledge Ecology International (KEI), an international NGO that tracks debates around intellectual property policy and practice worldwide. At the time of writing, there has been no official confirmation or denial about the veracity or otherwise of the leaked document from the Indian government. Chief negotiators of the two sides are scheduled to meet next week in Brussels. Activists with whom Intellectual Property Watch spoke said they did not expect the Indian government to react to a leaked text.

Shamnad Basheer, a well-known Indian IPR lawyer, told Intellectual Property Watch that “the governments of India and the EU ought to immediately make these documents public without one having to second guess whether or not these leaks are authentic. “

“It is rather paradoxical that while Indian treaties that allegedly bind the country are negotiated in secret, our regular laws are deliberated upon and discussed widely prior to adoption by Parliament,” Basheer said. “Treaties should also be opened up in a similar manner. Else the government may sign on to provisions that harm the public interest and that ultimately will not be ratified by India’s Parliament. This can be hugely embarrassing for India from an international standpoint.”

“We must bear in mind that India is a dualist country and no treaty provision can be effective in India till it is legislated upon by Parliament,” he said. “Therefore, we need to effectuate amendments such that all treaties are made public and are signed only after being placed for discussion and deliberation before India’s Parliament.”

If the leaked text turns out to be real, the main concern is that India may be signing on to an IPR regime that goes beyond what is mandated in the 1994 World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

“Some of the FTA provisions are certainly TRIPS plus,” said Basheer. “Illustratively, Article 22 (3) is extremely far-reaching in that provides that in certain cases of infringements, the defendant’s property may be seized and his bank accounts frozen. Similarly there are several provisions that now provide for intermediary liability, which was absent in TRIPS. The official stand of the Indian government when this FTA was initially being negotiated was that India would not go TRIPS plus. If that continues to hold good, the government ought to take a strong stand and not cave in to provisions that are clearly TRIPS plus.”

Basheer asserts that “it is very distressing to note that none of these FTAs ever take into account the rights of the general public or those of competitors or users. Rather, these treaties increasingly confer additional rights to IP owners and fail to secure reasonable protection for the public or for competitors, users and alleged infringers.”

“Notably, Article 20 states that courts should have the power to grant ex parte orders to collect allegedly infringing evidence, but does not provide for any protection for a bona fide defendant whose premises are wrongly raided,” he said. “Safeguarding the interests of alleged infringers and the wider public is absolutely critical particularly in the Indian context where courts are rather promiscuous about grating ex parte orders, even in patent cases.”

Indian activist groups such as the Delhi Network of HIV positive people (DNP+) have been campaigning for more openness in the India-EU FTA negotiations. In a recent public statement, Vikas Ahuja and Loon Gangte noted that “in 2010 – 2011, the EC agreed to withdraw two harmful IP provisions from the text of the negotiations on the IP Chapter. [Karel] De Gucht, the European Union Trade Commissioner, in May 2010 asserted that the EC negotiators would no longer pursue the issue of supplementary protection, then in 2011 committed that the harmful data exclusivity clause would no longer be part of the EU/India Free Trade Agreement text. But the European Commission is now slyly pushing the following harmful IP enforcement and investment provisions in the FTA negotiations with India.”

India and the 27-nation European Union have been negotiating the Bilateral Trade and Investment Agreement (BTIA) since mid-2007 but differences between the two sides on several issues have led to the delay in concluding the talks. Intellectual property rights has been one of the sticking points. “We are in a very advanced stage of reaching an agreement in one of the most ambitious trade and investment agreements between India and the European Union,” Anand Sharma, India’s Commerce and Industry Minister told a group of industrialists in Delhi earlier this month.

The broad objective of the free trade agreement is to reduce tariffs on goods and liberalise services and investments provisions. The EU is India’s largest trading partner accounting for approximately € 86 billion in trade in goods and services in 2010. Bilateral trade in goods alone rose by 20% between 2010 and 2011.