India launches offensive against ACTA, cites "due process"

By Nate Anderson | Ars Technica

We mentioned recently that India was rounding up opposition to the Anti-Counterfeiting Trade Agreement (ACTA) and that it wanted to stop the deal from being made outside of existing international institutions. This week, it made good on its promise to object.

The new standards envisioned by ACTA "could short-change legal process, impede legitimate competition and shift the escalated costs of enforcing private commercial rights to governments, consumers and taxpayers," said an Indian representative at the World Trade Organization. "They also represent a systemic threat to the rights of legitimate traders and producers of goods, and fundamental rights of due process of individuals."

One key area of concern is ACTA's permission for customs agents to seize goods "in transit" between countries, even if those goods are legal in both the sending and receiving countries. "Let me give an example," said the Indian rep. "India's right to exercise flexibilities, such as granting compulsory licenses, would be interfered with by the mandatory application of border measures to goods in transit. Indian exporters could be constrained from shipping goods produced under its own exception to countries where there is no applicable IPRs protection because transit may be blocked by an intervening transit country’s application of domestic IPRs."

Generic pharmaceuticals are the big concern here. Countries like India sometimes create "compulsory licenses" in which drug firms can pay a set amount to the government and can legally use another organization's patented material, whether that organization wants them to or not. The US has similar compulsory licenses for things like music.

India also expressed irritation over the fact that "plurilateral processes like ACTA completely bypass the existing multilateral processes" at the WTO and elsewhere.

In the end, ACTA looks like overreach. "The released ACTA text shows a general shift in the locus of enforcement which enhances the power of IPRs holders beyond reasonable measure," said India. "Politicians, civil society and IP experts in ACTA members countries, have expressed concern regarding the substance and modus operandi of ACTA negotiations... Even the US Government Accountability Office (GAO) has recently raised serious questions concerning the data that has been relied on by proponents of the ACTA to support the effort."

India demanded that the WTO take up these issues and not "remain a silent observer to such a development."