DRM News

India has reportedly been speaking out against ACTA in negotiations for some time, and now we can really take a look at what they’re protesting. On the 9th of June, India issued an intervention to the World Trade Organization’s TRIPS (Trade Related Aspects of Intellectual Property Rights) Council with regards to the ACTA agreement. TRIPS is responsible for such things as copyright rights, performance/production rights, patents and trademarks.

The document is available here, but I’ll pick out a few key bits that really focus in on some major issues with ACTA as written now.

There is no doubt that IPR enforcement is an issue of fundamental importance, which India takes very seriously. However, our concerns emanate from levels of enforcement which far exceed those foreseen in TRIPS Agreement.

The TRIPS plus standards envisaged in RTAs and plurilateral initiatives like ACTA could short-change legal process, impede legitimate competition and shift the escalated costs of enforcing private commercial rights to governments, consumers and taxpayers. They also represent a systemic threat to the rights of legitimate traders and producers of goods, and fundamental rights of due process of individuals.

We are clear that IPR are private rights and it is not the responsibility of governments to defend each right but rather to provide means for individuals and firms to enforce such rights.

Another systemic concern is that IPR negotiations in RTAs and plurilateral processes like ACTA completely bypass the existing multilateral processes.

…even if some Members are not a party to plurilateral initiatives like ACTA, they could still have to enforce ACTA provisions due to cross referencing.

One ACTA option would mandate that each Party provide enforcement for the full range of IPRs infringement actions "at the border" of an importing country. This would permit IPRs holders to assert infringement and demand seizure of goods before customs administrative authorities, instead of initiating their claims in domestic courts.

Agreements such as ACTA have the portents to completely upset the balance of rights and obligations of the TRIPS Agreement.

What all of these quotes (and the entire document, really) have in common is that they point out how little power individual countries and their governments will have in actually crafting and enforcing their own laws as they see fit. A lot of enforcement measures will be utterly non-negotiable, and many can be enacted without the court system even becoming involved. Private companies will be able to use governmental agencies as their own personal copyright enforcement team. Any agreement where presumption of guilt is enough to seize goods, hold imports/exports and ignore negotiated trade and rights agreements already in place simply doesn’t sound like something all that great. And perhaps that explains the ludicrous level of secrecy wrapped around these negotiations, with ministers arguing that the citizens of countries have no right to know what’s being discussed.