[Delhi Network of Positive People] With the goal concluding the agreement by early April fast approaching, negotiations have now reached an intense phase with regular meetings to fast track its conclusion. The Indian Prime Minister has reportedly asked the Indian Commerce Minister to push the Department of Industrial Policy & Promotion – in charge of the intellectual property (IP) negotiations – to settle their differences with the EU negotiators on IP so that it facilitates the signing of the FTA next month.
This ‘settling of differences’ during a hasty and rushed negotiation process is of grave concern, as it could lead to harmful IP enforcement and investment provisions being accepted in the agreement.
It also undermines democratic parliamentary process, given there is currently a Parliamentary Standing Committee on Commerce examining FTAs, with the Indian government and the EC intensifying their efforts to conclude the EU-India FTA before the parliamentary report and debate process ends.
The agreement, once concluded and signed, will become binding, and will set a precedent for intellectual property and investment standards in all future trade agreements between India and developed countries (US, EFTA). It also sets a negative precedent for other developing country governments (e.g.Thailand) who are being pressurised to accept equally harmful IP provisions by the EU.
What concerns remain:
In 2010 – 2011, the EC agreed to withdraw two harmful IP provisions from the text of the negotiations on the IP Chapter. 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:
IP CHAPTER ENFORCEMENT MEASURES – If accepted by India, pharmaceutical companies can easily abuse these provisions and use them as a commercial tactic to delay or destroy generic competitor’s medicines as it has to merely claim but not immediately prove that their IP is being infringed. These measures include legitimate medicines being blocked from leaving India on their way to people in developing countries (border measures). In addition, domestically the measures could implicate third parties —such as suppliers of active pharmaceutical ingredients (API) used for producing generic medicines, distributors and retailers who stock generic medicines, and treatment providers— and embroil them in court cases simply for buying or distributing generic medicines. As a result of these provisions, third parties are at risk of injunctions, provisional measures and severe economic losses. The measures also seek to curb judicial activism in India as courts seek to balance intellectual property rights with people’s constitutional right to health. The EU is trying to fundamentally change how Indian courts and judges handle cases involving intellectual property disputes on medicines.
INVESTMENT RULES: The investment chapter of the EU India FTA would further expand the ability of foreign investors (essentially, multinational corporations) to sue for billions of dollars if national laws, domestic policies, court decisions or other actions interfere with the ‘enjoyment’ of their investments – even if the government’s actions are in accordance with its constitution and national laws.
India could thereby be at risk of being sued if, for example, the government, courts or the patent office reject, override or revoke a patent on a medicine to increase access to a medicine. This is in fact already happening in Canada, where Eli Lilly is threatening to sue the government of Canada under similar investment rules included under NAFTA because its courts revoked a drug patent considering it did not adequately meet the criteria for patentability.
It is also in conflict with the current process of review that the Department of Economic Affairs is undertaking of existing provisions in bilateral investment agreements, given there is a growing threat of possible claims being filed in arbitration by investors for billions of dollars against India challenging its domestic policies, legislation and court decisions in a number of key sectors.
What needs to happen?
The Indian government is in a stronger negotiation position than many other developing countries who are negotiating FTAs with the EC and the US (TPPA). The Indian Government needs to stand strong and push hard for the removal of the IP enforcement measures from the IP chapter and the investor to state dispute provision from the investment chapter. The Indian government needs to wait till the parliamentary standing committee concludes its process of examining FTAs and not rush into signing this agreement.
Civil society and PLHIV networks across the world need to support us in this unequal and conclusive battle against the unfair demands of the European Commission on IP enforcement and investment standards.
Write letters, appeals, petitions to Indian policy makers and representatives in your country asking them to not give in to EU pressure.
We request organizations and individuals across the world to join Delhi Network of Positive People this month to issue an appeal to the Indian government to ‘not sign on’ to the IP enforcement and investment provisions. DO NOT TRADE AWAY OUR LIVES!
Protest against the EU – The EU should drop its pretence that it supports access to medicines and is concerned about the lives of patients in developing countries. The IP enforcement agenda of the EU was evident when it started to seize Indian generic medicines on their way to Africa and Latin America. Now three years later, the pressure on India – to blindly adopt IP enforcement provisions in the FTA – highlights its continued indifference to loss of lives in developing countries.
Come join us – in our protests against the European Commission!
Vikas Ahuja & Loon Gangte
Delhi Network of Positive People
New Delhi, India