[September 23, 2014] We, the undersigned organisations and individuals, understand that ahead of Prime Minister Narendra Modi’s scheduled visit to the United States, the government has decided to review India’s positions on intellectual property rights (IPRs). We are concerned about the timing that has been chosen to undertake a Ministry-level exercise on India’s IPR policy and apprehend the proposed exercise could become a hostage to the pressures of the US government and companies.
[International Centre for Trade and Sustainable Development, Link] US-India trade ties have continued to worsen in recent weeks, with Indian Trade Minister Anand Sharma accusing Washington this week of “high and unacceptable protectionism.” The remarks from New Delhi’s top trade official comes after months fraught with tension, with the two sides openly sparring on topics ranging from renewable energy policies to patent protections.
[South Centre News Service, Link] The South Centre calls on WTO Members to Respect the Legitimacy of the Use of TRIPS Flexibilities for Public Health in light of new threats of unilateral trade measures by the United States against India over its Intellectual Property Laws and Regulations
This morning, Sen. Orrin Hatch spoke about international intellectual property issues at the U.S. Chamber of Commerce. He was the keynote at the organization’s launch of the second edition of its Global Intellectual Property Index. A video of the event is here, and Sen. Hatch takes the podium at 9:45.
Sen. Hatch argued that American history has shown strong intellectual property (IP) leads to prosperity. Research has shown that increased IP leads all countries to enjoy greater foreign direct investment, technology transfer and innovation. However, the “lesson is lost” in the developing world where countries try to develop through “short cuts” that “undermine” and “steal” U.S. innovation. India is the biggest battlefront, and Indian compulsory licenses based on nonworking are a big problem. Hatch warned that nothing in India’s patent laws limit compulsory licenses to pharmaceuticals, and he warned that other fields of technology such as cell phones or jets could be subject to compulsory licenses too.
Last week, The U.S. Trade Representative (USTR) submitted a report to Congress on the state of China’s compliance with WTO rules, including those on intellectual property (the TRIPS Agreement). The report states that “China has established a framework of laws, regulations and departmental rules that largely satisfies its WTO commitment.” [p.17] However, USTR wants China to strengthen laws that exceed the level required by TRIPS, and the report describes its efforts to strengthen the laws, and the enforcement of those laws, especially online.
Last Thursday the Energy and Commerce committee of the U.S. House of Representatives held a hearing entitled, “A Tangle of Trade Barriers: How India’s Industrial Policy is Hurting US Companies.” The hearing is part of a recent big business push which aims to support specific industry complaints against India by lumping them together, in order to claim that India is generally flouting international rules. The strategy could benefit Big Pharma by diverting attention away from access to medicines concerns.
Today a Subcommittee on Commerce, Manufacturing, and Trade of the House Energy and Commerce Committee held a hearing on the topic: “A Tangle of Trade Barriers: How India’s Industrial Policy is Hurting U.S. Companies.” Much of the hearing focused on intellectual property and pharmaceuticals, though other issues such as SOEs and subsides to local solar power firms were also discussed. All of the Committee Members who asked about IP – with the exception Henry Waxman – seemed to accept as a matter of fact that India’s use of compulsory licenses and restriction on patentability were a barrier to trade and a possible trade violation.
On June 18, 2013, 170 Members of Congress wrote to President Obama complaining about Indian trade policy and more particularly India’s intellectual property “climate.” Under the umbrella of claiming that policies of the Government of India favor domestic producers over U.S. Exporters – in other words, that India is protectionist – the Members of Congress claimed that “the intellectual property (IP) climate has become increasingly challenging in India.”
In this year’s Special 301 report, the United States Trade Representative listed Ukraine as a “Priority Foreign Country” (aka PFC), triggering a 30 day countdown to initiate an investigation under Section 301 of the Trade Act to determine trade sanctions. 19 USC 2412(2)(A). This is only the second time that the U.S. has threatened a WTO-member country with sanctions as a PFC. And thus it is an appropriate time to ask what restrictions the World Trade Organization places on the operation of the Special 301 program. As described more fully below, any sanction of Ukraine, including removal of General System of Preferences (GSP) benefits, would likely violate WTO rules. Indeed, the listing of Ukraine as a PFC, and the more general operation of “watch lists” threatening sanctions for intellectual property matters, could be challenged under the WTO even prior to any sanction actually going into effect.
In this year’s State of the Union Address, President Obama announced talks for a Transatlantic Trade and Investment Partnership with the European Union. This agreement will likely include provisions on intellectual property (IP), which are often controversial . If IP provisions are included, they will likely reflect language in existing treaties. Below is a comparison of language between two of the most substantive and recent free trade agreements (FTAs) adopted by the US and the EU for one controversial area of IP: liability for internet service providers (ISP) for infringing content.
Tobacco giant, Philip-Morris, brought actions this year under investor-State arbitration mechanisms in investment treaties to challenge laws limiting (in Uruguay) or prohibiting (in Australia) the display of its trademarks in tobacco packaging. This has caused the Australian government to take a strong stance against any investor-State arbitration provisions in free trade agreements (FTAs), including exemptions from the proposed investor-state settlement provisions of the Trans Pacific Partnership Agreement (TPP), currently being negotiated. However, a closer look reveals a broad collection of older treaties that do not contain exceptions in modern treaties that could have avoided this situation. As a multinational-enterprise, Philip-Morris has attempted to evade these exceptions by going through subsidiaries to bring claims under more favorable treaties. This reveals that Australia’s new stance against investor-State arbitration may do nothing to prevent similar claims being brought in the future.