Friday, April 20, 2012
No pyar with IPR
Sopan Correspondent/ New Delhi
Thousands protest against damaging provisions in the EU-India free trade pact
Over one and a half thousand protesters took to the Delhi streets recently crying "Europe, hands off our medicine" as they voiced their opposition to the EU-India Bilateral Trade and Investment Agreement (BTIA) that is currently being negotiated between the European Union and India. The BTIA, or Free Trade Agreement (FTA), in common usage, is being negotiated since 2007 and while voices of analysts, activists and people whose lives will be directly affected have risen in protest, the determination on both sides to reach "an ambitious agreement" continues unabated. The EU-India Summit, held on 10th of February, was to see the culmination of these ambitions, activists feared.
Protesters carried a giant medicine pill through the streets of Central New Delhi, the powerful visual imagery highlighting India's role as the "pharmacy of the developing world" which faces a severe challenge from EU's demands to include harmful intellectual property (IP) provisions in the FTA. "No pyar with IPR" (no love with IPRs), rhymed some of the banners.
Affordable medicines produced in India have played a major role in scaling up HIV treatment to more than 6.6 million people across Asia, Africa and Latin America. The EU has repeatedly asked for intellectual property rights (IPR) commitments that will make India commit to standards that go way beyond its TRIPs commitments made at the WTO. This, analysts feel, will severely undermine the producing and marketing capabilities of the generic medicine industry in India which produces medicines at low cost for the world, and will threaten the access to cheap medicines worldwide. Indian generic medicines currently cater to the treatment of critical diseases such as HIV/AIDS and cancer. In a press release by several health groups on the 10th, Intellectual property enforcement measures, data exclusivity on medicines and investment protection are cited as some of the major damaging provisions that threaten access to medicines in India and the world.
Data exclusivity in medicines will prevent the use of trial data submitted by multinationals that are generally used to grant marketing licenses to smaller generic companies for similar drugs. Under enforcement measures, the EU wants to bring in third party liabilities, exposing active pharmaceutical ingredient (API) manufacturers, drug distributors, and treatment providers to the risk of patent enforcement. The EU also wants 'provisional injunctions', where courts are given powers to issue orders to prevent suspected but not yet proved infringement. Medicines can also be seized on a mere suspicion or allegation of patent or trademark infringement. In the past the EU has imposed so called border protection (enforcement) measures against Indian drugs in transit which were going to non EU countries through the EU. Now it wants to legalise such illegal activities through the FTA.
Further, its investment provisions will compel the Indian government to recognise IPRs as an investment and therefore protect EU companies' IPRs (including data) under the investment protection clauses. This will erode the government's policy space to prevent aggressive use of such IPRs in the interest of public health and access to medicines. All these provisions can severely undermine the access to medicines for the worlds' needy especially the poorer. Though the Indian government has announced it will not give in to TRIPS plus demands from the EU, TRIPS plus demands seem to be very much on the table at the negotiations.
The EU-India Summit was to announce some kind of an understanding or perhaps set the broad terms of the agreement. Not surprisingly, protests by patient groups from India and far corners of the world such as Africa, reached a crescendo friday morning. Protests by health groups took place not only in Delhi but across the world, in Malaysia, South Korea, Thailand, and in several African countries all of which fear loss of access to crucial and cheap medicine supply from India. A day earlier, activists delivered coffins to the office of the European Delegation to India.
The patients groups were joined by farmers' groups from northern India, dairy farmers from south India, small retailers, students and activists from all over, all of whom are severely worried about the impact of this FTA on the lives of ordinary people, including on their access to jobs, incomes, medicines, food, finance and natural resources……the list seems endless but these concerns seem to be increasingly validated by the numerous reports and analyses pouring in.
Provisions in this FTA include liberalisation of India's goods and services sectors including sensitive sectors like agriculture, retail, banking and key industries such as cars. Projections show that in opening up goods trade to the EU, India stands to lose more than it will gain. Boosted by high European agricultural subsidies which cannot be negotiated under the FTA, the EU is estimated to increase trade by 321 and 150 million USD in agro food and in products of animal origin in 2020 (compared to 2006). In comparison India is estimated to gain only 83 and 1 million USD worth of trade. In cereals EU will gain 133 million USD while India will gain 1 million USD (CEP II-CIREM Study 2007).
Even in industry, projections show that European goods will enter the Indian market in vehicles (1802 million USD by 2020) whereas the Indian industry will gain only 87 million USD in 2020. The Society of Indian Automobile Manufacturers has come out with strong words of protest against the proposed tariff reduction in the FTA. But EU's penetration into Indian market will be across all industry and manufactures where EU is to gain 7947 million USD by 2020. Only the textile, leather and garments sectors will benefit visibly in India and these gains may not even be realised due to EU's high standards and other technical barriers.
The service sector is supposed to be one of the key attractions for India, including under Mode 4 which is supposed to promote the movement of Indian professionals to the EU. But again EU's multitude of barriers poses a significant obstacle, unlikely to be removed by the FTA. On the defensive front, analysts fear that EU's demand for entry into retail will threaten jobs in informal sectors and its full access to India's banking and financial services will leave India open to systemic risks from unfettered capital flows and regulation, and compromise financial inclusion in the country.
Not satisfied with this, the EU wants much more than what India has committed in its past agreements, even with developed countries such as Japan. Apart from TRIPS plus commitments in the IP chapter, the EU also wants market access for its investors and investment protection at very high standards and access to India's government procurement market which the Indian government uses as a policy tool for addressing development inequalities by giving preferential access to women, marginalized communities and SMEs. The vast multitude of EU's demands in sensitive segments can severely threaten India's policy space including its development policy instruments.
During the Summit however, leaders gave out no more than a broadly optimistic statement without going into specifics. India's Prime Minister Manmohan Singh said "there are obviously some problems but we are confident that those problems can be resolved and will be resolved. Both of us have reaffirmed our commitment to an agreement as early as possible of the broad based trade and agreement." The president of the European Council, Herman Van Rompuy, said the negotiations are going well but also mentioned "we value substance over speed". The European Commission President José Manuel Barroso seemed more optimistic and named Autumn 2012 as the target period to seal the deal. Leaders from both sides are now to supervise the negotiations closely so that an early agreement can be reached. However the failure to come out with something substantial at the summit is perhaps an indication that EU's corporate lobby and large retinue of resource persons are not getting all they want from India. With the Eurozone crisis, EU's market has lost some of its appeal for Indian producers and EU is hardly in a position to absorb Indian workers at the cost of jobs at home.
With global consciousness on critical development concerns around this FTA picking up pace rapidly, there is also increasing pressure on both sides not to make monumental mistakes that will threaten India's development and will be a major face loss for EU. But it is clear that pressures must be kept up if the world is to get its cheap medicines, Indian farmers are to hold onto their land and production, and small retailers are to retain their businesses. If the society as a collective does not join the thousands protesting around the world, then in this labyrinth of shadowy deals and aggressive bargaining, people's voice may be lost for ever.