India And China Claim That ACTA Violates Earlier IP Agreements

from the at-least-someone's-fighting... dept

Fri, Jun 18th 2010 3:11am — Mike Masnick

Recently, we noted that India and some other countries were gearing up to oppose ACTA, as it presents a huge problem for a variety of developing countries. India should know. It's still getting over the troubles created by TRIPS, which forced it to make some massive changes to its IP laws, which multiple studies have shown to have caused trouble for India. So it doesn't seem to keen to sign up for yet another, even more draconian, set of IP rules. Michael Geist points us to some notes from the recent WTO meeting where India (along with China, and some other developing nations) expressed their serious concerns with ACTA, including that it appears to violate the TRIPS agreement that they've already signed onto:

Briefly, China's and India's lengthy statements argued that ACTA and other agreements could:

Conflict with TRIPS Agreement (a reference to TRIPS Art.1.1) and other WTO agreements, and cause legal uncertainty
Undermine the balance of rights, obligations and flexibilities that were carefully negotiated in the various WTO agreements
Distort trade or create trade barriers, and disrupt goods in transit or transhipment
Undermine flexibilities built into TRIPS (such as for public health, and trade in generic medicines)
Undermine governments' freedom to allocate resources on intellectual property by forcing them to focus on enforcement
Set a precedent that would require regional and other agreements to follow suit. (One example cited was negotiations involving CARIFORUM, the group of Caribbean states. However, a delegation representing CARIFORUM said it understood the concerns but denied that CARIFORUM would have to apply ACTA's provisions.)
They also argued that the focus on enforcement did not take into account a country's level of development.

A number of developing countries broadly supported the concern.

Not too surprisingly, ACTA supporters hit back, but note how they avoid some of the bigger issues here:

ACTA participants voiced their concerns about what they saw as a steadily increasing level of counterfeiting and piracy. They countered that the draft ACTA agreement will not conflict with TRIPS and other WTO provisions. They denied it would upset the negotiated balance, distort legitimate trade or undermine TRIPS flexibilities. One said generic medicines would not be affected since ACTA does not deal with patents.

They said that ACTA was necessary because counterfeiting is no longer a question of products such as fake luxury watches, but involves commercial scale production of fake medicines, car and aircraft parts and other products, which are dangerous to health and safety, and that developing countries are particularly vulnerable.

Some of them also said they had to get together outside the WTO because countries had opposed discussing enforcement substantively in the TRIPS Council.

That claim about ACTA not dealing with patents is news to us. Both the leaked and the released draft still had language suggesting that at least some negotiators used language such that ACTA applied broadly to all intellectual property. If they're really dropping patents from ACTA, that would certainly be news. Jamie Love noted at a recent meeting that Steve Metalitz, who is a lawyer representing the entertainment industry, has said that patents are being dropped from ACTA. Hopefully it's true, but until we actually see that, who knows whether it's really happening.

As for the claims that ACTA is "necessary," that's clearly bogus. Also, it's amusing to note that the "necessary" part focuses on the typical fear mongering points of fake medicines. If they want to stop fake medicines and fake aircraft parts, fine. Then create a document that does that. The problem is that ACTA supporters hide under those claims to lump in a ton of unrelated stuff, which is where many of the concerns come from.

Separately, Love also notes that Metalitz claims that it's "not appropriate" for trading partners to discuss fair use in ACTA. Huh? This is an argument we've seen before, and it makes absolutely no sense. ACTA's copyright provisions include all sorts of aggressive enforcement requirements, and without clear fair use exceptions, those enforcement rules strip copyright of most of its key balancing points. The whole ACTA process continues to be a sham.

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Filed Under: acta, china, copyright, enforcement, india, intellectual property, patents, trips

28 Comments

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Anonymous Coward, 18 Jun 2010 @ 4:06am

and everyone thought commies were horrible lol
but seriously im glad that someone realizes how stupid acta i, especially since they basically own half of america
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Dagnammit, 18 Jun 2010 @ 4:48am

srs business here.

US citizens should be less sensitive to criticism and pay attention to the patterns of emerging tiranny. What is going on is:

1. Overly eager adoption of belic vocabulary. You guys are waging "war" over everything. Terrorism, drugs, piracy, BP's oil spill. Get a grip, folks.

2. Gradual elimination of individual rights to appease the industry. The easiest example to mention in Techdirt is the war on piracy, but it goes beyond that. Your public transportation is scrapped down to benefit auto makers. And don't get me started on pharmaceuticals and healthcare.

3. The official (by official I mean governmental) reaction to most criticism is an attempt to frame the critic as a terrorist or anti-american, in an ad-hominem strategy to dismiss the criticism.

Even if you disagree with points 1 and 2, I'd like to point out that you'll see massive evidence of point number 3 in the news in the following days, as news anchors talk about how evil India and China are. Enjoy your monolithic mass media, guys.
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Dagnammit, 18 Jun 2010 @ 4:49am

new buttons
omg check out the new buttons in the comments! this is win, techdirt!
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Dagnammit, 18 Jun 2010 @ 4:52am

Sorry for the spam, but may I suggest you folks add buttons for "hateful", "confusing", "off-topic"? I don't care if my comments are marked with all those.
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Hoeppner, 18 Jun 2010 @ 5:39am

Re:
If a topic isn't bad enough to use the catch all report button, it's not bad enough to remove.
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Anonymous Coward, 18 Jun 2010 @ 5:40am

"As for the claims that ACTA is "necessary," that's clearly bogus" - it isnt surprising that you have this opinion, but there are plenty of good reasons for an agreement such as acta. i think that acta doesnt align with your worldview on things, and as such, you are unlikely to ever find anything good or useful in it.
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JEDIDIAH, 18 Jun 2010 @ 6:17am

Nonsense and Redundancy
> but there are plenty of good reasons for an agreement such as acta

Such as?

One of the points made by India is the fact that such agreements already exist.

Once key problem with ACTA (besides it's clandestine nature) is the fact that music piracy is being conflated with counterfeit pharmaceuticals. It's like a bad piece of American legislation with all manner of stealth provisions and pork barrel projects attached to it.
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Hangor, 18 Jun 2010 @ 7:18am

Knowledge and technology for human benefit is free
Imagine if China and India open up their ancient scriptures and start enforcing the knowledge in there which is being used in many areas currently. Humanity would be screwed. '0' Zero was invented in India. Imagine a world where use of zero is restricted
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Anonymous Coward, 18 Jun 2010 @ 7:27am

Re: Nonsense and Redundancy
"Such as?" - the most important is the idea of balance between different countries. it makes it much easier for companies to allow their ip to be used in a country if they feel it is not going to be stolen. india and china are complaining because they have some of the biggest issues with counterfeiting and illegal use of ip. of course they are complaining. sort of like a drug dealer complaining because the five oh are messing up his street corner selling operations.

"Once key problem with ACTA (besides it's clandestine nature) is the fact that music piracy is being conflated with counterfeit pharmaceuticals. " - in the end, they are the same thing. someone created it, others should not profit from that creation without permission.
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Killer_Tofu (profile), 18 Jun 2010 @ 7:33am

Re: Re: Nonsense and Redundancy
You sir, are welcome to bend over and let them stick the brain monitor up your ass to make sure you don't see any infringing material throughout your life but I will not stand by idly and let you and your ilk screw over my freedoms and right to privacy. You can all go pound sand.
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Anonymous Coward, 18 Jun 2010 @ 7:49am

Re: Re: Re: Nonsense and Redundancy
nobody suggests for a minute anything like you are talking about. you are free to stay on your remote farm with your militia and arm yourself against the upcoming armageddon, while the rest of us will continue to understand that freedoms are not an absolute, when they infringe on the rights and freedoms of others.
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Hephaestus (profile), 18 Jun 2010 @ 7:50am

Re:
"it isnt surprising that you have this opinion, but there are plenty of good reasons for an agreement such as acta."

Yes there are, and they are all about corporate profits, preventing competition, and granting monopoly rights to corporations.

You seem to be under the mistaken impression that ACTA will protect corporations and keep things unchanged. Short term it might, long term it wont. All this industry wish list does is create an artificial level of support. It makes any new disruptive technology much more likely to cause a major collapse in the industries ACTA is designed to protect.

Feel free to support ACTA all you want. History is full of examples of failures associated with this sort of protectionism.
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Anonymous Coward, 18 Jun 2010 @ 8:01am

Re: Re: Re: Re: Nonsense and Redundancy
so its ok to infringe on my rights as long as im infringing on yours?
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Joel (profile), 18 Jun 2010 @ 8:33am

Oh ACTA
People ACTA is the worst of all of our fears, it is just a massive compilation of what is going to constrain innovation. If ACTA does ever come to fruition the whole world will be screwed, if a person can't create because they will be infringing on someones I.P. then who is going to benefit?

We have to find a way to inform the people of what is going on, I still haven't seen anything on the news or 60 Minutes or anything of that sort; people don't know what is going on and there are many companies that need for ACTA to become "law" yet the world needs for it to fail. If things like this are going to be the norm with ACTA what is going to happen to humanity?? We have to stand up and find a way to communicate, inform your friends and family and tell them to do the same! We need to shine a light on this matter so that people understand what is happening.
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Anonymous Coward, 18 Jun 2010 @ 9:04am

i hope it gets enaacted and net use dies completely
mans innovation will die off and we'll have our VERY OWN DARKAGES in the modern era not thanks to the church but to hollywood, and you know what happened to the churches power....
people went underground with knowledge and they not only outlasted but grew in power enough they could challenge them.

SO we shall do same and go underground and hold it all safe n secret. ON TAPE REALS.
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Anonymous Coward, 18 Jun 2010 @ 9:31am

Re: Re: Re: Re: Nonsense and Redundancy
My right to copy is greater than your right to prevent me from copying.
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Anonymous Coward, 18 Jun 2010 @ 9:33am

Re:
ACTA stands for the Anti-Counterfeiting Trade Agreement and it leaves out Brazil, Russia, India and China who are probably the biggest counterfeiting countries on the planet. And there's a whole bunch about copyright, which is not about counterfeiting, in ACTA.
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harbingerofdoom (profile), 18 Jun 2010 @ 12:18pm

Re: Re:
true, but i think we should have a button labled "WTF?!" added in as well.
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harbingerofdoom (profile), 18 Jun 2010 @ 12:24pm

Re:
it is bogus.
you can sit there and say "oh there are plenty of good reasons for it" all day long.

but that does not make it a necessary thing that we cant live without.

besides, ACTA doesnt really align with most peoples world view. it really only aligns with those who seek to control IP as a means to keep archaic business methods that can not be supported in any other way in todays marketplace alive and kicking and those that profit from bribes kickbacks campaign donations and the insane amounts of legal fees
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Killer_Tofu (profile), 18 Jun 2010 @ 12:45pm

Re: Re: Re: Re: Nonsense and Redundancy
My right to privacy trumps your rights to assume I am guilty and must be a criminal without any proof.
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Anonymous Coward, 18 Jun 2010 @ 1:24pm

Re: Re: Nonsense and Redundancy
Might I remind you that the United Stats has long been known to be copying German designs prior to WWII. Where do you think our rocket program came from, Mormon fundementalists?

Do as I say and not as I do?
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Anonymous Coward, 18 Jun 2010 @ 2:16pm

Re: Re: Re: Nonsense and Redundancy
Yeah, like we're going to allow IP rights for our /enemy/ when we're at a state of war? Real war, with bombs, fires, people /dying/? How f'ing stupid are you?

Let's also completely ignore the fact that our rocket program came about when the GERMAN SCIENTISTS DEFECTED to the US. Sure. US Haters: Rewriting history all over, again.
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Nastybutler77 (profile), 18 Jun 2010 @ 3:47pm

Re: Re: Re:
I think a TAM button would be usefull as well.
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pacelegal, 22 Nov 2010 @ 8:13pm

ACTA
The copyright industry has been overly aggressive with respect to digital piracy. Maybe the lobbyists leverage the concern over pharmaceuticals and aircraft place.

However you would have to admit that counterfeiting has been a problem for over forty years in parts used in the automobile, aerospace, transport and electrical industries. There are thousands of parts in circulation and many installed in aircraft.

It is happening mostly in Russia and former Soviet republics like Lithuania, Latvia etc. China and Russia have been serial offenders. The present Russian regime makes the Tsarist regime look positively benevolent.
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ash, 21 Dec 2010 @ 5:43am

Regardless
Regardless of who is right or wrong here, I would say that when items cherrypicking EU directive and online dating into binding international agreements that are safely within the Turkish case definition of "legislative" and / or legislative measures
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saima, 18 Jan 2011 @ 11:34pm

Not too surprisingly, the ACTA supporters strike back, but keep in mind how to avoid some of the biggest problems here:
ACTA participants expressed their concerns about what they saw as an increasing level of counterfeitingaudi tt turbocharger and piracy. They said that the draft ACTA agreement does not conflict with TRIPS and other WTO provisions. They denied that the negotiated balance, distort or undermine the legitimate trade of the TRIPS flexibilities. One said that generic drugs would not be affected because the ACT does not deal with patents.
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