CONCLUSION of ACTA

The Government of India has taken a strong stand against ACTA at international fora,
including the WTO. A paper submitted to the WTO in June 2010 by India states “They
[ACTA proposals] represent a systemic threat to the rights of legitimate traders and producers
of goods, and fundamental rights of due process of individuals.” India has also pointed out
that ACTA proposals break the “careful balance of the interests of the right holders on the
one hand, and societal interests, including development-oriented concerns on the other”6.
This position needs to be rigorously promoted and defended.

There have been positive signs of support pouring in from other similarly aligned nations
such as China, Brazil, and South Africa etc. Apart from working collectively with these

4
http://spicyipindia.blogspot.com/search/label/ACTA?updated-max=2009-02
20T13%3A09%3A00%2B05%3A30&max-results=20, visited on 10/9/2010
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http://spicyipindia.blogspot.com/search/label/ACTA?updated-max=2009-02-
20T13%3A09%3A00%2B05%3A30&max-results=20, visited on 10/9/2010
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Editorials, Patently Dangerous, Economic &Political Weekly, June 26,2010
countries, we need to develop our independent foreign policy on such contentious issues
which has been lacking over the years. Then, of course, there can be no united front against
such issues when there could be no consistency in our approach.

The issue of 'ceilings', was raised by the Indian delegation when it noted that 'in addition to
laying certain minimum standards, TRIPS Agreement also provides „ceilings‟, some of which
are mandatory and clearly specified in the TRIPS Agreement'. Essentially, they contend that
enforcement levels must be maintained in accordance with the Objectives and Reasons for
TRIPS and must not contravene its provisions under any circumstance.
The impediments to legal processes, an adverse impact on competition, potential trade
barriers and increased cost of IP enforcement for private commercial rights. Article 41.5 of
TRIPS states that no government is obligated to allocate equal resources towards IP
protection (private rights) and other laws in general. TRIPS-plus provisions contained in the
ACTA run contrary to it.

Cross-referencing (like in the EU-CARIFORUM agreement) mandates non-negotiating

ACTA nations to implement ACTA provisions as well, which is a serious cause for worry.
The Caribbean countries would find it increasingly difficult to account for the escalated cost
of enhanced IP enforcement mandated by the ACTA provisions.

The seizure of goods as an issue was repeatedly mentioned by Indian officials even before the
TRIPS Council meeting, since it involves a question of whether customs officials can seize
good in-transit, “suspected” of infringing trademarks, copyrights and other IPR's. The
standard for determining a 'prima facie' case warranting infringement that would inevitably
attract a seizure has been made so low that it goes against the TRIPS sentiment.

With the „in-transit‟ provisions, IPR holders can demand seizure of goods by custom
authorities without judicial intervention, which are contrary to TRIPS provisions (except in
the case of copyright piracy and TM counterfeiting). It ignores fundamental due process
issues such as knowledge standards, evidentiary requirements, competent investigation
authorities and time-frames. The Indian delegation has voiced its concerns in the words that it
produces a 'general shift in the locus of enforcement which enhances the power of IPRs
holders beyond reasonable measure' and significantly curtails the ability of an accused
infringer to defend ordinary claims of infringement.

A FICCI paper has referred to an EU study on ACTA, which opined that there would be an
infringement, if a medicine or product is made for which a company holds a patent in any
country irrespective of the lack of clarity involved in the scope and validity of the said patent.
Following the same line of argument, production of spare parts may also violate an
unexamined design right with unclear scope and validity.7

This document on ACTA cites the decision of the US Supreme Court in eBay Inc v. Merc
Exchange wherein the US Supreme Court has discussed the effect of grant of interim reliefs
on public interest. The Court has observed that an interim relief is effectively used as a
bargaining tool when the terms of a license are negotiated with the infringer and that the
threat of an interim relief could help a right-holder in unduly gaining an upper hand in the
negotiations.

7
www.spicyipindia.blogspot.com/2010/05/in-acta-india-does-not-trust.html, visited on 10/9/2010
Asian Academic Research Journal of Social Sciences & Humanities
www.asianacademicresearch.org
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Further, the US Supreme Court asks Courts to wake up to the possibility of interim reliefs granted to
broadly-worded patents acting as stumbling blocks to advancement of public interest. Therefore, the
Court has advocated grant of damages over interim injunctive relief, where appropriate

Asian Academic Research Journal of Social Sciences & Humanities