More notes on the India EU FTA (BTIA)

Earlier KEI published sections of the the EU India Negotiating FTA/BTIA negotiating text dealing with enforcement, along with some commentary on Article 17-31: /node/1681.

On March 28, 2013, KEI obtained another document with Article 1-5,7-8,10-33 of the negotiating next. The new text is available at /node/1691

Krista Cox will be providing her impressions here: /node/1693

Here are KEI’s quick reactions to the text.

Among the provisions in the TRIPS which protect consumers are Article 7, 8 and 40.

Articles 7 and 8 are both included by reference in the India/EU FTA.

A weaker version of TRIPS Article 40 is provided as paragraph 2 in Article 5 on the transfer of technology, a context that makes it less useful. Article 40 of the TRIPS includes this language: “Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market.”

Article 4 on the Nature and Scope of Obligations says:

“The Parties agree on the importance of harmonizing intellectual property protection and enforcement laws within their territory, in order to ensure that different intellectual property laws and regulations are not imposed by various member countries on the same intellectual property.”

This raises a question for Europe. When one country grants an exception, a compulsory license or an extension of a patent, does everyone else have to follow?

EU wants 70 years for certain related rights, and 50 years for “broadcasting organizations”.

EU is pressing for an inalienable resale right.

India has agreed to sweeping language the protection of technical protection measures (TPMs) and digital rights management (DRM) information.

The technical protection and DRM measures are defined quite broadly. The agreement also provides for limitations on TPM protections to persons who have “legal access to the protected work or subject matter.”

Article 7.9 of the copyright section provides for a tough three step test, making it harder for India or EU to use the exceptions on the Berne that are not now subject to a three step test, and in general, one that is more restrictive than TRIPS, Berne, Rome or WCT. It seems to KEI that India has been much better in the current WIPO negotiations on the three step test than they are in their own FTA with the EU. The language of Article 7.9 and the Article 24 on injunctions are among the bigger mistakes by India.

There is nothing in the copyright text dealing with the cross border exchange of files for persons with disabilities.

In Article 8.3, the EU is pushing for greater protection for “well-known” trademarks.

The exceptions language for trademarks (Article 8.4) is much better than for copyright, and among other things, is really a one step test that considers “legitimate interests of the owner of the trademark and of third parties.”

Article 9 on GIs is missing.

Article 10 on “Genetic resources and Associated Traditional Knowledge” and Article 11 on Traditional Knowledge have almost no agreement.

The text in Article 12-12.6 on designs is without brackets.

Article 13 is the language on the the Doha Declaration, and it seems fine.

The Article 14 language on the protection of pharmaceutical test data does not require exclusive rights for test data.

Interestingly, in the Article 15 language on data protection for plant protection, the EU takes a harder line than for pharmaceuticals, tabling nine paragraphs of text, including paragraphs 15.5 to 15.9 which creates a system of cost sharing to avoid duplicative testing of vertebrate animals – responding to the EU lobby on ethical treatment of animals.

As noted above, KEI’s earlier commentary on Articles 17-31 is available here: /node/1681.