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TPP: Could India Stand To Lose?

Published on Sat, Dec 26,2015 | 16:44, Updated at Tue, Dec 29 at 23:20Source : CNBC-TV18 |   Watch Video :

Spanning 12 countries and seven years in the making, the TPP or Trans Pacific Partnership is the most ambitious American Free Trade Agreement to date. While it seeks to liberalise the rules for trade and investment, critics are worried about the provisions on intellectual property and dispute settlement. Even a non-participating country like India could stand to lose. Rohit Pathak attends the Global Congress on Intellectual Property and Public Interest to find out if this Made In America Free Trade Agreement can hurt us.

On October 5, 2015, President Obama released the text of the Trans Pacific Partnership.

It’s the largest free trade agreement USA will participate in, involving 12 countries so far and 37% of the total us goods and services trade.

The TPP will eventually eliminate all tariffs on manufactured products and most agricultural goods.

It’s provisions also cover
•    Trade in services
•    Digital trade
•    State owned enterprises
•    Intellectual property
•    Labour laws
•    Environmental protection

PARTNER COUNTRIES
Australia
Canada
Japan
Malaysia
Mexico
Peru
United States
Vietnam
Chile
Brunei
Singapore
New Zealand

Matthew Kavanagh
Senior Policy Analyst, Health Global Access Project
I actually think that there isn’t a reason for the TPP. The reason that it has been put forward is that the United States and other countries have said that we need a “21st century” is their term, trade agreement. In fact what they want is trade agreement that goes far beyond what the World Trade Organisation has allowed and what is required of countries based on the World Trade Organisation rules. There is actually no need to do the TPP unless what you want is to increase the power of multinational corporations based in the United States.

Burcu Kilic
Legal Counsel, Global Access to Medicines, Public Citizen
Only 5 of them are related to trade and the other 25 chapters are focusing on rules and pushing for the governance model which will work in best interest of the US industries.

THE TPP SEEKS TO BOOST IPR PROTECTION BEYOND CURRENT WTO PROVISIONS IN THE TRIPS AGREEMENT.
•    Patents can be granted for new uses, methods of using & processes of using a known product
•    8 year data exclusivity for biologics & pharmaceuticals  
•    Restrictions on compulsory licensing by governments

Matthew Kavanagh
Senior Policy Analyst, Health Global Access Project
International corporations are trying to expand their ability to actually have not just a patent but to have a patent for longer, to be able to make small changes in drugs that don't give any increased benefit to patients and still get a longer patent on it. Those would be barriers to people accessing affordable generic versions.

Chandini Raina
Professor, Centre for WTO Studies, IIFT
Provisions in data exclusivity and the patent term extensions are going to make the patent term itself an uncertain period. So, there will be different periods of protection in different countries in the TPP meaning that Indian companies which are generic producers and which are major suppliers to the international market would be unable to make investment decisions. With uncertainty it makes it difficult for companies to put in that kind of resource if the market is uncertain for a particular product. In a situation where there is allowed ever greening, that a patent can be ever greened for new indications or for new improvements  or for new uses of the known substance and that there is also ever greening of data exclusivity protection because if you add a new chemical entity which has not earlier been approved and on that basis you would get another 3 years of protection or you have a new dosage form which gives you another 3 years of protection over and above a 5 year protection, you are actually talking about a situation where protection might not end at all.

Critics say these provisions will extend the monopoly of innovators and delay the launch of generics.

India is the largest provider of generic medicines globally, accounting for 20% of global exports.

(Source: DG Shah, Secretary General, Indian Pharmaceutical Alliance)

James Packard Love
Director, Knowledge Ecology International
If one consequence of the TPP is to make it harder to sell generic versions of drugs, biologic drugs or other drugs then if you are in the business of selling generic and biologic drugs it will shrink the global market by removing the TPP members from the potential recipients. When that happens because of economies of scale it will drive up the cost of production in the non-TPP countries and may be even make it uneconomic to introduce the products.   

Chandini Raina
Professor, Centre for WTO Studies, IIFT
What is happening is that the IPR regime is going to become stiffer and will be enforced more vigorously and is likely to create distortions in the market. How this would happen? For instance they have provisions for border measures that would allow for in transit enforcements. When a product is transiting through a TPP country, even if it is not meant for that country it can be stopped, it can be searched for IPR. So, IPR violations can be evaluated before it is allowed to pass which means that it might lead to situations where consignments would be stopped, there would be delays or there may be returns. So, there is definitely a lot of uncertainty that is sought to be created.

The TPP provides for
•    70 year copyrights
•    disciplines on the use of geographical indications
•    seizure of in-transit goods due to suspected trademark violations
•    US style takedown provisions for to address ISP liability

Pedro Mizukami
Researcher, Centro de Technologia e Sociedade
The copyright term which previously was according to the international standards, say if 50 years after the death of an author now becomes 70 years after the death of an author.

James Packard Love
Director, Knowledge Ecology International
It expands the penalties for infringement of copyright in ways that will create problems for people. There are some areas in copyright where you believe you are acting lawfully but it could be argued that you are not, for example sharing information informally with people or discussing the issue, on a list service something like that or on social media, to the extent that they increased the sanctions and they tighten up the enforcement measures, it has a chilling effect on the way people use information.

Burcu Kilic
Legal Counsel, Global Access to Medicines, Public Citizen
ISPs - Internet Service Providers, everyone will be affected because TPP touches everything.

Claudio Ruiz Gallardo
Executive Director, ONG Derechos Digitales
This makes a lot of more complex situation in terms of policy because now you just cannot say that IPR regulation is something to take care of but also e-commerce chapter, also telecommunications chapter, a lot of other issues which already complicated but they are connected with the internet somehow. So, the internet regulations become more complicated with trade because now it is being seen with a lens of trade.

INVESTOR STATE DISPUTE MECHANISM

ISDS allows private foreign companies to seek international arbitration against host governments to settle claims over alleged violations of the investment provisions.

James Packard Love
Director, Knowledge Ecology International
By giving the investors the right to sue the state when they feel like their profits are threatened, there is a wide range of actions governments might take to protect consumers, protect the public in terms of the safety of products, protection of the environment or by expanding access to knowledge or expanding the access to medicines that could be a result of costly action out of the TPP by some giant company.

Burcu Kilic
Legal Counsel, Global Access to Medicines, Public Citizen
Canada has been sued by a pharmaceutical company Eli Lilly two years ago because Canada invalidated couple of Eli Lilly's patents and then Eli Lilly was so frustrated they tried to go to Supreme Court and challenge the Canadian rule as the way they did in India and the Supreme Court said no, this is none of my business and the patent courts were right, the district court was right, the appeal court was right and then Eli Lilly was like, I will go to ISDS.

Chandini Raina
Professor, Centre for WTO Studies, IIFT
There might not be many gains from TPP as far as we are concerned. We might have a lot to lose if we become part of it. For one we should continue to look within the country, to improve systems and processes and improve our own competitiveness so that we don't lose out as far as trade is concerned. However on the issues of norm settings we should definitely not be induced to modify our laws, to join TPP because that would have serious adverse actions on human health and public interest as far as India is concerned.

 
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