Friday, November 5th, 2010
The Counterfeit Trade Agreement; ACTA, still threatens development.
Shortly after what was publicized as the final round of negotiations in Japan a revised text of ACTA was released. The text subtitles itself as a “Informal Predecisional/Deliberative Draft” and states “This text reflects the outcome of the 11th and final round of the negotiations held in Japan. Some delegations expressed reservation on specific parts of text, which are highlighted in the text by underlines and italic letters.”
This is curious, the final round of negotiations have been held but consensus hasn’t been reached. Apparently the European Union and the United States are still negotiating various issues. What does that mean for the trade representatives of other countries which participated in the secretive negotiations? Will they accept whatever is decided for them?
I’ve reworked my working paper on the impact of ACTA on development that is hosted at PIJIP. Unfortunately the October 2010 text continues to threaten the poorest people in the world.
One slightly hopeful sign is that the text currently claims to exclude patents for the border provisions, although it does so only in a footnote, not the text. In any case since the negotiators have claimed that they are not required to obtain the assent of democratically elected representatives of the people they retain the ability to change to include patents as originally required by the proponents of the treaty. But even if patents are excluded from the customs portion of the treaty the agreement is bad news for access to medicines, as shown by a recent attempt to block access in Europe (the EU has been pushing for border measures to apply to patents). German customs authorities seized a shipment of medicines in transit to the least developed country of Vanuatu . The medicines were the antibiotic, Amoxicillin. The patent for the drug has long expired (even I as an ignorant African was well aware of this) and there are numerous brand names; including (per Wikiepedia):
“Actimoxi, Alphamox, Amocla, AMK, Amoksibos, Amoxiclav Sandoz, Amoxidal, Amoxil, Amoxin, Amoksiklav, Amoxibiotic, Amoxicilina, Apo-Amoxi, Augmentin (with clavulanic acid), Bactox, Betalaktam, Cilamox, Curam, Dedoxil, Dispermox, Duomox, E-Mox, Enhancin, Gimalxina, Geramox, Hiconcil, Isimoxin, Klavox, Lamoxy, Moxatag, Moxilen, Moxypen, Moxyvit, Nobactam, Novamoxin, Ospamox, Panklav (with clavulanic acid), Pamoxicillin, Panamox, Polymox, Samthongcillin, Clamoxyl, Senox, Sinacilin, Trimox, Tolodina, Tormoxin (India), Wymox, Yucla, Zerrsox and Zimox.”
Apparently German customs officials couldn’t tell the difference between the generic name Amoxicillin and one of the brand names “Amoxil”, and so they seized the medicines as suspected counterfeit goods, because they believed them to be face medicines, not because they believed them to be dangerous but because they thought that because the packaging for the goods bore the word Amoxicillin that the goods, which were transiting and not being sold in Germany might infringe a trademark in Germany. Without anti-biotics people can die, but at no stage have the trade negotiators of ACTA acknowledged that they are playing with people’s lives, that there will be a body count as a result of ACTA, and that body count will primarily be the poorest people in the world.
Posted in A2K, A2LM | No Responses »
Tags: ACTA, Actimoxi, Alphamox, AMK, Amocla, amoicillin, Amoksibos, Amoksiklav, Amoxibiotic, Amoxicilina, Amoxiclav Sandoz, Amoxidal, Amoxil, Amoxin, Apo-Amoxi, Bactox, Betalaktam, bodycount, Cilamox, Clamoxyl, collateral damage, Curam, Dedoxil, Dispermox, Duomox, E-Mox, Enhancin, European Trade Commission, Geramox, Gimalxina, Hiconcil, Isimoxin, Klavox, Lamoxy, Moxatag, Moxilen, Moxypen, Moxyvit, Nobactam, Novamoxin, Obama, Ospamox, Pamoxicillin, Panamox, Panklav (with clavulanic acid), Polymox, Samthongcillin, Senox, Sinacilin, Tolodina, Tormoxin, Trimox, Wymox, Yucla, Zerrsox, Zimox
Friday, October 29th, 2010
More than 70 US law professors have written to President Obama
warning him of legal flaws in the ACTA process.
They warn:
“Now that a near-final version of the ACTA text has been released, it is clear that ACTA would usurp congressional authority over intellectual property policy in a number of ways. Some of ACTA’s provisions fail to explicitly incorporate current congressional policy, particularly in the areas of damages and injunctions. Other sections lock in substantive law that may not be well-adapted to the present context, much less the future.And in other areas, the agreement may complicate legislative efforts to solve widely recognized policy dilemmas, including in the area of orphan works, patent reform, secondary copyright liability and the creation of incentives for innovation in areas where the patent system may not be adequate.The agreement is also likely to affect courts’ interpretation of U.S. law.
The use of a sole executive agreement for ACTA appears unconstitutional.”
They also warn that
“The treaty is named the “Anti-Counterfeiting Trade Agreement”. But it has little to do with counterfeiting or controlling the international trade in counterfeit goods. Rather, this agreement would enact much more encompassing changes in the international rules governing trade in a wide variety of knowledge goods – whether they are counterfeit or not – and would establish new intellectual property rules and norms without systematic inquiry into effects of such development on economic and technical innovation in the U.S. or abroad.”
They recommend that the President should halt the process to ensure proper public consultation including:
“Hold a meaningful open, on-the-record public hearing on the draft text, the results of which will be used to determine what proposed changes to the agreement the administration will propose; “
and
“Renounce its position that the agreement is a “sole executive agreement” that can tie Congressional authority to amend intellectual property laws without congressional approval and instead pledge to seek congressional approval of the final text.”
For observers from the developing world this is a hopeful development but it may be ignored.
If its ignored that will be the clearest possible indication to every person concerned with development, not only that a small clique of corporations with defunct business models are willing to see millions die and millions more live in poverty to prop up their business models, but also that those same corporations can write whatever laws they please.
Posted in A2K | No Responses »
Tags: ACTA, Benkler, Boyle, Chon, counterfeit, development, Fisher, Flynn, Geist, Jaszi, Lessig, Obama, Reichman, Sprigman
