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Shape of IPRs and Agriculture post the WTO Nairobi Ministerial
https://cis-india.org/a2k/blogs/shape-of-ip-and-agriculture-post-the-wto-nairobi-ministerial
<b>CIS is running a series of meetups focused on intellectual property to bring folks interested in IP law to discuss developments in access to knowledge, climate change, health, trade, etc.
At the first meet-up in February, Prof. Biswajit Dhar delivered a short talk on intellectual property rights and agriculture in a post-Nairobi Ministerial world. This post is a summary of his talk.</b>
<h2 align="JUSTIFY"><strong>Extension
of abeyance of Non- violation complaints</strong></h2>
<p align="JUSTIFY">At
the Nairobi Ministerial, members agreed to extend the
non-applicability of non-violation complaints for two years. There
are two kinds of disputes which
can be initiated at the WTO -<em>first</em>,
when the partner country does not fulfill a commitment and such a
non-implementation is injures the member country, leading to either
nullification or impairment. <em>Second</em>,
a country may deem itself to be injured even though the partner
country has fulfilled its obligations. For instance, despite India's
compulsory license grants complying with TRIPS, the US initiated a
dispute against India.</p>
<h2 align="JUSTIFY"><strong>Need
for greater negotiating muscle and coalition building at multilateral
fora</strong></h2>
<p align="JUSTIFY">The
Convention on Biological Diversity(CBD) came into force in 1993,
followed by the TRIPS agreement in 1995. India became a member of the
CBD and gained sovereign rights over its diversity. Before CBD,
inventions related to diversity were protected by private rights. The
turmeric case, and increasing bio-piracy led to introduction of
requirement of disclosing the source. India proposed that along with
other details, the source
of the biological material should be mandatorily disclosed, including
any associated traditional knowledge. Subsequent benefits arising out
of use of biological resources had to be shared with the country- it
was important to acknowledge that the community had nurtured these
resources. The coalition in favour of the disclosure requirement was
an interesting one because it was between India, Brazil, sometimes
South Africa, Andean countries and Pakistan. This was pushed for in
WIPO where the need for a treaty was advocated. The
consensus around the disclosure requirement was an example of
developing countries forming coalitions to make their interests more
pronounced.</p>
<p align="JUSTIFY">Further,
greater the evidence, better is a country’s case in negotiations.
After the Turmeric case, India realised that it needs written and not
oral evidence to produce in the US Courts. That realisation led to
the creation of a documentation project for traditional
knowledge(Traditional Knowledge Library Database). Since the last
decade, India has been sharing this database with patent officers.
Since 2009, TKDL has also contested patents in various jurisdictions.
At the EPO, India contested 94 patents, while in Canada the number is
25. Although there has been some success in US but major success has
been in EU only. However, there is a shortage of manpower to work on
the challenges, and as a consequence the efforts have largely failed
to push the process of the law. Mounting these challenges also proves
to be be exorbitantly expensive. There are indeed very few countries
which have effectively done this without succumbing to international
political pressure- India is one of them. It is possible to use this
democratic space wisely to push back the dominant powers.</p>
<p align="JUSTIFY">Trade
is imminent and there will be trade. However, if we do not deal with
trade effectively, it will spell doom for us. The
Transpacific Partnership(TPP) and Nairobi ministerial should serve as
a warning for us. The
prevalent fear has been that countries in favour of TPP will be
multilateralised.
India's steps indicate a roll back of its role at the WTO. Once it
moves out of the WTO framework and the Doha agenda fails, TPP
signatories will begin to exert pressure on WTO. Granted
that there is very little window to move forward, nevertheless, India
should try using its influence to fight at the WTO with all resources
available. WTO has limitations but such organizations are the only
bet we have against multilateral organizations.
Currently, India is allowing these organizations to be shaped in an
undesirable manner. We<strong>
</strong>have
not used the WTO truly well enough, and neither have we been able to
influence ongoing negotiations. There is, therefore, a need to
rethink our strategy. It is time to step up and engage with
lawmakers instead of only engaging with bureaucrats.</p>
<p align="JUSTIFY">Negotiating
teams at these multilateral fora are of utmost importance, because of
their unique position to influence the law making process at the
top-down level. In the long term, they are also a cost saving measure
(compared to mounting opposition to patents, etc). Unfortunately,
India has kept silent as it watches US and its allies taking over
ASEAN. Through TPP, rules are changing and the US-led alliance is
taking over countries beyond Pacific Rim, by moving into ASEAN. India
is in an isolated position right now and needs a group of its own to
collaborate and work as a formidable force against US.</p>
<p align="JUSTIFY">India
should have seized the opportunity to group with African nations in
the India-Africa forum to consolidate its position. Similarly, Latin
countries may also be pursued. These regions are important since
India's support at the WTO has been on a sharp decline.</p>
<h2 align="JUSTIFY"><strong>Agriculture
</strong></h2>
<p align="JUSTIFY">India
is also under pressure to remove agricultural subsidies. The subsidy
regime was crafted by the EU and US to enable them to exempt their
subsidies in an exempt list (green box). Further, US cleverly
protected its own export credits so that its own subsidies became
exempt. In this manner, even subsidies pertaining to export
competition are not totally eliminated. However, other countries like
India have raised an issue that in these countries, export subsidy is
but one part of total subsidies. The latter has come down and this is
problematic because countries like India simply must have potential
to safeguard against hunger. The public distribution system is
essential for this.
India has a system of Minimum Support Price(MSP) and input subsidy.
On the other hand, US provides direct income support, arguing that
markets should be as close to their pristine form as possible. And
input subsidy and MSP do not reconcile with this. According to them,
income transfers are better because that does not manipulate prices.</p>
<p align="JUSTIFY">In
US and EU, the irony is that, they have farm policies. US has had a
farm bill every 4 years since 1933, and EU has a common agricultural
policy. India does not have any such policy. The US and EU inform
their producers their about expected subsidies for the next 4 years,
enabling the producers to plan in advance. In this case, income
transfer can work. Therefore, the farmers can take higher risks and
can manipulate prices. Their farm rate price is well below the
economic cost and international price since they have protection
because of the income transfer. The international price is supposed
to be efficient (in almost 3 decades, international prices have been
same). Since their prices are below international prices, they can
dump in the international market. On the other hand, nobody else can
enter the US market. Ironically, this income support, which affects
international trade so unfairly, is kept out of the scope of WTO
deliberations - no questions asked. Further, while the US Farm Bill
expenditure has gone up, in contrast, India has a limit on subsidy.
Food subsidy is counted in the 10% limit prescribed by the WTO.</p>
<p align="JUSTIFY">The
situation is can be summarised as, thus: US's activities eventually
escape the WTO, while Indian programmes fall within the scope, more
than the usual. Before the Food Security Act, the below poverty line
population were the only beneficiaries. And now, the Act benefits
two-thirds of the population. As a result, quantum of subsidized food
has gone up. If the government decides to give income transfers
(instead of subsidies), in order for it to be successful, the tiller
has to be the owner of the land, which is problematic in India.
Although people want to follow direct benefit transfer for
agriculture as well, the question remains that how many workers will
<em>actually</em>
benefit from it.</p>
<p align="JUSTIFY">It
is evident that agriculture is suffering- Mint recently reported on
how India is becoming an agro importer. Sugar output has suffered.
India might import sugar next year along with pulses, wheat.
Productivity is going down. This is will make way for support for
genetically modified crops-- which is again what the US wants. If
the WTO gets populated by TPP signatories, India cannot continue with
providing subsidies because TPP
eliminates agricultural subsidies. The only relevant factors
are market entry and tariff. This could be agriculture’s deathbed.</p>
<p align="JUSTIFY">Negotiations
on agricultural issues have not been effective because of divisions
within it. Fragmentations have caused a lack of unity - even a bare
common minimum position does not exist. Further, US and allies have
used diversionary tactics such as repeatedly asking for evidence, not
bringing anything concrete to the table, etc. When the process is
frustrated frequently, activist movements also die down.</p>
<p align="JUSTIFY">Loss
of bargaining power has led to fatigue within various activist groups
in the country. On the other hand, corporations continue prospering.
India had put up a strong fight for TRIPS flexibilities, but today
elements like TPP are destroying balanced regimes across the world.</p>
<p align="JUSTIFY"><em>Thanks to our intern Aniruddha Majumdar for his assistance on this post.</em></p>
<p align="JUSTIFY"> </p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/shape-of-ip-and-agriculture-post-the-wto-nairobi-ministerial'>https://cis-india.org/a2k/blogs/shape-of-ip-and-agriculture-post-the-wto-nairobi-ministerial</a>
</p>
No publishersinhaIP MeetupIntellectual Property RightsAccess to KnowledgeWTO2016-05-05T07:11:16ZBlog Entry