Trade News - April 2012

The Anti Counterfeiting Trade Agreement - commonly referred to by its acronym ACTA - has arrived at the European Parliament and was discussed in the trade committee on the 25th April. The European Commission concluded the ACTA negotiations with Australia, Canada, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States in 2011. The agreed text has now been sent to the Parliament for approval. The purpose of the agreement is to establish international standards on intellectual property rights enforcement throughout the participating countries.

Africa had no place at the negotiating table and the agreement is directly applicable only to those countries signing it. At first glance, therefore, it might seem that ACTA will not affect Africa. The reality is unfortunately different and if ACTA becomes a reality it will have far-reaching consequences for Africa as well.

ACTA has attracted wide attention in the Western media, because fears were expressed that it may pose a threat to the freedom of internet and the freedom of expression. Without wanting to belittle these concerns, which have their relevance in the signatory countries, the greatest risk ACTA poses to Africa is regarding access to generic medicines[1].

There are concerns that the enforcement measures foreseen in ACTA will lead to customs authorities blocking the transport of generic medicines to Africa, the reason being a trademark[2] dispute between the producers of the patented medicine and those of the generic medicine. As trademarks of medicines are often based on the ingredients, the name of the generic medicine is often similar to that of the patented medicine, as both have the same ingredients.

Already in 2008 and 2009 Dutch customs authorities wrongly seized generic drugs coming from India and destined for Africa and Latin America on the grounds of a patent dispute. If ACTA comes into force the likelihood of such wrongful seizure will increase.

The increase in legal cases could also escalate costs for producers of generic medicines, leading to an increase in the costs of the generic medicines themselves. There are also concerns about another paragraph in ACTA which is worded in such a way that it could even lead to non-governmental organisations (NGOs) and other groups having legal problems for having distributed contested generic medicines to patients. Currently, ACTA does not contain measures to really fight fake medicines effectively.

The European Commission has always tried to allay fears regarding ACTA saying that the concerns were unjustified - but unconvincingly.

During the debate in the trade committee of the European Parliament, the European Peoples Party (EPP), the largest group in the European Parliament, suggested ACTA be sent back to the European Commission, asking it to renegotiate those aspects which are unclear or may have unintended consequences. All the other major groups at the European Parliament - Socialists and Democrats (S&D), Liberals (ALDE), Greens and Communists - went a step further and supported the idea of rejecting the treaty outright, without seeking any renegotiation. This is therefore likely to be the majority view when the European Parliament votes on ACTA. The trade committee of the European Parliament is scheduled to vote on ACTA in June and the plenary vote should take place after the summer break.

Thomas Lazzeri