ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Break the 'Special 301' Big Stick

India should stand up to US bullying on intellectual property.

The United States (US) Chamber of Commerce, the Pharmaceutical Research and Manufacturers of America (PhRMA) and the US’ National Association of Manufacturers have all made strong pleas to the US Trade Representative (USTR) to designate India as “Priority Foreign Country” (PFC) in its 2014 Special 301 Report which is due for release on 30 April. They have complained that India has denied “adequate and effective protection of intellectual property rights” (IPRs) and accused it of back-pedalling “fair and equitable access to US persons who rely on intellectual property”. They claim that the grounds on which India has issued compulsory licences and the standards for patentable subject matter found in Section 3(d) of the Indian Patent Act (IPA) have violated its obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organisation (WTO). Unilateral action under Special 301 was one of the big sticks that the US began wielding in the course of the Uruguay Round (1986-93) of the General Agreement on Tariffs and Trade. It was an effective imperialist weapon then, but what of it now, almost two decades since the formation of the WTO in 1995?

Under the “administrative adjudications” of Special 301 the USTR merely establishes that the countries it blacklists (the term itself has racial connotations) are in violation of the US government’s interpretations of the TRIPS agreement. These designations range from being PFC to being “watch listed” and “priority watch listed”. India has been on the Special 301 priority watch list all along, ever since the first Special 301 Report in 1989, except when it was upgraded to PFC for three years. The PFC blacklisting ­entails loss of benefits under the US’ Generalised Scheme of Preferences. During the Uruguay Round negotiations, India was deemed to be among the leading countries opposing the TRIPS agreement in the making, alongside Brazil, Argentina and Egypt, but New Delhi soon fell in line, perhaps even before 1992 when the mere threat of being designated as PFC seems to have worked.

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