India, RCEP and the WIPO Internet Treaties: Time For a Rethink

The recently concluded negotiations of the Regional Comprehensive Economic Partnership (RCEP) in Hyderabad drew considerable flak from civil society on the opaque nature of the negotiations, as well as on several substantive issues.

The RCEP is a proposed mega-regional Free Trade Agreement (FTA) between the ten member states of the Association of Southeast Asian Nations (ASEAN) and six other countries with which ASEAN has free trade agreements. Termed as a viable alternative to the Trans-Pacific Partnership Agreement (TPP), the RCEP is decisive for India to execute its Act East Policy, a strategic initiative to boost its hegemony in Southeast Asia.

The leaked Intellectual Property (IP) chapter of the RCEP indicates a looming threat for India’s hard-won public health safeguards as enshrined in its patent law. As rightly indicated by healthcare activists, inclusion of these provisions in the treaty text should be vehemently opposed by India. However, not every aspect of the leaked IP chapter is perhaps against India’s interest.

A particular case-in-point is that of acceding to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (collectively known as the WIPO Internet Treaties) as a precursor for signing the RCEP. The WIPO Internet Treaties lay down an international framework for protecting unauthorized access to and use of creative works on the internet and other digital networks. They were adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996 to meet the challenges due to advances in information technology, particularly the internet.

India is not a signatory to the WIPO Internet Treaties (the Treaties) even though it had substantially amended its copyright law in 2012 to comply with the Treaties but has to date chosen not to ratify it. Frequent opposition to the Treaties by Indian civil society has been on grounds that they were TRIPS-plus in character (TRIPs, Trade-Related Aspects of Intellectual Property Rights is a WTO agreement, to which India is a party) and therefore ill-suited for a developing country such as India.

This ignores the fact that TRIPS at its core is a “minimum standards” treaty; which was never intended to update any existing international IP instrument. Its primary focus was on IP enforcement (procedural issues) such as injunctive relief and damages. This is primarily due to the intensive lobbying by U.S. pharmaceutical and copyright-based industries which were successful in making a case that their products were rampantly infringed and pirated in developing countries and therefore they were in need of swifter legal remedies in different jurisdictions for safeguarding their products. It for this reason that some important copyright related provisions were left outside the purview of TRIPS, as the primary goal was to enumerate the basic provisions (as a means to concentrate on IP enforcement), leaving the details for specialized legal instruments under the auspices of WIPO.

Therefore, even though the internet was no longer in infancy in 1994 (the year when TRIPS was adopted), it was thought best to leave it outside the agreement’s purview. This is because it would have been impossible to re-open the TRIPS negotiations to address these developments. The same holds true for the rights of broadcasting organizations. Article 14.3 of TRIPS only protects traditional broadcasters against signal piracy even though cable was a prevalent technology at that time. To grapple with these technological developments, WIPO’s member states were also working in parallel to the TRIPS negotiations to create an international copyright instrument for meeting the challenges posed by internet and digital technologies. However, the pace of this particular task undertaken by WIPO was slow for reasons of not interfering with the TRIPS negotiations. However, once the TRIPS Agreement was adopted in 1994, WIPO accelerated its work to address the issue of copyright’s digital agenda.

In a year and a half, record time, the international community adopted the WIPO Internet Treaties in 1996. India amended its copyright law to comply with the Treaties only in 2012. A plausible reason for this delay can be attributed to its low internet penetration rate which was merely 1.5 percent  in 1996, when the Treaties came into being. However, as of 2016, 34.8 percent of India’s population has access to digital networks. Therefore, technological backwardness as a reason for not acceding to the Treaties became irrelevant.

This historical context is important for India to make an informed decision whether to accede to the Treaties or not in light of the recently concluded RCEP negotiations. An independent study commissioned by the WIPO on the state of the audiovisual industry in selected African countries concluded in the specific context of Kenya that acceding to the Treaties had the potential to boost its domestic audiovisual sector industry. This may rebut the emotive pleas of civil society on the Treaties being ill-suited for developing countries.

Nevertheless, India’s position in the international copyright community is very different from other developing countries, a fact conceded by none other than Jagdish Sagar, India’s chief negotiator for the copyright provisions of the TRIPS Agreement. In a leading memoir on the negotiating history of the TRIPS agreement, without mincing any words on India’s incompatible position on international copyright issues, Sagar lucidly stated, “Whatever the politics of our relationship with other developing countries in regard to other and broader issues, we did not then, and certainly do not now, have common interests with many of them in the sphere of copyright.” Therefore, even assuming that there is some merit in the argument that the Treaties are ill-suited for developing countries, that argument holds little ground for India.

As far as back in 2008, the Copyright Law Division of WIPO had persuaded India to ratify the Treaties for its own benefit. However, no holistic empirical study has been taken to date to assess the potential benefits that India could gain by acceding to the Treaties. At a time when there is mounting international pressure upon India to accede to the Treaties, India’s reaction should be spurred more by rationality than emotions. Therefore, it is imperative for the Indian policymakers to urgently undertake an objective assessment of the repercussions of acceding to the Treaties, keeping in mind the delicate balance between the rights of copyright owners and users.