ACTA: more than just an illegal download ban

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A new wave of protests in defence of internet freedom is on its way. On Saturday, demonstrators will target the Anti-Counterfeit Trade Agreement or ACTA for short. The agreement is aimed at setting a worldwide standard in the protection of intellectual property rights, covering everything from music to medicine. In Europe, doubts are beginning to grow.

ACTA was initially designed to halt the dangerous trade in counterfeit medicines. Following lengthy negotiations, held largely behind closed doors, the agreement has now been submitted to the United States, Australia and the European Union for approval.
Under pressure from the United States, the Anti-Counterfeit Trade Agreement has been expanded to combat online piracy. The main focus of the protests is the threat to an open internet, the ban on free downloading and the prospect of providers, search engines and users being vulnerable to prosecution.
But the consequences go much further, warn aid organisations such as the IDA Foundation. IDA campaigns for affordable, good quality medicines for developing countries. Managing Director Edwin de Voogd believes ACTA serves only the interests of the pharmaceutical industry and violates previous agreements.
“This agreement has the potential to block the legal trade in medicines from a producer in India or China to a poor country. All to defend the interests of the pharmaceutical industry: its patent rights and the monopoly they create.”
The World Health Organisation previously agreed conditions under which countries (mainly India and China) are permitted to produce and export generic medicines to developing countries, even if the patent has not yet expired. These include products such as malaria tablets and AIDS medicines. Pharmaceutical companies have given this deal their blessing.
Dubious pills
In addition to this legal trade, there is a much shadier circuit. Developing countries are flooded with dubious pills, powders and potions which do nothing to improve public health. In the West, this problem tends to be limited to the online sale of fake Viagra made in China. Paul Wouters of Nefarma, a Dutch association geared towards innovation in medicine, insists we need ACTA to tackle such abuses. 
“If we’re not careful, counterfeit medicines could also end up in the regular circuit. We are not talking about good quality copies that happen to come from a different factory. Many of these products are bad and even contain ingredients that can be fatal to patients. If you want to monitor the chain effectively, it’s important to protect intellectual property.”
Black market
Wouters acknowledges that pharmaceuticals are a billion-dollar industry and that ACTA is needed to safeguard that revenue. It costs millions to develop new medicines and the industry recoups its outlay through patents. Things go wrong when manufacturers and recipient countries sell medicine from countries such as India in the West.
“It’s sad but true. In developing countries too, there are people who unscrupulously pocket medicines intended to help people so that they can trade in them. It’s an unfortunate reality that we cannot ignore.”
Wouters is calling for aid organisations to redouble their efforts. “They have to ensure good infrastructure that prevents these medicines being re-routed to wealthy countries.”
Strict customs
Eighty percent of the cheap HIV/AIDS medicines that Médecins Sans Frontières gives to patients in Africa come from India. But the patent-protecting measures contained in ACTA jeopardise this production and trade, says Aziz Rehman of MSF.
“ACTA provides additional rules under which the import of those medicines can be stopped. The customs authorities in different ACTA countries can stop drugs on the basis of suspicion. They can say that drugs being imported from India apparently violate certain patent rights or trademark rights. On the basis of those allegations they can stop and seize those drugs in their country.”
Rehman says it can be weeks before a bona fide consignment is released. In some cases, the authorities destroy a medicine without even waiting for the results of the investigation. A handful of Indian manufacturers are already thought to be considering shutting down their operations.
MSF is convinced that, in practice, ACTA removes the possibility of producing cheap and effective medicines for poor countries. Ironically, this will drive up the price of medicines. And higher prices encourage counterfeit production.
The wording of the agreement is the result of years of secret negotiations between Japan, the US and the European Union. Talks even took place beyond the confines of the World Trade Organisation. Civil society organisations were shunned, while major companies were able to have their say. Developing countries were also kept at arm’s length. But as ACTA emerges into the open, this closed circuit approach may yet backfire.