Why the secrecy?

Indias FTA with EU

Sale of products that compete with EU’s GI-protected ones will be affected. Indian dairy sector has reasons to worry.

The Government of India has been negotiating several free trade agreements (FTAs) and bilateral investment treaties (BITs) in the last two decades. One such controversial FTA still on the table is with the European Union (EU).

This EU-India FTA is on top of the agenda of the EU-India Summit that will take place today (February 10, 2012) in New Delhi. Both the said summit and the economic cooperation proposed thereunder has full political support from both sides. India will be represented by prime minister  Manmohan Singh. But the FTA as a whole, being secretly negotiated by both sides, has no social backing.

There are also some very specific concerns from civil society regarding the intellectual property (IP) provisions of such an FTA. While the impact of IP in the health sector has got much publicity, the agriculture-related IP issues need to be adequately amplified. The link of these IP provisions with the everyday lives and livelihoods of local farmers, livestock keepers and small dairies has neither been made clear to them by GoI, nor have they been consulted about the FTA texts. Secrecy shrouds these negotiations.

In defence of the FTA, trade negotiators claim that Indian agricultural products will gain from market access to the 27 European countries that are members of EU. They also attempt to allay fears about IP standards being ratcheted up. They point to the fact  that EU has reportedly dropped insistence on a higher level of IP protection (that would benefit European seed companies in India) through plant variety protection (PVP) over and above what India’s PVP law currently provides for new crop varieties. By that the proposed FTA is hardly rendered harmless on the IP front and otherwise. As on another front – geographical indications (GI), EU is and will remain aggressive. This can create as much problem for Indian agricultural products, keeping them from that elusive share in the world markets.

GIs are a kind of IPR historically from Europe. The original idea behind GIs is to give exclusive rights to the use of a name for a product (Basmati rice, Alphonso mangoes, Darjeeling tea) if that origin gives the item its special characteristics -- whether because of the soil, a traditional production method or other. For the EU, GIs are an important tool to secure market control over agricultural products especially in competition with the US, which relies on trade marks.

At the World Trade Organisation (WTO) too GIs were included on the insistence of the European trade negotiators. There a narrow system of GIs is allowed for wines and spirits. A pending issue at the WTO TRIPS Council is whether to expand the level of protection — currently given to wines and spirits — to other products. EU has been for years trying to extend this system to all products (cheese, meats, etc.) but the US won't allow it. So EU is now pushing GIs in its FTAs.

Clear precedent

In the EU-South Korea FTA that provisionally came into force in July last year, there too are IP provisions on GIs. The confederation of the food and drink industries of the European Union (CIAA), welcoming the Korea with FTA (that grants greater protection to over 160 EU geographical indications), is jubilant that it sets a clear precedent for future FTAs to be concluded by EU. CIAA is particularly concerned about the exports of value-added agricultural products from the ‘new and emerging economies’ like India.

After becoming a member of the WTO in 1995, India too passed legislation on GIs - the Geographical Indications of Goods (Registration and Protection) Act 1999 and the Geographical Indications of Goods (Registration and Protection) Rules 2002. Thus far GoI has been encouraging groups and/or associations of its own small producers to register their products for GI protection. For instance, local variety of eggplant as ‘Udupi Mattu Gulla Brinjal’ is registered in the name of Mattu Gulla Growers’ Union.

From the last financial year (April 2010-March 2011), for the first time under Indian law five foreign products were given GI protection. Those from Europe include two from France – Champagne and Cognac, one from Italy – Prosciutto de Parma; and one from the United Kingdom – Scotch whisky. So the process of granting GI protection is underway, irrespective of the delay in finalising the FTA. Europe cheeses are yet to get GI protection under Indian law. When that happens, India’s own Amul will not be able to sell cheeses under the titles of Gouda, Emmentel or Mozarella. As those names would sound like and be similar to the European GIs. The European Commission wants the name ‘Gouda Holland’ to be protected.

The EU wanted that GIs originating from its territories be granted automatic recognition and protection through the FTA. In response the Indian side reportedly proposed that products that have been registered and protected as GIs under EU’s Council Regulation (EC) NO 510/2006 on the protection of GIs and designations of origin for agricultural products and foodstuffs, will be registered under India’s GI law only after the application is examined and processed as per the Indian Act and the Rules.

The sale of any products that compete with EU’s GI-protected ones will be adversely affected. The Indian dairy sector and with it small producers have reason to worry. Besides India, Amul also sells it products in overseas markets such as  in Mauritius, UAE, USA, Oman, Bangladesh, Australia, China, Singapore, Hong Kong and a few South African countries. India’s Amul butter girl may not be saying ‘cheese’ for long!