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TWN Info Service on Trade and WTO Issues (Dec08/12)
9 December 2008
Third World Network

Below is a news report on latest developments taking place in the World Customs Organisation in relation to IP enforcement standard setting.

The activities on IP at the WCO have become controversial and the subject of scrutiny by some developing countries, IGOs and NGOs  since it embarked on broadening the IP enforcement powers of the customs authorities beyond those required by the TRIPS Agreement through the SECURE provisional standards. There are also issues of transparency and accountability with regard to the WG that have been raised repeatedly by developing countries and other groups.

The news report was first published in SUNS and is reproduced here with permission.

Sangeeta Shashikant
Third World Network.
email: ssangeeta@myjaring.net

Trade: WCO secretariat for disbanding SECURE Working Group
Published in SUNS #6602 dated 2 December 2008

Geneva, 1 Dec (Sangeeta Shashikant) -- The Secretariat of the World Customs  Organisation has proposed disbanding the WCO's SECURE Working Group (WG) and setting aside its efforts to develop the Provisional SECURE Standards.

In its stead, the WCO secretariat, in a paper (SP0284E1a) dated 26 November 2008, prepared for the upcoming meeting of the Policy Commission, suggests the setting up of another body to develop best practice IPR guidelines for Customs administrations.

This proposal is a change of tactic by the WCO Secretariat, to move away from setting standards on IP enforcement matters and instead to focus on developing tools for capacity building of Customs administrations on IP enforcement.

The setting of standards in SECURE WG has become controversial and the subject of scrutiny by developing countries and NGOs since the WG, through the SECURE provisional standards, embarked on broadening the IP enforcement powers of the customs authorities - beyond those required by the TRIPS Agreement. There are also issues of transparency and accountability with regard to the WG that have been raised repeatedly by developing countries.

The SECURE Working Group was established by the WCO in June 2007, and hasmet four times - in October 2007, February, April and October 2008.

The Secretariat's paper titled "Combating of Counterfeiting and Piracy: WCO IPR activities, A Way Forward" is intended to guide the upcoming Policy Commission meeting in Argentina (9-11 December), on that agenda item.

The Secretariat's paper invites the Policy commission to note that the progress by the SECURE Working Group has been limited and asks the Policy Commission to consider making recommendations to the Council that (1) set aside efforts to further develop the Provisional SECURE Standards, by considering the possible cancellation of the February and April 2009 SECURE Working Group Meetings and (2) invite the Council, at its June 2009 Sessions, to instruct an appropriate body to develop best practice IPR guidelines for Customs administrations. That body could possibly be a Working Group under the Permanent Technical Committee (PTC) that reports to the Council through the PTC and the Policy Commission, the paper adds.

The Council is the highest body in WCO and meets once a year. It is assisted by the Policy Commission (24 Members) and some of the current members include France, Japan, Nigeria, Norway, Russian Federation, Rwanda, Saudi Arabia, Slovenia, United Kingdom, United States, Canada, China, Germany, Malaysia, Mexico, Spain and Thailand.

According to a diplomatic source, the setting up of a separate Working Group on IP and terminating the SECURE Working Group was first proposed by the US at the 4th Session of the WG, which met in Brussels from 30-31 October. This proposal of the US appears to now have been picked up by the WCO Secretariat.

Diplomatic sources also say that the Secretariat's proposal is "totally inconsistent" with what had been agreed at the 4th session of SECURE WG, i. e that the Secretariat would present a factual report to the Policy Commission, and that the WG would continue discussions when it meets again in February next year. The WG ended its meeting without any agreement on the way forward (See SUNS #6588 Wednesday 12 November 2008).

During the WG, the US wanted to refer the matter of "Way Forward" to the Policy Commission meeting in December but there was concern among some developing countries that given the domination of the Commission by developed countries, any guidance that emerges from the Commission is likely to be biased against the interests of developing countries.

Sources among developing country delegations involved in the WCO's SECURE WG work, speculated that the Secretariat is pushing for best practise IPR guidelines in the hope that it will not face resistance as has been seen recently in the SECURE WG and on the Provisional SECURE standards.

The SECURE WG has become controversial and the subject of scrutiny by developing countries since it has embarked on broadening the IP enforcement powers of the customs authorities to beyond what is required by the TRIPS Agreement through the SECURE provisional standards. There are also issues of transparency and accountability that have been raised with regard to the WG by developing countries (see SUNS #6535 dated 11 August 2008).

At the 4th session of the WG, proposals were made by several developing countries led by Brazil and Argentina's proposals to limit the purpose and scope of the WG to parameters of the TRIPS Agreement, to increase transparency in WCO's activities, ensure that the WG is member-driven and not secretariat-driven, and to ensure better participation of public interest NGOs in the WG (See SUNS #6588 Wednesday 12 November 2008, also available at http://www.twnside.org.sg/ipr.archives.htm)

Over 50 NGOs also sent an open letter to Mr. Kunio Mikuriya, Secretary General-elect of the WCO, before the 4th session of the WG meeting, raising many similar concerns about the WG's activities (See SUNS #6588 Wednesday 12 November 2008). Also available at http://www.twnside.org.sg/ipr.archives.htm

However, the 4th session of the WG ended without any agreement on future work as well as on the Terms of Reference of the WG and discussions were expected to continue at the next meeting, in February 2009.

In the paper (SP0284E1a), the Secretariat has argued in support of its proposal to the Policy Commission by stating that "The WCO and its Members have been actively engaged in IPR enforcement activities for over 25 years" and that the SECURE Working Group was established in 2007 in "an effort to rationalize the then existing WCO groups dealing with IPR issues".

It said that after 4 sessions, the SECURE working group has been unable to reach consensus on the SECURE standards because of the "issue of the scope of the proposed standards", adding that there was also "no consensus" on the Terms of Reference of the WG.

The secretariat paper further states that a "sizeable number of WCO Member countries" expressed concern that the SECURE WG "could be used as a vehicle to works towards a "TRIPS plus" regime, fearing the possible repercussions on their future bilateral and multilateral negotiations". At the same time, it added that "an equally large number of other WCO Member countries are pushing for the voluntary further development and enhancement of Customs prerogatives for IPR protection under national law". It also added that some WCO members "were questioning their future participation in the WG due to the lack of progress and private sector participation in the SECURE WG has been declining".

The paper anticipates that under the "current circumstances, it seems unlikely that the SECURE Working Group will reach a consensus".

It further states that "many WCO members are requesting IPR training and capacity building" and there are "increasing requests for assistance with national and regional IPR enforcement operations" and that "it is possible that a new IPR initiative that focuses on the development of technical Customs issues directly linked to an IPR capacity building programme might succeed".

It also states that "The WCO should use its existing IPR enforcement tools and continue to upgrade them based on best practice and develop IPR enforcement tools and continue to upgrade them based on best practice, and develop IPR training material for WCO Members and ensure that its capacity building programme reflects the role that individual Customs administrations undertake at the border in relation to IPR issues". It further states that "The WCO should assist national and regional IPR enforcement operations on an "as requested" basis and in accordance with other operational priorities".

In conclusion, the Secretariat's paper states "In order to ease the  transition to a new WCO IPR focus, the Policy Commission is invited to note that progress by the SECURE Working Group has been limited".

It adds that the Policy Commission "may also wish to make recommendations along the following lines to the Council as there is clearly a need for Customs administrations to have best practise IPR guidelines".

The recommendations are: (1) "To set aside efforts to further develop the Provisional SECURE Standards, by considering the possible cancellation of the February and April 2009 SECURE Working Group Meetings", (2) "To invite the Council, at its June 2009 Sessions, to instruct an appropriate body to develop best practice IPR guidelines for Customs administrations. That body could possibly be a Working Group under the Permanent Technical Committee (PTC) that reports to the Council through the PTC and the Policy Commission.

Concerns over scope of the best practise IPR guidelines and the process through which the guidelines are developed (for example, the stakeholders involved in the process) are likely to continue to be sticking points even if another body is set up.

[The WCO secretariat's efforts to move forward with speed an issue in which the US is interested, is in sharp contrast with the way the World Customs Organisation and its secretariat have been making progress on an issue referred to them by the World Trade Organisation in 1995.

[Under the Marrakesh Treaty and its Rules of Origin Agreement, the WTO was mandated to set up a work programme, soon after the WTO came into being (1995), for harmonisation of the non-preferential rules of origin, and complete it in three years (that is by 1998). Part of this technical work was entrusted to the WCO, which has been making periodical reports. The work is deadlocked on some of the remedial measures (including ROR and the Anti-dumping treaty).

[While the WCO referred what it saw as political, rather than technical issues of harmonization to a decision by the WTO Committee on ROR and the General Council, and in effect washed its hands off in finding solutions in an important area of trade of concern to developing countries, it is now pushing hard to find solutions in areas indirectly related to trade on issues of concern to the United States and other dominant developed countries.-- SUNS] + 

 


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