TWN Info Service on Intellectual Property Issues (Nov08/05)
17 Nov 2008
Third World Network
 

Below is a news story on the last meeting of the World Customs Organisation (WCO) that took place on 30-31st October 2008 in Brussels.

The activities of the WCO (and particularly the SECURE Working Group) 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.

It was first published in SUNS and is reproduced here with permission.

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

Customs Organisation meeting ends in some disarray
SUNS #6588 Wednesday 12 November 2008

Geneva, 9 Nov (Sangeeta Shashikant) -- An attempt by developed countries and the secretariat of the World Customs Organisation (WCO) to expand the role of customs authorities worldwide in enforcing intellectual property rights appears to be in disarray after a recent WCO meeting ended without agreement on how the work should proceed.

The developed countries have been trying to introduce uniform standards for customs authorities to enforce intellectual property rules in the WCO, through a working group known as SECURE, or "Provisional Standards Employed by Customs for Uniform Rights Enforcement".

In the past many months, several developing countries have been opposed to the way in which the WCO Secretariat was seen to be manipulating the negotiating and decision-making process.

A meeting of the SECURE Working Group held in Brussels on 30-31 October saw several developing countries, led by Brazil and Argentina, challenging the terms of reference of the group, and putting forward several proposals to reform the negotiating procedures. These proposals were not acceptable to developed countries and the meeting ended without agreement on the agenda items.

Among the items on the draft agenda were the draft Terms of Reference (TOR) for the Secure Working Group, Brazil and Argentina's paper on "Ensuring transparency and a legitimate, member-driven process in the SECURE Working Group", which was featured on the draft agenda as "Discussion of process document", a revised action plan and the review and further development of the working draft of "Provisional Standards Employed by Customs for Uniform Rights Enforcement" (SECURE provisional standards).

The Working Group (WG) could not agree on any of the issues discussed, according to a diplomatic source. Brazil and Argentina, supported by other developing countries, proposed to amend the draft TOR prepared by the WCO Secretariat. This and other proposals by Brazil and Argentina could not be accepted by the developed countries.

A Brussels-based delegate that participated in the meeting informed SUNS that the US wanted to refer the matter to the Policy Commission of the WCO that would meet in December. The Policy Commission comprises 24 member states and is dominated by developed countries. Thus, any guidance that emerges from the Commission is likely to be biased in favour of the developed countries, the delegate added.

The US suggestion was not accepted by many developing countries that instead wanted the Working Group to present a factual report to the Policy Commission, and that the Group continue discussions when it meets again in February next year.

According to the delegate, the US also expressed the possibility of discontinuing SECURE and creating a new group within the WCO called the "IPR Working Group", which several developing countries could not accept.

The 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

(see SUNS #6535 dated 11 August 2008).

Brazil and Argentina's proposals aimed to limit the purpose and scope of the WG to the TRIPS Agreement, to increase transparency in WCO's activities, ensure that the WG is member-driven and not secretariat-driven, and ensure better participation of public interest NGOs in the WG.

Over fifty NGOs also sent an open letter to Mr. Kunio Mikuriya, Secretary General-elect of the WCO, before the WG meeting, raising many concerns on the WG's activities. (See article below).

According to sources, reference was made to the open letter during the meeting in response to a question raised by Russia as to which other entities would be interested in the activities of the WG. However, the Secretariat did not distribute the open letter to members participating in the WG, although this was requested by the NGOs.

One of the issues discussed at the WG was the draft TOR of the WG prepared by the WCO Secretariat. Although the Group has met three times (prior to the October meeting), and started consideration of "SECURE provisional standards", the TOR has never been considered, thus leaving the issue of the Group's mandate unresolved.

Brazil, in a note verbale prior to the meeting, insisted that the "Draft Terms of Reference" be an item on the agenda of the meeting. Brazil and Argentina, supported by several other developing countries, also submitted for discussion several amendments to the proposed TOR, all of which were rejected by developed countries.

The proposals are aimed at limiting the purpose and scope of SECURE, to inject transparency in WCO activities, ensuring that the WG is member-driven and enhancing the participation of public interest NGOs in the WG.

On the purpose and scope of the WG, the Secretariat's draft TOR states that it is to advise the various WCO bodies and the Secretary General "on the full range of issues concerning the SECURE provisional standards". It also adds that "Required tasks will be carried out in periodic meetings convened by the Secretariat and presided over by the Co-Chairpersons designated by the Group".

The Brazil and Argentina proposal sought to limit the purpose and scope of the WG to only "customs-related activities in the areas of trademark counterfeiting and copyright piracy" (excluding patents), adding further that any tasks carried out in periodic meetings by the Secretariat should be "in consultation with the Member States".

They also proposed that the WG "will focus its activities on the exchange of experiences and technical assistance in the area of trademark counterfeiting and copyright piracy (as understood by the WTO TRIPS Agreement)" and "shall not extend to other violations of intellectual property rights". It also adds that "Result of the activities of the Group shall not imply provisions beyond the ones set out in the WTO TRIPS Agreement".

The proposal further states that "The result of the SECURE Working Group shall not be construed so as to undermine the prerogatives WCO members enjoy to take full advantage of the flexibilities provided for in relevant international agreements, in particular by the TRIPS Agreement, and the WIPO Development Agenda."

The Secretariat's draft TOR states the key deliverables of the WG as follows: (a) regularly examine the global standards aimed at combating IPR infringements and if necessary, prepare new legislative, administrative or operational recommendations to assist Members to define and implement appropriate and upgradeable measures to combat counterfeiting and piracy;

(b) review and further develop the WCO model IPR legislation, the WCO Guidelines on risk management, the new initiative relating to the risk analysis handbook, and the Diagnostic Study on IPR and the e-learning module; ( c) analyse new phenomena occurring at regional and international levels which could lead to the amendment of various WCO tools; (d) institute awareness-raising initiatives and develop a capacity-building programme for Members requesting such assistance.

Brazil and Argentina proposed reducing the key deliverables of the WG to:

(a) be a forum for the exchange of national customs experiences on trademark counterfeiting and piracy combat; (b) review the WCO Guidelines on risk management, the new initiative relating to the risk analysis handbook, and the Diagnostic Study on IPR and the e-learning module; ( c) analyze new phenomena occurring at regional and international levels; (d) develop capacity-building programme for Members requesting such assistance.

In relation to "means of operation" of the WG, Brazil and Argentina also proposed that "Access to working documents shall be made public at least four weeks prior to each session and via the WCO website, without prejudice to decision by the WCO Members to protect some documents or parts thereof by confidentiality" and that documents relating to the SECURE Working Group "with a view to provide the basis for decision by other bodies of the WCO shall only be forwarded to said bodies after approval by the WCO Members".

The first proposal is an attempt to make negotiating documents publicly available. An article in IP Watch (21 October) reported that the WCO practises an "unusual policy" as it "imposes copyright over every document its bodies produce, even agendas, which means that no document can be reproduced without the organisation's express consent".

The second proposal is aimed at avoiding tactics such as that seen after the last WG meeting in April when the Secretariat produced a misleading report asserting that there was consensus on the SECURE provisional standards when in fact there was no agreement on that document. (SUNS #6535 dated 11 August 2008).

The Brazil and Argentina proposal further states that "Decisions in the SECURE Working Group shall be made by consensus" and that "WCO technical assistance cannot make use of documents still under consideration by the membership of the SECURE Working Group."

It also proposed that "Observers are admitted in formal meetings following approval by the WCO Member States within the SECURE Working Group."

According to sources, presently, it is the Secretariat that determines which IGOs and NGOs get to participate in the WCO meetings. +