[A2k] TWN INFO: WCO secretariat for disbanding SECURE Working Group

[Sangeeta]

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

Sangeeta Shashikant
Third World Network.
email: ssangeeta@myjaring.net
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TWN Info Service on Intellectual Property Issues
2 December 2008
Third World Network
www.twnside.org.sg <http://www.twnside.org.sg/>

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 has
met 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] +