[A2k] TWN INFO: Customs Organisation meeting ends in some disarray

[Sangeeta]

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.

Regards
Sangeeta Shashikant
Third World Network

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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. +