[Ip-health] IP-Watch: Member Nations Balk at World Customs Organization IP Enforcement Push

[Thiru Balasubramaniam]

http://www.ip-watch.org/weblog/wp-trackback.php?p=3D1117

Intellectual Property Watch

27 June 2008
Member Nations Balk At World Customs Organization IP Enforcement Push

By Kaitlin Mara
Concerns ran high in some developing countries last week that their
voices have been largely absent from a draft set of standards for
heightened intellectual property enforcement advancing rapidly at the
World Customs Organization.

With the draft standards sent early - and, some say, without mandate -
to decision-making bodies at the WCO, the organisation looks poised to
become the next major platform for debate on global enforcement of
intellectual property, as members discuss the possibility of
incorporating IP protection into customs law. The draft standards
document is available here [pdf].

A critique of the document [pdf] - signed by Argentina, Brazil, China,
Cuba, Ecuador, and Uruguay - was sent to the WCO secretariat, saying
the document not only misconstrues the state of play of a working
group leading the process, but also =93departs from the member-driven
nature that should guide the process.=94

A separate set of recommendations [doc] from the same group of key
developing nations =96 excepting China, but with the added support of
Bolivia, Chile, Colombia and Costa Rica =96 suggests the WCO Council
(the organisation=92s decision-making body) hold off on making any
decisions regarding the draft standards until the working group has
explicitly agreed upon terms of reference and developing countries
have had time to assess the standards.

The two communications were intended to influence the decision of the
WCO Commission (which can make representations to the Council, but has
no decision making power), according to a source from one of the
signatory countries. They seem to have succeeded.

As of Monday, the Commission had decided to recommend the draft
standards be sent back for further work. However, Michael Schmitz of
the WCO emphasised that this was =93irrelevant=94 to the final decision,
and that the Council would have the opportunity to accept, reject, or
modify the recommendation during its meetings yesterday and today.

SECURE Working Group

The WCO tool SECURE (Standards to be Employed by Customs for Uniform
Rights Enforcement) is tasked with building a set of standards,
procedures, and best practices that will coordinate =93global effort to
suppress all kind of intellectual property rights infringements,=94
according to the WCO website. Its working group has met three times
since its first meeting in October 2007 trying to draft a set of
voluntary standards designed to guide customs offices in stopping
piracy and counterfeiting when it hits the border.

The WCO says that its members recognise a =93major role=94 of customs
administrations in protecting IP and that the organisation should make
=93every effort=94 to do so.

Susan Sell, director of the Institute for Global and International
Studies at the Elliott School of International Affairs in Washington,
DC, said in a recent paper (available here [pdf]) that the SECURE aims
were =93TRIPS-plus-plus,=94 referring to extending beyond the scope of the
1994 World Trade Organization Trade-Related Aspects of Intellectual
Property Rights Agreement (TRIPS). =93These new anti-counterfeiting and
enforcement initiatives are just the latest mechanisms to achieve the
maximalists=92 abiding goal of ratcheting up IP protection and
enforcement worldwide,=94 she said.

Viviana Mu=F1oz Tellez of the intergovernmental South Centre said in the
South Centre Bulletin (16 April 2008 issue [pdf]) that the SECURE
working group seems to be =93setting new standards of intellectual
property enforcement through the back door,=94 and that this =93may extend
beyond the WCO mandate.=94 Separately, she told Intellectual Property
Watch that standards presented as voluntary could become mandatory
down the line. =93Soft law,=94 she said in the article, =93is often the
basis on which =91hard law=92 is later established.=94

A WCO spokesperson explained that terms of reference with WCO working
groups are often developed over time, as opposed to before work is
started.

One of the specific issues Sell cites as most worrying is that the
provisions would extend the scope of monitoring of IP violations to
goods being exported as well as goods in transit or in warehouses
(TRIPS only requires monitoring on imported goods).

A copy of the draft provisions obtained by Intellectual Property Watch
shows brackets (that is, disagreements) remain on the issue of
extending violation monitoring to exported and in-transit goods, but
this is not comforting to those who seek further review of the already
unbracketed text.

Other concerns of Sell=92s are that the standards would extend
monitoring to all IP, as opposed to just trademark and copyright, and
would free IP rights holders from the burden of providing evidence
that there is infringement =93initiate a procedure.=94

=93The whole document is open until all issues are agreed upon,=94 said a
source in the Brazilian government, adding that the text as it stands
is not ripe for approval even in partial form.

Doubts About Inclusiveness of Participants

Formally, every member state of the WCO is allowed to participate in
meetings of the SECURE working group. But in practice, this has not
been the case. The response document to SECURE=92s draft standards
claims the standards document =93was produced without previous
consultation to the members of the organisation and therefore, at
best, reflects the positions and intentions of the secretariat
regarding the actions to be taken with respect to the document.=94

Mu=F1oz=92s article expressed concern that among developing nations =93only
Brazil is actively engaged in the SECURE Working Group discussions.=94

A developing country source told Intellectual Property Watch that
developing nations had not thought of customs issues as potentially
being used to enforce IP rights. It was developed countries that see
WCO as a platform, perhaps because of frustration in getting desired
protection mechanisms through the World Intellectual Property
Organization, the source added.

The Brazilian source echoed that view, saying that Brazil only
realised what was happening in the second meeting of the SECURE
working group, as there was =93no expectation of WCO taking on IP
negotiations.=94

Remaining brackets in the text - for instance, a footnote defining the
standards as =93voluntary=94 and not prejudiced against flexibilities in
IP enforcement provided by TRIPS or the WIPO Development Agenda and a
new standard that would protect existing legislation on biodiversity
and traditional knowledge - were the result of that realisation and
subsequent action, said the source.

But groups like the European Union (supporters of strong IP regimes)
had been active in the working group from the beginning, however, the
source added. Spokespeople for European customs did not respond to
requests for comment as of press time.

The short staffing of developed country missions in Europe also was
cited as a reason for low participation by several sources, who said
it is very difficult for a small staff to cover al the activity in
both Brussels and Geneva.

However, a WCO source noted that all those who have signed on in
support [pdf] of the SECURE standards are developing nations.

Private Sector at the WCO?

There also was substantive concern that rights holders, such as
industry trade associations, were participating in WCO meetings at the
same level as member states, to the extent of having their own vice-
chair. Munoz=92s article characterised their involvement as =93on equal
footing=94 with members, and said they can =93equally suggest draft
language.=94

Schmitz said that the private sector members were only observers,
though it is true that there is a vice-chair for industry. The SECURE
working group allows for both private sector and accredited observers,
but neither is allowed voice in consensus, Schmitz said, adding that
that included the vice chair. The right to have a voice in consensus
is reserved only for customs officers of member states, he emphasised.

=93We=92ve been very open with the public,=94 he added, about the allowance
of private sector stakeholders in the meetings. What is unique about
the way that WCO meetings are run is that observers may speak and
express opinions once members have spoken. This is in contrast to the
WTO and WIPO, where observers generally only offer comment if asked
to, or with express permission of a meeting chair.

A source who had been at the meetings said =93truth is in practice=94 and
questioned whether such divisions between observer and member were
significant, when observers are sitting at the main discussion tables
and actively participating in the meeting=92s discussions.

Kaitlin Mara may be reached at kmara@ip-watch.ch.

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997