[Ip-health] TWN INFO: NGOs criticize Customs Organisation's TRIPS-Plus initiative

[Sangeeta]

NGOs criticize Customs Organisation's TRIPS-Plus initiative
SUNS #6588 Wednesday 12 November 2008

Geneva, 9 Nov (Riaz K. Tayob) -- Over fifty public interest NGOs and
individuals worldwide have registered their concerns about recent
developments in the World Customs Organisation, particularly the attempt to
introduce intellectual property enforcement standards for customs
authorities that are higher than the WTO's TRIPS Agreement.

In an open letter addressed to Kunio Mikuriya, the Secretary General-elect
of the World Customs Organisation (WCO), the NGOs raised concerns about the
attempt by WCO officials to establish the TRIPS-plus standards through the
WCO's SECURE Working Group. They also complained about the lack of dialogue
with, and involvement of public interest organisations in the
standard-setting process and the lack of transparency surrounding the
Working Group's work.

The NGOs called on the WCO to enable accreditation of public interest NGOs
to the various WCO bodies and in particular the SECURE Working Group, to
participate in discussions of any instruments pertaining to intellectual
property rights.

They also asked the WCO to make publicly available all documents that will
be considered in, as well as the meeting reports, agenda, and participants'
list of the various WCO bodies, in particular, the SECURE Working Group; and
to provide an opportunity to public interest NGOs to submit written inputs
on the documents being considered by the group.

The NGOs also called for the participation of stakeholders and experts in
the working group to reflect a balance of perspectives on the implications
of SECURE standards. The group should deliberate on the appropriate role and
scope of IP enforcement and of customs officials in these matters and
accordingly the role of WCO (if any) in these matters.

The letter follows a recent note verbale by Brazil and Argentina to the WCO
Secretariat stressing the need for the WCO Secretariat to respect the
"member-driven" nature of the organisation, and pressing for greater
participation of public health, consumer and other public interest groups in
the WCO and for documents under discussion at the WCO to be made publicly
available.

The work of this Working Group has come under severe criticism from several
developing countries on substantive and procedural grounds.

The letter states "IP is a complex topic and the subject of intense debate
nationally as well as globally especially since the establishment of minimum
IP obligations by the TRIPS Agreement", adding that "For developing
countries and even consumers in developed countries, these standards have
created severe problems in terms of access to essential items such as
medicines, knowledge and other tools necessary for development."

Therefore, it is of "utmost importance to ensure that the policy space and
flexibilities that are inherent in the TRIPS Agreement are retained, to
always enable the right balance between public interests and the interests
of the IP holder as well as to safeguard the right to development of
developing countries."

The NGOs raised concerns about "the expansive IP enforcement standards that
were being hurriedly pushed by SECURE", adding that "it is well known that
the push for stronger TRIPS-plus enforcement standards comes from developed
countries and their commercial entities that seek international
organisations to set such standards. Noting the recent developments at the
WCO, it appears that WCO is targeted as one such organisation".

The NGOs stated that the group and its draft standards employed by customs
for uniform rights enforcement (SECURE) are "tilted in favour of the rights
of the IP holders and go against the interests of developing countries as
they are TRIPS-plus in nature and will not only undermine access for
developing countries but also require these countries to divert public
resources into enforcement of private rights.

"And although the SECURE standards are purported to be voluntary', it can be
anticipated that developed country parties and other entities will put
pressure on developing countries to adopt these as national law, via
bilateral instruments or technical assistance.

"The activities also extend beyond the authority, capacity as well as the
expertise of customs officials." For example, the letter adds, "customs
officials would not have the capacity or the expertise to determine whether
a particular pharmaceutical product infringes patent rights or is a
legitimate generic medicine being imported for local needs, consistent with
flexibilities available within the TRIPS Agreement."

"In addition, the standards introduced could potentially work as a barrier
to international trade of generic medicines."

The NGOs said that "the WCO and the SECURE Working Group in particular needs
to engage in a long period of reflection and discussion before adopting any
instrument in relation to IP", because "if the delicate balance between the
public interests and IP holder as well as the policy space found in the
TRIPS agreement is lost, the consequences particularly in developing
countries will be dire".

The letter raises concerns that "despite the wide-ranging effects of the
SECURE Working Group's work and its implications on access to knowledge, the
right to health as well as other fundamental rights of citizens of the
world, SECURE only benefits from the inputs of the private sector which
favour a TRIPS plus enforcement agenda".

In addition, documents for discussion in the SECURE Working Group as well as
meeting reports and other relevant documents are not readily available on
the WCO's website, making it difficult for public interest groups to follow
developments on the activities of the WCO as well as of SECURE.

Among the NGOs signing the letter are Peoples Health Movement, International
Gender and Trade Network (IGTN), Health Action International, Act Up
(Paris), Asia Pacific Network of People Living with HIV/AIDS (Thailand),
African Women Millennium Initiative on Poverty and Human Rights (Senegal),
REBRIP (Brazil), Mwengo (Zimbabwe), Third World Network (Malaysia), Berne
Declaration (Switzerland), Consumer Union (USA), BUKO Pharma-Kampagne
(Germany), Essential Action (USA), Oxfam International, and Electronic
Frontier Foundation (USA). +