By David Cronin for Intellectual Property Watch
BRUSSELS – The World Customs Organisation is recommending far-reaching new rules on intellectual property rights that some say may extend beyond the organisation’s mandate.

Staff at the WCO’s Brussels headquarters are preparing what they describe as voluntary ‘model legislation’ to provide guidance on how IP rights can be upheld at border posts.

While they are hoping that the model will be approved by the 171-country body in June, representatives of developing countries were meeting this week to address concerns raised by Brazil over the proposal’s likely breadth.

Brazil is perturbed by a WCO recommendation that customs authorities need to be conferred with powers and be able to take measures that are additional to those set out in the key international accord on IP issues: the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS does not oblige its signatories to introduce border control measures relating to exports or goods in transit.

During discussions in February, Brazil argued that a WCO working group known as SECURE (Standards to be Employed by Customs for Uniform Rights Enforcement) had no mandate to alter the international legal framework on intellectual property. SECURE document on provisional standards employed by Customs available here (pdf).

A Brazilian diplomat suggested that the governments from leading industrialised countries in Europe and North America are aware that they would be unable to win sufficient support at the World Trade Organisation to extend the scope of TRIPS. The diplomat argued that rich countries are using the WCO, a separate body, to introduce measures that go beyond TRIPS “through the backdoor.”

“There is a question of setting a dangerous precedent,” the diplomat added, stating he would “not be surprised” if industrial countries try to insert provisions agreed at WCO level into future free trade agreements they negotiate with poorer countries.

WCO staff perceive that TRIPS does not adequately address issues of technology. For example, TRIPS does not contain provisions relating to the use of devices that circumvent the controls used by some companies in the music industry to ensure that CDs cannot be copied or transferred to digital players such as iPods.

Plans being considered by the WCO are being designed to enable customs authorities seize devices of that nature. But Brazil is opposed to such measures. “Existing legislation allows me to take a CD that I’ve bought and transfer it to my iPod,” the diplomat argued. “That is fair and legal.”

A WCO spokesman said, however, that the organisation’s main desire is to fight the trade in fake medicines.

“We are not talking about designer handbags or designer sunglasses,” he added. “There is an enormous amount of counterfeit medicines flooding Africa in particular. From a health and safety angle, that poses a particular concern.”

“Customs are not just a revenue collector. They are a protector of society,” he said. “The effect of counterfeit medicines on society is to kill people. That’s why customs are involved in this issue.”

The spokesman also insisted that it will not be compulsory for WCO member countries to place the ‘model legislation’ on their national statute books. “This is completely voluntary,” he said. “Those that are interested can jump on the bandwagon. And those who are not can walk away.”

A spokesman for the European Federation of Pharmaceutical Industries and Associations (EFPIA) said, “The fact is there are more counterfeit medicines being distributed worldwide. Counterfeit medicines make people incur health risks, so there has to be an international response to this problem.”

James Love from Knowledge Ecology International, an organisation monitoring the global IP debate, alleged that there has been no transparency about the discussions taking place at the WCO.

The lack of involvement of consumer and other advocacy groups in the WCO’s work may explain why rich country governments view it as a forum where they can strive for new IP rules, free from scrutiny. “They try to pick a forum where consumer representation is weak,” he added.

David Cronin may be reached at info@ip-watch.ch.