By David Cronin for Intellectual Property Watch
BRUSSELS – Developing countries this week clashed with senior officials in the World Customs Organisation over an initiative designed to ensure that intellectual property rights are upheld at border posts, according to participants.

Delegates to the 172-country WCO met in its Brussels headquarters on 24-25 April to prepare international guidelines for applying IP protection in customs.

During the discussions WCO Secretary-General Michel Danet argued that customs authorities should pay greater heed to IP issues because they have been identified as a priority by leaders of the Group of Eight (G8) top industrialised countries over the past few years, the participants said.

His comments – made to the WCO’s SECURE (Standards to be Employed by Customs for Uniform Rights Enforcement) working group – drew an angry response from some representatives of developing countries.

“This is very serious,” said a developing country source, who attended the SECURE meeting. “He was basically saying that whatever those eight countries have decided, the others have to follow and that countries who are not happy could leave the organisation. That is not something you would expect from the secretary-general.”

Some developing countries have taken issue with how IP issues have been placed on the WCO’s agenda. In particular, they are perturbed by arguments put forward by WCO officials that existing international rules on intellectual property – such as the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement – are not sufficient to meet the challenges faced by customs officers.

The developing countries suggest that the WCO lacks a mandate to devise rules that go beyond those contained in TRIPS, the implementation of which is overseen by the Geneva-based WTO. TRIPS does not require customs authorities to seize goods that may contain components which breach a patent, for example.

But a source close to Danet said that the work being undertaken by SECURE is primarily designed to benefit developing countries.

“Developing countries know that they must protect intellectual property rights but they don’t have the capacity to do so,” the source said. “SECURE is about capacity building. Its objective is to strengthen customs administrations and border controls so that they are able to fight counterfeiting and piracy.”

According to the source, the guidelines being devised by SECURE will be a “kind of vehicle” for applying IP rules to customs, rather than a binding accord. “SECURE doesn’t compete with TRIPS,” he added.

This week’s SECURE meeting was part of preparatory work for the annual meeting of WCO’s governing body or council in June. Staff at WCO are hoping that the council will endorse a model law dealing with IP issues.

In a submission to this week’s meeting, China emphasised that any standards set by the WCO must be voluntary.

Ecuador, meanwhile, proposed that any standards on IP enforcement should be agreed from a socio-economic perspective. It also recommended that any eventual guidelines approved at WCO level should be complementary to the new Development Agenda of the World Intellectual Property Organisation (WIPO). That agenda stems from a resolution passed by WIPO’s general assembly in 2004, undertaking to systematically assess the impact that IP policies and measures have on developing countries in such areas as technological innovation, access to knowledge and human health. Recommendations agreed at the 2007 General Assembly are in the implementation process this year.

A separate submission to SECURE from Brazil urged that the model law should contain provisions relating to environmental protection. A Brazilian paper circulated to SECURE delegates recommends that customs administrations should have the “legal authority to act” so that patented seeds or other biological resources may be impounded in cases where the “competent authorities” believe that the patents in question were granted in a way that contravenes laws on biodiversity.

Brazil has been at the forefront of efforts to develop international rules covering access to genetic resources and to prevent the loss of endangered varieties of flora and fauna. Its paper says there is “a growing, widespread concern with cases of misappropriation” of biological resources and traditional knowledge by the granting of patents to firms involved in biotechnology and related activities.

A new report by the South Centre, which undertakes research and analysis for 50 developing countries, describes the work being carried out by the WCO on IP standards as “alarming.”

According to the report, standards developed by the WCO may be wider than the provisions in the TRIPS agreement, without there being any “prior assessment of their potential impact.” It suggests that customs authorities in developing countries should not be hurried into having to take greater responsibility for IP enforcement, given that the resources at their disposal are limited.

Viviana Munoz Tellez, the report’s author, said it would be “especially dangerous” for developing countries to have to assume new responsibilities for enforcing IP rights, considering that a “highly complex and technical process” is often required to prove that a patent has been infringed. Giving customs a role greater than its core responsibility of revenue collection would “far extend its competence and abilities,” the report adds.

Vera Franz, a specialist on IP issues with the Open Society Institute, a foundation set up by the financier George Soros, said that the WCO should be more transparent about its activities. Although some industry representatives have been involved in SECURE, non-governmental organisations complain that they have not been consulted.

“We feel that an important part of society is missing in these discussions,” Franz explained. “The fact that we (non-governmental organisations) are not in the room is a concern to us. And if we are not allowed in the room, there should at least be process for how we can participate.”

Maria Assimakopoulou, the European Commission’s spokeswoman on customs, said that her institution is taking part in SECURE in the hope that any guidelines it drafts comply with European Union law.

She pointed out that legislation on customs applying within the 27-country EU already “goes far beyond” the provisions of TRIPS. The aim of SECURE, she said, is to provide “uniform protection” of IP rights.

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