By William New
In what might be seen as a victory for defenders of flexibilities for poor nations in international trade rules, the World Customs Organization in December recommended the discontinuance of a working group on intellectual property enforcement standards after it became “deeply embroiled” in debate from member governments fearing it would impose undue obligations on them. But the IP and customs issue may not be out of the fire yet.

A new committee will be sought with a stronger focus on technical assistance and capacity building, according to a WCO document, but this has raised new doubts about participation in new committee’s creation, according to a developing country official.

“The Policy Commission was informed that the SECURE Working Group established by the Council in June 2007 to deal with IPR issues had become deeply embroiled in difficulties related to its terms of reference, essentially because of a perceived fear that the group’s work on standard-setting might be used as a means of enlarging the obligations imposed on countries by the WTO TRIPS Agreement,” said the summary of outcomes document [pdf] of the WCO Policy Commission, which met from 9-11 December in Buenos Aires. TRIPS is the World Trade Organization Trade-Related Aspects of Intellectual Property Rights Agreement. SECURE stands for Standards to be Employed by Customs for Uniform Rights Enforcement.

The outcome may also reflect a new approach by incoming Secretary General Kunio Mikuriya, who was to take office at the 174-member organisation on 1 January. In December he played a role in the creation of a new type of body for IP enforcement.

Kunio Mikuriya “proposed that the standard-setting work be set aside and that in place of the SECURE Working Group, a new body be set up under the Permanent Technical Committee or the Enforcement Committee to develop practical means of supporting Customs administrations with the conduct of their IPR-related controls,” the outcome document said. Japan announced a plan to establish a roughly €1.6 million euro fund for capacity building and technical assistance in intellectual property rights.

The Policy Commission recommended that the SECURE group not meet again pending a decision at the WCO Council at its June 2009 annual sessions on the way forward; and that the WCO secretariat will prepare draft terms of reference for the new WCO body, to be finalised by the Policy Commission before going to the Council. They also agreed technical assistance and capacity building should continue in the meantime.

Participation Concerns Return

Concerns remain for some developing countries that are sceptical of the new committee’s terms of reference since they are being drafted by the Policy Commission, which consists of some two dozen member governments, about half of which are from developed countries, a source said. For the developing countries, this could represent a return to the non-transparent and unbalanced approach to policymaking of which they accused the WCO under the SECURE process. The Policy Commission is expected to meet just before the annual WCO Council to draft the new committee’s terms of reference, making the Council meeting the first time to a majority of governments will consider the proposed new committee.

At a meeting of the SECURE working group in June, several members, including Argentina, Brazil, China, Cuba, Ecuador and Uruguay, raised the concern that their voices were not heard in the preparation of the draft set of standards on enforcement (IPW, Enforcement, 27 June 2008).

The IP enforcement standards effort at the WCO generally suffered from doubts from countries and activists concerned that developed nations who own the majority of global IP rights might be using this less-recognised forum to quietly raise global standards above the level of the TRIPS agreement. In recent years, a number of developing countries have complained that the terms of the 1994 TRIPS agreement are having or will have deleterious effects on their economies.

Concern also arose over the prospect of customs officials making determinations on suspected pirated and counterfeit goods, especially if it reached beyond TRIPS Article 51, which allows customs action only on copyright and trademark.

At the fourth and final meeting of the SECURE Working Group in October, progress deadlocked under continued resistance of several members, such as Argentina and Brazil, according to sources. Without agreement on terms of reference for the working group, it could not move forward, a government official said.

Brazil circulated a document to members before the October meeting entitled, “Ensuring transparency and a legitimate, member-driven process in the SECURE Working Group.”

One of the complaints was that documents were developed without sufficient public participation, including by making documents inaccessible to the public. At the October meeting, some member governments questioned the WCO’s practice of imposing copyright over every document its bodies produce, even agendas, which means that no document can be reproduced without the organisation’s express consent. The governments said the policy was intended only for the organisation to protect the rights in publications made for sale or containing proprietary information and is now blocking access to information about the organisation’s work (IPW, Enforcement, 21 October 2008).

Separately, the Policy Commission also agreed on the need to focus on trade facilitation in the current climate of the global financial crisis, so as to avoid new barriers to trade and point attention to shrinking budgets especially in developing countries.

The WCO did not comment for this story.

William New may be reached at wnew@ip-watch.ch.