WCO Considers New ‘Dialogue Mechanism’ On Counterfeiting, Explicit Focus On Public Health

The World Customs Organization this week will try to reach agreement on a softened replacement group against counterfeiting and piracy that may defuse concerns of overreaching by customs officials. It also will consider a proposal to add an explicit focus on public health and safety to its enforcement activities.

The WCO Policy Commission will meet from 22-27 June in Brussels. It will consider a recommendation to replace a previous, controversial group on counterfeiting and piracy with a softened version limited to dialogue. It also will consider whether to add some variation of the words “public health and safety” to the terms of reference of the WCO Enforcement Committee.

The Enforcement Committee, which covers technical issues ranging from drug trafficking to intellectual property rights, could not reach agreement on the health issue in its February meeting, according to a 20 May secretariat document drafted for the Policy Commission, available here [pdf].

There were several proposals on ways to work in the words “health and safety” to the committee’s terms of reference. But some members argued that none were necessary as it is already covered in the existing terms of reference through the terms “fraud” and “smuggling.” Proponents of adding the terms saw importance of sending a political message. The secretariat document provides views expressed by members, both opposed to the words’ inclusion and in favour.

The Brussels-based international customs body is attempting to increase its awareness and involvement in the fight against fake and pirated goods and services. It is proposing new non-negotiating group, to be called the WCO Counterfeiting and Piracy (CAP) Group, that would be a “dialogue mechanism” and would pointedly not engage in norm-setting.

“The group shall constitute a dialogue mechanism on border measures on trademark counterfeiting and copyright piracy,” said the 11 June draft terms of reference document available here [pdf], produced by the WCO secretariat as a basis for the IP discussions at the Policy Commission meeting.

Last year its 2007 proposal for terms of reference of a group called SECURE (Standards to be Employed by Customs for Uniform Rights Enforcement) met with resistance from some of its members (IPW, Enforcement, 8 January 2009).

Opponents said they feared the group would place decisions about possibly infringing goods in the hands of unqualified customs agents rather than judges, and that the process had been insufficiently inclusive and open.

In December, the secretariat announced the SECURE group was recommended to be discontinued, and a new group would follow in its place.

“In its discussions, the group will respect the national legal regimes of members, as well as their respective levels of commitments in international agreements, such as TRIPS, to which members are party, and shall not engage in norm setting nor seek to make recommendations or adopt particular measures,” the 11 June secretariat document said.

TRIPS is the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights. The WCO said norm setting “encompasses any kind of provisions (binding or non-binding), irrespective of the name, such as standards, best practices, recommendations, guidelines or any other denomination.”

The agreed draft terms of reference were finalised over three informal meetings since December, culminating with a 4 June meeting of 22 members, according to the secretariat. Under the terms of reference, the new group would be established this month and would have an unlimited mandate “until superseded or revoked,” with a WCO member as chair, rotating every year elected by group members.

The group’s purpose and scope would be “limited to an exchange and discussion of views, experiences, practices and initiatives of customs administrations and discussions on WCO capacity building activities for members requesting assistance.”

The group will deliver a “factual report” to the WCO Permanent Technical Committee after each session. Sessions will typically be two days twice a year, but could be held “as and when required, subject to the approval” of that permanent committee.

Observers may be invited to participate in open meetings, with the aim of “balanced” stakeholder participation.

The Policy Commission has 23 members, and examines issues in the agenda of and prepares recommendations for the WCO Council, which is the highest body in the WCO structure.

The IP issues will be decided by the Council and so will be examined first by the Policy Commission, according to sources. It remains to be seen if the Policy Commission will change any wording in the negotiated proposed terms of reference for the new group.

The secretariat also has been providing technical assistance on IP rights to different regions, according to the document prepared for this week’s meeting. Missions have been held in the Dominican Republic, Kenya, Dubai (United Arab Emirates), Japan, and Morocco, and will be held in Mongolia, Senegal, Benin and Cambodia. WCO also has provided customs expertise by request from the WTO, the World Intellectual Property Organization and other stakeholders in Guatemala, Moldova, Mexico (with the US Justice Department), European Parliament, and rights holders associations.