The World Customs Organization at its annual assembly in late June replaced a controversial group on counterfeiting and piracy with a softer dialogue mechanism that may defuse earlier concerns of potential overreaching on intellectual property infringement by customs officials. But it added a new mandate on health to a separate committee on enforcement that could raise new concerns.

Customs Directors General representing the 174 members of the WCO met in Brussels from 25 to 27 June. The international customs body has been attempting to increase its awareness and involvement in the fight against fake and pirated goods and services.

The WCO Council approved the terms of reference for the new WCO Counterfeiting and Piracy (CAP) group, and changed the terms of reference of the WCO Enforcement Committee with reference to health and safety. The Council also adopted several recommendations for facilitating trade during the economic downturn, according to the WCO.

The new CAP committee replaces a previous, controversial group on counterfeiting and piracy known as SECURE with a softened version limited to dialogue. Last year, the WCO’s 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.

“SECURE is gone,” a delegate told Intellectual Property Watch afterward.

CAP will be limited to dialogue and exchanges of national experiences with no policymaking, according to sources. It will restrict its definition of counterfeiting to trademark violations and of piracy to copyright violations, thereby removing concerns that patents and other forms of IP infringement were included. The narrower focus follows the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

“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 that was accepted without amendment, according to a source. The document was produced by the WCO secretariat as a basis for the IP discussions at the Policy Commission meeting. The final outcome documents were not available by press time.

“The added value is that this group will not move in a TRIPS-plus direction,” the delegate said.

With the SECURE group, 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 committee 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 (IPW, Enforcement, 20 June 2009).

The new 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.

The first meeting of the CAP committee is tentatively in October. The Enforcement Committee may take up health and safety at a November meeting. Observers may be invited to participate in open meetings, with the aim of “balanced” stakeholder participation.

New WCO Mandate on Health Raises Concerns

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, obtained by Intellectual Property Watch.

The members adopted a provision that asserts a mandate for the Enforcement Committee to engage in health issues. Some countries such as Brazil and India asked for further discussion of the issue but did not block the provision.

Developing countries and public health advocates have raised strong concerns in recent months over seizures by European customs authorities of legal shipments of generic medicines passing through to developing country patients (IPW, Enforcement, 5 June 2009). It is unclear how WCO’s stronger focus on this area will be received.

Before the meeting, 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.”

The text the WCO came up with was different from any of the proposals put forward earlier, but appeared to largely reflect a proposal from Japan, a source said, adding that more importantly, the clarification of the WCO Enforcement Committee’s mandate on health issues sends a message.

“Now the WCO sent a political message that … it has a mandate to engage in health discussions,” the source said.

Also at its annual meeting, the WCO exhibited its focus on intellectual property rights protection through several awards. The annual WCO Yolanda Benitez Trophy “for combating counterfeiting and piracy” was awarded to the former Yugoslav Republic of Macedonia’s Customs agency for the “great number of seizures of counterfeit goods that could affect people’s health and safety,” including automobile parts, toothpaste and detergent, WCO said in a release.

In addition, three special anti-counterfeiting and piracy awards were awarded, WCO said in a release. According to WCO: “They were given to Belgium for the biggest seizure in Europe of counterfeit anti-malaria drugs; to Saudi Arabia for its work in raising awareness in the Middle East by organising the first pan-Arab conference on this issue, by its commitment to building the capacity of customs and by translating WCO documentation into Arabic; and to Uruguay for results obtained in terms of seizures of goods that endanger people’s health including fake drugs and tequila.”