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TWN Info Service
on Intellectual Property Issues (Oct08/04) WCO's work has come under severe criticism from some developing countries for trying to push through standards on IP enforcement that are TRIPS plus (i.e. go beyond the TRIPS Agreement). There are also concerns about the lack of transparency and accountability on the part of the WCO Secretariat. Best Regards Countries
call on World Customs Organisation to be member-driven, transparent
A proposal by the two countries is the latest development in the process in which the WCO is attempting to create new international standards on the enforcement of intellectual property rights, and in which several developing countries are very concerned about both the substance and the process. In a note verbal sent to the WCO Secretariat, the two countries stressed the need for the WCO Secretariat to respect the "member-driven" nature of the organisation, adding that WCO Member States are in charge of, inter alia, "determining the content and form of possible recommendations for action to be submitted to other competent bodies within the structure of the Organisation". They also pressed for greater participation of public health, consumer and other public interest groups in the WCO and for documents under discussion at the WCO to be made publicly available. [Presently, it is very difficult or impossible for public-interest NGOs or even some inter-governmental organizations to take part in WCO meetings even as observers, although private-sector organizations have been allowed to participate.] The Group is tasked with developing "Provisional Standards to be Employed by Customs for Uniform Rights Enforcement (SECURE)". The session is also expected to discuss the Group's Draft Terms of Reference, the WCO Action Plan and the Model Provisions. The work of this group has come under severe criticism from several developing countries on substantive and procedural grounds. The countries believe that the proposed standards are largely TRIPS-plus (containing obligations deeper than required by the WTO's TRIPS agreement) and could create many barriers for developing countries in accessing essential goods such as medicines and knowledge. Some developing countries have also raised many concerns about the lack of transparency and accountability on the part of the WCO Secretariat. They feel that the Secretariat has been trying to push for a quick adoption of the draft Standards by its governing bodies (including through using manipulative methods), notwithstanding the clear lack of consensus on the SECURE document. The proposal, titled "Ensuring transparency and a legitimate, member-driven process in the SECURE Working Group", suggested that the Group decide that the documents concerning the SECURE Working Group for consideration by other WCO bodies, in particular the Policy Commission and the Council, be forwarded to said bodies once approved by the WCO Member States. It also asked that steps be taken to make publicly available the documents being considered by the Working Group. Moreover, it said that the Group "should recognize that, in view of the fact that the SECURE Working Group is still in the process of discussing the documents it has been entrusted to consider, none of [the] documents is ripe for implementation in whatever manner." The proposal also
requests the inclusion on the agenda of another item, i.e. "Draft
Terms of Reference". The first issue it raised is with regards to "Member-driven preparation of documents by the SECURE Working Group". It stated that document entitled Report of SECURE Working Group (document SP0269E1) prepared for consideration by the 59th Policy Commission "sent a worrying signal in the conduct of business in the Organisation" as that Report was "elaborated with no regard to the member-driven nature expected from the SECURE process given that its preparation was made without previous consultation nor approval by the WCO membership". It added that "the document portrayed to the Policy Commission a distorted representation of the status of discussions in the SECURE Working Group, with scant account of the positions expressed by the various delegations". It cautioned: "This example should be avoided". [In June this year, six developing countries (Argentina, Brazil, Cuba, Ecuador, China and Uruguay) issued a document criticizing the WCO Secretariat over its Report, which was prepared following the Working Group's meeting in April 2008 and was submitted to the WCO Policy Commission that met in June (See SUNS #6535 dated 11 August 2008).] Added the Brazil-Argentina document: "While the WCO Secretariat provides insightful inputs to the discussions that take place in the framework of the SECURE Working Group, leadership of the discussion belongs to the WCO Member states. This prerogative implies that the WCO Member states are in charge of inter alia, determining the content and form of possible recommendations for action to be submitted to other competent bodies within the structure of the Organisation". As a corollary, the paper stated, "it follows that the preparation of any document concerning the activities of the Working Group with a view to being considered by other WCO bodies should be the object of previous consultation and approval by WCO Member States", adding that "This understanding should apply to all cases, irrespective of whether the task of preparing said documents or drafts thereof has been entrusted to the WCO Secretariat". The second issue that the paper raised is on "Enhancing Transparency". It states: "There is no apparent reason why the work of SECURE should benefit only from inputs originating from representative of a part of the private sector". It added that the "activities taking place within the SECURE Working Group address issues whose effects extend beyond the reach of border measures, since some of the topics currently in discussion have a bearing on non-customs issues such as public health ... access to culture and knowledge (e.g., definition proposed in the "Model Provisions" for the "goods infringing intellectual property rights") and due process of law." Accordingly, it stressed that "a variety of stakeholders might be affected by the work underway within the SECURE Working Group" and "they may have a vested legitimate interest in following the developments within forum". Consequently, the paper called or "public health, consumer and other public interest groups to be given the opportunity to follow the work of SECURE". The paper highlighted that "participation by interested group is made difficult by the fact that the relevant documents are not publicly accessible in the WCO website", adding that while "some delegations might feel the need to protect under secrecy some aspects of the documents, this should not lead to the current prevailing ban in force with respect to access to the documents being considered by the SECURE Working Group." It added that the "Working Group should discuss ways and means to make available the documents that concern SECURE, without prejudice to selecting certain parts of these documents for access exclusively to a defined group of members...Making documents available would not only enhance the transparency and legitimacy of the discussions on SECURE, but would also put the WCO in line with the practice of the majority of international organizations." The paper also presented its understanding of where things stand in relation to the work of SECURE. It stated that the 2007 June Council session decided to start discussions on the document "SECURE Standards" in the framework of the SECURE Working Group, created by a decision taken during the same Council session. It added that the decision took the provisional version of the "SECURE standards", prepared by the Secretariat, merely as a basis for the discussions that took place during the first meeting of the Working Group, which took place in October 2007. But "since then the draft version of the SECURE standards' document has been modified to a large extent and the document is still open for further changes in view of the fact that not all concerns by the Working Group members have been addressed", thus the "SECURE standards" remains a "draft document". The paper said that discussions on the Working Group's Draft Terms of Reference, the WCO Action Plan and the Model Provisions are still expected and that "none of the documents submitted for discussion at the SECURE Working Group is ripe for implementation, in particular in the context of technical assistance".+
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