SIGN-ON LETTER TO THE WORLD CUSTOMS ORGANISATION

Mr. Kunio Mikuriya
Office of the Secretary General
World Customs Organization
30, Rue du MarchГฉ B-1210 Brussels

Dear Sir,

We the undersigned public interest groups are writing to raise our concerns
about recent developments in the World Customs Organisation, in particular
the setting of intellectual property enforcement standards that go beyond
the TRIPS agreement (TRIPS plus) in the SECURE Working Group, the lack of
dialogue with, and involvement of public interest organisations in the
standard setting process and the lack of transparency surrounding the
Working Group’s work.

IP is a complex topic and the subject of intense debate nationally as well
as globally especially since the establishment of minimum IP obligations by
the TRIPS Agreement. For developing countries and even consumers in
developed countries, these standards have created severe problems in terms
of access to essential items such as medicines, knowledge and other tools
necessary for development. It is therefore of utmost importance to ensure
that the policy space and flexibilities that are inherent in the TRIPS
Agreement are retained, to always enable the right balance between public
interests and the interests of the IP holder as well as to safeguard the
right to development of developing countries. 

Article 7 of the TRIPS Agreement is clear and explicit on this: “The
protection and enforcement of intellectual property rights should contribute
to the promotion of technological innovation and to the transfer and
dissemination of technology, to the mutual advantage of producers and users
of technological knowledge and in a manner conducive to social and economic
welfare, and to a balance of rights and obligations”.

In this context the expansive IP enforcement standards being pushed
hurriedly in the SECURE Working Group are of deep concern. It is well known
that the recent push for strong TRIPS plus enforcement standards comes from
developed countries and their commercial entities, and they are seeking
international organizations to set such standards on their behalf. Noting
the recent developments at the WCO, it appears that WCO is targeted as one
such organisation.

We are strongly of the view that activities taking place within the SECURE
Working Group such as the “Working Draft on Provisional Standards Employed
by Customs for Uniform Rights Enforcement” are heavily tilted in favor of
the rights of the IP holders and go against the interests of developing
countries as they are TRIPS plus in nature and will not only undermine
access for developing countries but also require these countries to divert
public resources into enforcement of private rights. And although the SECURE
standards are purported to be "voluntary", it can be anticipated that
developed country parties and other entities will put pressure on developing
countries to adopt these as national law, via bilateral instruments or
technical assistance.

The activities also extend beyond the authority, capacity as well as the
expertise of customs officials. For example, customs officials would not
have the capacity or the expertise to determine whether a particular
pharmaceutical product infringes patent rights or is a legitimate generic
medicine being imported for local needs, consistent with flexibilities
available within the TRIPS Agreement. In addition the standards introduced
could potentially work as a barrier to international trade of generic
medicines.

Thus we firmly believe that the WCO and the SECURE Working Group in
particular needs to engage in a long period of reflection and discussion
before adopting any instrument in relation to IP. This is because if the
delicate balance between the public interests and IP holder as well as the
policy space found in the TRIPS agreement is lost, the consequences
particularly in developing countries will be dire.

We are also very concerned, that despite the wide-ranging effects of the
SECURE Working Group’s work and its implications on access to knowledge, the
right to health as well as other fundamental rights of citizens of the
world, SECURE only benefits from the inputs of the private sector which
favor an IP enforcement agenda. In addition documents for discussion in the
SECURE Working Group as well as meeting reports and other relevant documents
are not readily available on the WCO’s website, making it difficult for
public interest groups to follow developments on the activities of the WCO
as well as of SECURE.

In view of the above, we the undersigned public interest organizations
urgently call on the WCO to:

(1) enable the accreditation of public interest NGOs to the various WCO
bodies and in particular the SECURE Working Group, to participate in
discussions of any instruments pertaining to intellectual property rights;

(2) make publicly available all documents that will be considered in, as
well as the meeting reports, agenda, and participants list of the various
WCO bodies, in particular the SECURE Working Group;

(3) provide an opportunity to public interest NGOs to submit written inputs
on the documents being the object of consideration by SECURE Working Group
and to disseminate these inputs widely;

(4) initiate public discussion within the context of the SECURE Working
Group, with the participation of a wide variety of stakeholders and experts
reflecting a balance of perspectives to provide an opportunity for the
Working Group to better understand the implications of SECURE standards. The
discussion should also deliberate on the appropriate role and scope of IP
enforcement and of customs officials in these matters and accordingly the
role of WCO (if any) in these matters.

Signatories If your organisation is able to sign on to this letter, please send the name of your organisation, country, contact person and email address by 28th October to This e-mail address is being protected from spam bots, you need JavaScript enabled to view it