Open Letter to World Customs Organization Concerning Increased Enforcement of Intellectual Property Rights

 

 

 

 

 

 

 

 

 

28th October 2008

 

Mr. Kunio Mikuriya

Secretary General Elect

Office of the Secretary General

World Customs Organization

30, Rue du Marché B-1210 Brussels

 

Dear Sir,

 

We the undersigned public interest groups and individuals 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 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 a TRIPS plus 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 and

individuals 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:

  

1.             ACT UP/East Bay, Oakland-Berkeley, USA

2.             Action, Russia

3.             Act Up Paris, France

4.             Asia Pacific Network of People Living with HIV/AIDS (APN+), Thailand

5.             African Women Millennium Initiative on Poverty and Human Right (AWOMI), Senegal

6.             Berne Declaration, Switzerland

7.             BCHOD consulting engineers, Zambia

8.             BUKO Pharma-Kampagne, Germany

9.             Butere Focused Women in Development (BUFOWODE)

10.          Centre for Public Health and Equity, Bangalore, India

11.          Coalition for Health Promotion and Social Development (HEPS-Uganda), Uganda

12.          Community Health Cell, (SOCHARA), Bangalore, India

13.          Consortium for trade and development, India

14.          Consumers Union, Publisher of Consumer Reports, USA

15.          Consumers Association of Penang (CAP), Penang, Malaysia

16.          Drug Action Forum, Karnataka, India

17.          Economic Justice and Development Organization (EJAD), Pakistan

18.          Edmonds Institute, USA

19.          Electronic Frontier Foundation, San Francisco, USA

20.          Essential Action, Washington, DC, USA

21.          European AIDS Treatment Group (EATG), Brussels, Belgium

22.          Fenix PLUS, Russia

23.          Health Action International (Africa), Nairobi, Kenya

24.          Health Action International (Asia Pacific), Colombo, Kenya

25.          Health Action International (Global), Amsterdam, The Netherlands

26.          International Gender and Trade Network (IGTN)

27.          International Treatment Preparedness Coalition in Eastern Europe and Central Asia, Russia

28.          IP Justice, San Francisco, USA

29.          Kenya Treatment Access Movement (KETAM), Kenya

30.          Labour, Health and Human Rights Development Centre, Lagos, Nigeria

31.          Medical Action Group, Phillipines

32.          Medico International, Germany

33.          MWENGO, Zimbabwe

34.          National Front for the People Health of Ecuador/South America

35.          Network of Zimbabwean Positive Women (NZPW+), Zimbabwe

36.          Oxfam International

37.          People’s Health Movement, Global, Cairo, Egypt

38.          Positive Malaysian Treatment Access & Advocacy Group (MTAAG+), Malaysia

39.          Public Knowledge, USA

40.          Public Personalities Against AIDS Trust, Zimbabwe

41.          Third World Network (TWN), Malaysia

42.          Universities Allied for Essential Medicines (UAEM), USA

43.          Working Group on Intellectual Property, GTPI of the Brazilian

                Network for the Integration of Peoples (REBRIP), Brazil

 

Individuals:

 

44.   Aaron Katz, Senior Lecturer of Health Services and Global Health,

         School of Public Health University of Washington

45.   A. Sankar, Executive Director, EMPOWER, India

46.   Dr. Mira Shiva, Initiative for Health Equity & Society, India

47.   Dr. Vandana Shiva, Director, Research Foundation for Science, Technology and Ecology,New Delhi, India

48.   Mayer Brezis, MD MPH, Professor of Medicine, Director, Center for Clinical Quality & Safety,

         Hadassah Hebrew University Medical Center & Braun School of Public Health Jerusalem, Israel

49.   Ronald Labonté, Canada Research Chair, Globalization/Health Equity Institute of Population Health,          

         University of Ottawa