The developing world is up in arms over what they see as rich industrial countries trying to extend the scope of TRIPS by going through "the back door."

The World Customs Organization (WCO) is the intergovernmental organization noted for its work in the areas of global standards, simplification of Customs procedures, trade supply chain security, facilitation of international trade, enhancement of Customs enforcement and compliance and, yes, anti-counterfeiting and piracy initiatives.

But now countries in the developing world, led by Brazil, are accusing the organization of overstepping its boundaries and going beyond its mandate. The reason – WCO’s recent recommendation on intellectual property rights, a voluntary “model legislation” to provide guidance on how IP rights can be upheld at border posts.

According to an article by David Cronin in IP Watch, while WCO officials are hoping that the model will be approved by the 171-country body in June, representatives of developing countries met recently to address concerns raised by Brazil over the proposal’s likely scope. Brazil objects to the WCO recommendation that confers on customs authorities certain powers and enables them to take measures that go beyond the key international accord on IP issues: the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS does not oblige its signatories to introduce border control measures relating to exports or goods in transit.

The WCO’s role in enforcing IP rights.  With a leadership role to play in IPR protection, WCO offers a tangible and practical response to anti-counterfeiting activity by creating a set of standards which would deal with enforcement of intellectual property rights by its members. The resulting tool, known as SECURE (provisional Standards to be Employed by Customs for Uniform Rights Enforcement) has been devised by the WCO in order to better co-ordinate Customs’ worldwide efforts to interdict and disrupt the illicit trade in IPR-infringing goods. It includes provisional standards, procedures and best practices that will prove effective in a coordinated global effort to suppress all kind of intellectual property rights infringements.

The model legislation would address issues of technology. WCO officials think that TRIPS does not adequately address this area. For example, TRIPS does not contain provisions relating to the use of devices that circumvent the controls used by some companies in the music industry to ensure that CDs cannot be copied or transferred to digital players such as iPods. WCO wants to enable customs authorities seize devices of that nature. Part of the proposal includes the following definition:

Protection Defeating Devices shall mean: Devices, products, components or parts, such as unauthorised smart cards, set top decoders or circumvention software, which are primarily designed or adapted to circumvent any technological measure, and shall be deemed to include any illegitimate authentication means.

Going through the backdoor? The developing countries are opposed to such measures and argue that SECURE has no mandate to alter the international legal framework on intellectual property. And in an effort to probably spin the issue into a rich vs. poor countries debate, a Brazilian diplomat suggested that leading industrialized countries in Europe and North America were using the WCO proposal to extend the scope of TRIPS – knowing they would be unable to win enough support at the World Trade Organization to do just that. The diplomat argued that rich countries are using the WCO, a separate body, to introduce measures that go beyond TRIPS “through the backdoor.”

The diplomat added that this would be setting a dangerous precedent and that industrial countries could try to insert provisions agreed at WCO level into future free trade agreements they negotiate with poorer countries.

“Customs are not just a revenue collector.” This is what a WCO spokesman said in response. “They are a protector of society,” he added, as a way to emphasize that the proposal is really aimed at fighting the trade in fake medicines, an enormous amount of which is flooding Africa in particular. “The effect of counterfeit medicines on society is to kill people. That’s why customs are involved in this issue,” he concluded.

Furthermore, the model legislation is completely voluntary and WCO member countries may or may not place it in their national statute books.

Open source/open content advocates and bloggers may see this as intellectual monopolies imposing unfair regimes on developing countries. But as a spokesman for the European Federation of Pharmaceutical Industries and Associations (EFPIA) said, “The fact is there are more counterfeit medicines being distributed worldwide. Counterfeit medicines make people incur health risks, so there has to be an international response to this problem.”