TWN Info Service on Intellectual
Property Issues (Aug08/01)
Geneva, 6 Aug (Sangeeta Shashikant and Riaz K Tayob) -- A United Nations agency dealing with postal services may soon be used to help to police or enforce violations of intellectual property rights in a move that has been little noticed by many developing countries' policymakers.
The 24th Universal Postal
Congress (UPC) is meeting in
A Committee of the UPC, on 1 August, discussed the issue of counterfeit and pirated items sent through the post. Three proposals on this topic were made, and two of them were adopted by vote.
The discussions on the proposals showed that many countries, including some developed countries, were concerned that the postal services at national level were being roped in to fight against counterfeit products when they did not have the legal and other expertise or the scope to deal with this, including on determining whether a product is counterfeit or violates intellectual property laws.
Despite concerns raised by many countries, two of the proposals were adopted, because the UPU Committee makes decisions based on a vote (after discussions that are brief and limited, compared to the length of discussions allowed in other UN organizations), rather than by consensus (as is the case in most other UN organizations).
The proposals discussed were: (1) a Resolution 40 on "Counterfeit and pirated items sent through the post"; (2) an amendment to the UPU Convention on the list of articles prohibited through the post; and (3) an amendment to the Convention on sender's liability.
The proposed Resolution and the amendment on the list of prohibited articles were adopted by member states while the amendment concerning sender's liability was rejected.
According to a source from the UPU, there has been increasing pressure from the World Customs Organisation (WCO) to adopt proposals on counterfeiting and pirated items.
The WCO is among the international organizations that are being used to push forward an "Anti-Counterfeiting Agenda" drawn up by major developed countries. Other organizations are the World Health Organisation (WHO) and the World Intellectual Property Organisation (WIPO).
The UPU, with its Headquarters
According to a policy expert on IPRs, Susan Sell, proponents of the IP maximalist agenda are using the concepts of "counterfeiting", "piracy" and "enforcement" in international organizations to push their agenda to set or enforce higher IP standards.
Sell, who is Director of the Institute for Global and International Studies and Professor of Political Science and International Affairs at George Washington University (USA), in a recent paper said the IP anti-counterfeiting and enforcement agenda involves hundreds of OECD-based global business firms and their foreign subsidiaries.
It also includes initiatives and programmes such as the Anti-Counterfeiting Trade Agreement (ACTA); Interpol's Standards to be Employed by Customs for Uniform Rights Enforcement (SECURE); the US Chamber of Commerce's (USCC) "Coalition against Counterfeiting and Piracy Intellectual Property Enforcement Initiatives: Campaign to Protect America"; the Security and Prosperity Partnership of North America (SPP); WHO's "International Medicinal Products Anti-Counterfeit Taskforce" (IMPACT); WIPO's Advisory Committee on Enforcement (ACE) discussions; bilateral and regional free trade agreements, investment treaties and Economic Partnership Agreements.
These new anti-counterfeiting and enforcement initiatives are the latest mechanisms to achieve the goals of what Sell calls the "IP maximalists", which is to "ratchet up" IP protection and enforcement worldwide, beyond the TRIPS Agreement. Part of the aim is to counter recent setbacks in raising IP standards at the multilateral level, and to counter public campaigns such as the access to knowledge and medicines movement, says Sell.
The proposals before the UPU signify that UPU is the latest addition to the "strategic forum shifting" for pushing forward the "Anti-Counterfeiting" Agenda.
Resolution 40 which was adopted
(with an amendment proposed by
-- take all reasonable and practical measures to support Customs in their role of identifying counterfeit and pirated items in the postal network;
-- cooperate with the relevant national and international authorities to the maximum possible extent in awareness-raising initiatives aimed at preventing the illegal circulation of counterfeit goods, particularly through postal services."
The preamble to Resolution 40 notes that "the postal channel is used, together with other distribution channels, for the sending of counterfeit and pirated items"; "that the POC Committee 3 Customs Support Project Group has carried out a study on UPU customs and security-related issues concerning intellectual property matters"; "that the results of the study revealed that postal administration have no legal competence in determining whether or not an item is a counterfeit or whether a customs declaration has been falsely completed; "that the Customs and experts on intellectual property rights are primarily responsible for determining whether an item is counterfeit"; that the legislation of member countries on how to deal with counterfeit and pirated items varies from country to country; and finally "that the above problems cause operational difficulties and legal problems for the countries concerned".
To implement the actions, the Resolution mentions several "performance indicators", including assistance given to designated operators to develop strategies at a national level in cooperation with national customs authorities; enabling postal administrations to learn risk-assessment techniques on how to identify counterfeit and pirated items in the postal network; reading materials developed in cooperation with the WCO; participation of the UPU at international forums to study/follow postal-related issues concerning IP infringements; developing an e-learning module in cooperation with the WCO.
Resolution 40 is a "Proposal of a General Nature" submitted by Postal Operations Council (POC) to the Committee. The WCO-UPU Contact Committee and the POC 3 Customs Support Project Group presented this Resolution to the POC for examination in January 2008.
(The Customs Support Group was reconstituted on the basis of Bucharest Congress resolution C63/2004. Its overall objective is to raise the profile of Customs issues and to help UPU member countries prepare for regulatory changes addressing the issues. One area of activity it has focused on is closely following regulatory questions and where necessary, representing the interests of the UPU community at large with policymakers, at national and international level, paying attention to new regulatory requirements in various countries and regions, as well as potential intellectual property rights issues.
(The WCO-UPU contact committee is an official forum for cooperation between the WCO and UPU. Actions carried out include the possible effect of WCO's SAFE Framework of Standards, particularly the concept of authorized economic operator on posts, efforts to combat illegal transactions in counterfeit or pirated goods, including the possible formulation of regulations, WCO's input into efforts to develop UPU security standards and procedures, development of e-learning modules, updating joint WCO-UPU publications etc).
(PSAG is chaired by the
A representative of the WCO said that it cooperated to enhance the training for members and postal administrations and so it generally welcomed and supported the proposal outlined. It also added that a study was being conducted to fight against counterfeiting.
It was concerned with the
requirement to raise maximum awareness to prevent illegal circulation
of counterfeit goods particularly through postal services. This suggested
that the postal service was also responsible to prevent illegal circulation
of counterfeit goods, although such circulation may not always be through
the postal service. In many countries, whether an item is counterfeit
lies with the body that is concerned with IP and so the language needs
to be refined further.
The International Bureau of UPU said that the Resolution was only a statement of intent and each country can interpret the resolution.
Despite several countries
wishing to make statements on the issue, the Chair cut the debate short
and called for a vote. In response,
95 countries voted in favour of the Resolution, 22 against and 20 countries abstained from voting.
The result of the outcome
has now led several countries to file an appeal to the plenary session,
when the Resolution comes up for final adoption. The appeal is co-sponsored
The amendments proposed are to the preamble of the Resolution as follows:
PP 1 (bis) -- "Without prejudice to the ongoing IP related work in other competent international organizations"
PP4 (alt) -- "Understanding that determination of counterfeit items is the responsibility of relevant national authorities, in accordance with national legislation"
On the proposal of PP4 (alt), the concern is that the original version will shift responsibility of determining IP infringement from a state's judiciary to customs, although the latter may not have adequate competence in the matter.
The proponents are confident
that the appeal will go through.
They proposed to include in the list of prohibited articles: (1) a new para 2.1.2bis on "counterfeit and pirated articles"; (2) the word "other" in front of "articles the importation or circulation of which is prohibited in the country of destination"; and (3) a new paragraph 2.1.5bis on "where prohibited articles are identified, they shall be treated in accordance with the national legislation".
According to the proposal, the reasons for this amendment was to reduce the circulation of counterfeit and pirated articles between UPU members and show customs authorities that the UPU actively supports the WCO's current campaign to stamp out the production and circulation of pirated and counterfeit products, such as dangerous toys and electrical items, dangerous counterfeit medicines and brand goods, which do serious economic harm to domestic and international companies.
The proposal added that "with the introduction of the article, the sender will be obliged to take responsibility for the content of the item when she signs the CN 23 form".
In introducing the proposal,
The WCO strongly supported the proposal, adding that it will give a strong message to UPU to fight against counterfeit and pirated goods. It said that it has always been involved in the fight against counterfeiting and piracy particularly in the area of public health and security.
When the proposal was put to vote, there was agreement from 118 countries, with 3 countries opposing and 14 countries abstaining.
The third proposal before
the Congress was to amend Article 23 of the Convention and to include
a new paragraph 4 bis on sender's liability, i. e. "The sender
of a pirated or counterfeit good shall be fully liable, under the legislation
of the country of origin as well as that of the country of destination".
The proposal was moved by
The proposal was put to vote, and was rejected with 42 countries agreeing with the proposal, 53 countries disagreeing and 36 countries abstaining.
The Congress will close on
12 August. More than 2,000 delegates are attending the Congress, which
is the supreme authority of the
(Note: Future editions of the SUNS will publish more articles on the role of other international organizations in IP enforcement as part of the anti-counterfeiting agenda.) +