(a) General activities of the WCO€¦ · The WCO has promulgated model customs legislation designed to assist ... intellectual property rights legislation for the first time and

Best Practices of World Customs Organization in Relation to Border Enforcement6

rior to 1995 the various national customs authorities were members of the Customs Coordination Council (CCC), an inter-agency body which provided a forum for the discussion of mutual concerns. With the incep-tion of the TRIPS Agreement the CCC became renamed as the World Customs Organization (WCO). It now comprises more than 150 member customs administrations. Commencing on an informal basis with busi-ness funding, the WCO has established an IPR Division and was an observer at the inaugural meeting of the TRIPS Council.

In 1991 the G7 Group of Nations recommended that the CCC should develop an Action Plan to strengthen co-operation between carriers and the enforcement authorities. The recommendation led directly to the WCO “ACTION/DEFIS” programme (Alliance of Customs and Trade for the Interdiction of Narcotics) a Customs/Trade partnership which aimedinitially at the interdiction of illicit narcotic drugs, but which has been gradually extended to embrace other forms of border related crime, including IPR violations.

(a) General activities of the WCO

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51Copyright © March 2007 ECAP II European Commission/European Patent Office.

Under this programme 24 Memoranda of Understanding (MOUs) have been signed with international trade associations. Important Memo-randa, dealing specifically with IPR issues, have been concluded between the CCC and the International Federation of Phonographic Institute (IFPI) in 1988 and by the WCO with the umbrella organization of the mechanical copyright organizations (BIEM) in 1997 and the Motion Picture Association (MPA) in 1997. In November 1998 a MOU was signed with INTERPOL providing a framework for future international co-operation. The WCO has promulgated model customs legislation designed to assist members in the implementation of the TRIPS provisions.24 The model is designed to provide Customs Administrations with a guide to best practice. In particular it is intended for those Customs Adminis-trations implementing intellectual property rights legislation for the first time and those conducting legislative reviews or reforms. The Model Law is based on the border control provisions of the TRIPS Agreement. It contains provisions dealing with:

• Applications for Customs Assistance• The duration of Customs surveillance over suspected infringements• The provision of information, including evidence of rights ownership and the grounds for suspicion• Indemnity and security• Suspension of clearance and time period of suspension• Notification to the rights holder• Examination of the goods by the rights holder and the provision of information• Compensation in the case of wrongful detention of goods• Ex-Officio Action; Customs working on their own initiative, without application• Powers of suspension of clearance and disposal of counterfeit goods

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The WCO assists its member administrations to put in place effective detection programmes through the sharing of information, the development of model legislation and by encouraging the establishment of close working partnership with buness interests. This assists business governments carry out their responsibilities under the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which specifically identifies the importance of border measures in controlling illicit counterfeit trade. In a related initiative, the WCO has also recently established an international Task Force to secure the international trade supply chain from cross border crime and international terrorism. Because counter-feit goods cross international borders, sometimes several times, the Task Force is exploring ways in which Customs administrations can use technology, information systems and partnership with trade to enable them to identify and seize illicit consignments of these and other high-risk goods. An important aspect of the work that is being done is to deter-mine ways in which the operational capacity of customs administrations in developing countries can be enhanced.

To address issues of counterfeiting and piracy, the WCO has established the Intellectual Property Rights Strategic Group as a joint

Map showing the 159 WCO Member Countries and Regional Intelligence Offices

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venture between the WCO and a number of leading trading corpo-rations in a variety of sectors, including cigarettes, branded goods, software and recorded music.

Under the auspices of the IPR Strategic Group, the WCO has under-taken a number of initiatives to combat counterfeiting and piracy: • Established the European Anti-Counterfeiting Network database known as REACT. This password-protected database is intended to assist front-line customs officers in the identification of counterfeit and pirated products. • Developed model legislation to provide customs officers with suffi-cient authority to deal with counterfeiting and piracy issues.• Conducted training seminars in conjunction with European Anti-Counterfeiting Network and/or the European Patent Office. Provided on-line information on how businesses can apply for customs pro-tection against suspected counterfeited or pirated goods. The WCO signed a Memorandum of Understanding in 1998 with Interpol regarding increased co-operation in the areas of counterfeiting and piracy.• Convened the First Global Congress on Combating Counterfeiting in Brussels in 2004 to raising awareness of the counterfeit and at which the Global Congress Steering Committee was established to improve levels of cooperation among international authorities and the private sector.


The WCO web site at www.wcoipr.org provides WCO member administrations and WCO business sponsors with the following IPR services: • A world directory of Customs Legislation; • On-line applications for Customs protection; • A full listing of contact points; • Relevant presentations and published articles • A hyperlink to the “REACT” internet sits which helps front-line officers to identify infringing goods;

The WCO aims to assist Member Administrations to improve their efficiency and effectiveness in all aspects of their work. This allows national Customs services to develop their infrastructure and improve-ment plans at their own pace. Technical assistance, including training, fellowship programmes, practical exercises, IPR management consultant services, are offered to WCO Member Administration through the “WCO IPR Technical Assistance Group”.

(b) WCO Strategic Plan 2003/2004 – 2005/2006

Among the issues identified by the WCO in guiding the preparation of 2003/04-2005/06 Strategic Plan, were:

• Increased use of new information and communication technologies;• Greater policy and procedural requirements directly associated with meeting international commitments and standards;• Proliferation of regional trading agreements which significantly increase the complexity of administering border formalities and controls;• Heightened awareness of the need for Customs administrations to strengthen border controls to protect society from a range of social and national security concerns, including international terrorism, transnation-al organised crime, drug trafficking and revenue fraud, while ensuring continued improvements in trade facilitation;


• Increased realisation of the importance of Customs as a key vehicle for economic growth and social development, and the resultant need for governments and donor organisations to invest in sustainable capacity building activities;

Consequently the WCO’s priorities for 2003/2004 included a continued focus on improving the WCO’s programmes in the area of intellectual property rights.

(c) WCO Asia Pacific Secretariat

A new Secretariat has recently been set up in the Asia/Pacific region, under the WCO Intellectual Property Rights (IPR) Strategic Group (http://www.wcoipr.org), with the aim of combating IPR crime more effectively at the border in that region. Its purpose is to facilitate liaison and the exchange of information between industry and Customs administrations, and to lead the co-ordination of IPR training and technical assistance in the region.

(d) WCO Regional Strategic Plan 2005-2006

Taking into account the WCO’s mission: “to enhance the efficien-cy and effectiveness of Member Customs administrations, thereby assisting them to contribute successfully to national development goals, particularly in the areas of trade facilitation, revenue collection, community protection and national security”, The Members of the Asia Pacific Region of the WCO agree in the Asia Pacific Region Regional Strategic Plan (RSP) 2005-2006: “to enhance their effectiveness and efficiency through mutual co-operation, capacity building, research, exchange and sharing of information as well as implementing interna-tional best practices.”

Capacity Building

A WCO Asia Pacific Regional Office for Capacity Building (ROCB) has been established in Bangkok as a

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coordination point between each regional Member and donors. Furthermore, five Regional Training Centers were established in China, Hong Kong, India, Japan and Malaysia. Promotion of Customs capacitybuilding is expected by close cooperation with ROCB and Regional Training Centres.

The strategic objectives of this part of the RSP are: • To assist regional members with development and acquisition of the skills, competencies, tools, processes and resources needed to improve the capacity of their administration to achieve their objectives. • Effective management, implementation, monitoring and evaluation of capacity building activities in the region. • Greater co-ordination in activities and approaches between regional members and a range of national, regional and international donors and relevant regional trade and economic groupings will be developed.

Co-operation and Exchange of Information

The RSP envisages close co-operation between regional members to exchange information through the Regional Intelligence Liaison Office of the Asia and the Pacific (RILO A/P) as well as mutual administrative assistance.

The strategic objectives of this part of the plan are that:

• Regional Members will contribute to enhanced security and facilitation of the international trade supply chain. • Regional co-operation on enforcement issues will contribute to a secure national, regional and global environment through the effective combat-ing of Customs offences and trans-national crime. • Improved information exchange between regional Members will enhance Customs enforcement efforts both nationally and regionally while ensuring the continued facilitation of international trade. • Regional Members will minimise barriers to trade and travel, and facili-tate the lawful movement of goods and people across borders, through


the consistent and fair implementation and application of international Customs and trade instruments.

The priorities of this part of the plan include:

• To further enhance co-operation of regional Members on the protec-tion of Intellectual Property Rights (IPR). • To promote co-operation and exchange of intelligence via the RILO A/P to strengthen the enforcement capabilities of regional Members.

Research and Experience Sharing

Research and analysis is one of the key result areas of the WCO. In meeting new and existing challenges, the RSP identifies the impor-tance that regional Members are able to benefit from the experience of other administrations and organisations. Sharing experience and best practices on all Customs matters at bilateral and regional level is a key mechanism to facilitate this.

Communication and Partnership

The goal of enhanced communication within the region has already been significantly advanced and will continue to be a priority of the RSP. Enhancement of communication between government agencies, regions and with other international organisations is intended to foster greater co-operation, and allow regional Members to better undertake their roles.

The priorities of this part of the RSP include:

• To maintain and update the regional website, develop a database of information of Member administrations on the website, and publish and circulate regional newsletters to improve communication between Members. • To further promote co-operation with government agencies, the business sector and other bodies and organisations.


• To encourage participation of regional Members in the WTO trade facilitation negotiation process. • To maintain the dynamism of the Asia Pacific Region in the WCO.

(e) The WCO Business IPR partnership

The WCO together with, Hong Kong Customs, Japanese Customs and key business sponsors have organised a series of initiatives to enhance the enforcement of IPR in the Asia and Pacific region. Included in these initiatives are regional seminars delivered by business experts describing how Customs staff can identify suspect counterfeit consignments from import, export and transit documentation and from electronic informa-tion. Rights holders have also shared practical information on trends and methods adopted by the traffickers in counterfeit products and provided practical advice on how to identify the genuine article from fake prod-ucts.

The use of intelligence and commercial information will be covered and a link between this initiative and the work already underway by the WCO Regional Intelligence Office for Asia and Pacific (RILO) will be demonstrated. The initiative also proposes fellowship programmes for a limited number of Customs officials to receive practical experience in the Customs environment in another WCO member country.

A Regional Forum on Protection of Intellectual Property Rights, in the context of this programme, was held in Shanghai in November 2004 discussion on the impact of counterfeiting and piracy, countermeasures employed, the constraints and development of IPR protection, and enforcement cooperation between Customs, other agencies and the private sector. The Shanghai Forum recommended:

Legislation and Procedures:1. Improving understanding at the political and policy-making level of the serious consequences of the counterfeiting trade and the vital role that enforcement authorities in the region can play in fighting IP crime.


2. Encouraging countries to modernise their Customs legislation on border measures for IP protection, taking into account the WCO Model Law (published on the website www.wcoipr.org) to further enhance anti-counterfeit capabilities, specifically by:- Reducing or eliminating the requirement for IP owners to pay bonds for counterfeiting cases;- Facilitating further simplification of procedures for obtaining court orders;- Empowering customs officials to conduct in-depth investigations into counterfeiting and piracy cases.

3. Encouraging Customs with the assistance of right owners where appropriate to transfer more cases to the police and other competent authorities for investigation and criminal prosecutions.

4. Implementing protection for industrial products design and patents for inventions similar to the protection currently offered for trademarks.

Risk Analysis, Information Sharing and Communication5. Establishing channels for strengthening exchange of information between the customs administrations of the Asia-Pacific region and other foreign customs administrations to effectively share information concerning the infringing trade in counterfeit goods.

6. Expanding and promoting understanding, information-sharing and cooperation between customs, other enforcement agencies and the private sector to effectively facilitate combating IPR abuses.

7. Establishing a regular regional IPR forum to ensure that the relationship between business, customs and other enforcement authorities continues to develop.

8. Enhancing the role of the WCO Regional Intelligence Liaison Office (RILO) in the Asia/Pacific region to include coordinating customs information and intelligence gathering on counterfeiting and piracy and providing regular analyses and reports.


9. Designing protocols on the exchange of IPR information between customs authorities and rights holders and vice versa;

Capacity Building10. Providing advanced communication tools to customs to facilitate investigations; 11. Intensifying enforcement capabilities and sanctions particularly with respect to the enormous illegal profits and relatively low risk costs associated with the counterfeiting and piracy trade;

12. Developing a comprehensive programme of IPR technical assistance and capacity building for enforcement authorities including the exploration of funding sources;

13. Conducting a WCO exercise in the Asia-Pacific region to identify and intercept counterfeit and pirate products in containers. The WCO will manage the arrangements for sharing information via the Customs Enforcement Network;

Internationally:1. Conducting a meeting of embassy attaches in Brussels as a means of exploring opportunities to increase political and policy-maker awareness of the serious consequences of the trade in counterfeit products;

2. Developing the WCO’s e-learning program on counterfeiting to provide national customs administrations with the latest strategies and knowledge on combating the illegal trade;

3. Sharing the results, as appropriate, of Interpol’s intellectual property crimes exercise, Operation Jupiter, in South America and identifying other potential countries where Operation Jupiter could be run;

4. Increasing the number of activities of the World Intellectual Property Organization to facilitate the exchange of information between law enforcement agencies and to render advice and assistance to


Governments on the protection and enforcement of intellectual property rights including by developing and making use of practical training scenarios;

5. Securing private and public sector financial support for the OECDto finalise its plans to conduct an extensive research project onthe global counterfeit trade;

6. Establishing a study group to investigate and recommend how enforcement authorities and business can best harness the new inspection and security technologies to improve IPR border control capabilities.

The Shanghai Forum noted the plans for a private sector summit in 2005 to identify anti-counterfeit alignment strategies with public sector administrations and agencies and the initiative of the WCO IPR Strategic Group in establishing a 2005 IPR technical assistance programme in Asia Pacific and its intention to undertake a pilot IPR programme with Royal Malaysian Customs using WCO capacity building methodologies.


Documents

(a) General activities of the WCO€¦ · The WCO has promulgated model customs legislation designed to assist ... intellectual property rights legislation for the first time and