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Intellectual Property Law

: IPKat

Knights of the Post: IPR Enforcers?

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

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The 24th Universal Postal Congress of the Universal Postal Union (UPU) is currently underway in Geneva, 23 July to 12 August, with more than 2000 representatives of the 191 member states in attendance.

The UPU was established in 1874 by the Treaty of Berne, establishing the General Postal Union, when growing international trade created the need for simplification of international postal services. The UPU (as it was re-named in 1878) is the primary forum for its members to promote cooperation within the postal sector and the Congress is the supreme authority for the UPU, meeting every 4 years on legislative and broader strategic policy issues.

The UPU became a specialised agency of the United Nations, 1 July 1948, making its cooperation with other international bodies more significant and resulting in agreements and memoranda of understanding (MOU) with several UN agencies and other international organisations. One such MOU was agreed last year between the UPU and the World Customs Organization (WCO), one objective of which is to prevent the distribution of counterfeit, illegal and dangerous goods through the post.

At the current UPC, discussions of 1 August addressed the issue of counterfeit and pirated goods sent through the post resulting in three proposals, two of which are reported to have been adopted by vote. According to sources of the Third World Network (TWN), many countries (including developed countries) raised concerns during plenary discussion that national postal services were being inappropriately recruited to fight counterfeiting when they have neither the legal nor other expertise to do so. These concerns included reports of agencies being expected to determine whether products are counterfeit or violate national intellectual property laws.

Although the proposals are not yet available to the public, the TWN reports that these are:

Resolution 40 on counterfeit and pirated items sent through the post (adopted);
An amendment to the UPU Convention on the list of articles prohibited through the post (adopted); and
An amendment to the UPU Convention on sender's liability (rejected).

According to the TWN, these developments have been attributed largely to increased pressure from the WCO.

The WCO-UPU Contact Committee, together with the POC Customs Support Project Group, presented Resolution 40 to the Postal Operations Council (POC) for examination in January this year. At the discussion of the 24th UPC, the WCO is reported as stating that it would cooperate in providing appropriate training of postal administrations. Resolution 40 was adopted by 95 in favour, 22 against and 20 abstentions. However, the TWN reports that several countries have now filed an appeal to the plenary session, when the Resolution will come up for final adoption. This appeal is reportedly for the following amendments:

PP1 (bis) - Without prejudice to the ongoing IP related work in other competent international organizations

PP4 (alt) - Understanding that determination of counterfeit items is the responsiblity of relevant national authorities, in accordance with national legislation

The second amendment in particular is in reponse to the concern that the original text of the Resolution will actually give judicial powers (determining IP infringement) to an executive body.

The second proposal is for an amendment of Article 15 of the UPU Convention, as amended by the 23rd Bucharest Congress, and is said to be a demonstration of closer cooperation between the UPU and the WOC, which is reportedly giving strong support to the proposal. However, Canada, in refusing to support the proposal, is reported as noting that this amendment would demand expertise in intellectual property beyond that of postal employees and more appropriately within the remit of other authorities, including customs authorities. 118 countries voted in favour, with 3 against and 14 abstentions.

The third proposal was for an amendment of Article 23 to include a new paragraph (4bis) on sender's liability so as to introduce full liability under the legislation of the country of origin as well as the country of destination. The proposal was moved by France and supp

orted by the UK and Italy, but Canada (supported by Kazakhstan, NZ, China, US) raised issues as to the creation of extraterritorial liabilities and the lack of clarity as to the creation of criminal liability. 42 countries voted in favour, 53 against and 36 abstained.