Jordanian IPR Enforcement: Good on Interdiction,

UNCLAS SECTION 01 OF 03 AMMAN 002009

SIPDIS

STATE PASS USTR FOR NED SAUMS
USDOC FOR 4520/ITA/MAC/ONE/COBERG
STATE PASS USPTO FOR URBAN

E.O. 12958: N/A
TAGS: ETRD KIPR JO
SUBJECT: Jordanian IPR Enforcement: Good on Interdiction,
Weak on Prosecution

Ref: Amman 1233

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SUMMARY
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1. (u) The GOJ has made good progress implementing
Intellectual Property Rights (IPR) legislation in the last
two years. As a result, the share of pirated material in
the market has dropped considerably since 2000. Despite
this progress, though, the current system has some flaws.
There is a need to improve coordination between departments
and to improve the human and financial resources of
implementing bodies (notably the National Library). The
IPR legislation itself has some limitations that need
addressing as well, in particular the overlap between civil
and criminal law that allows most IPR violators to escape
serious punishment. We continue to work with a number of
GOJ agencies to encourage continued reform and improvement
of the IPR environment. End summary.

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What Works: Customs Interdiction Procedures
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2. (u) Current GOJ Customs procedure differentiates
between commercial shipments and personal items
accompanying travelers. Commercial shipments arriving at
any point of entry must be cleared at one of the main
customs clearing centers - the Queen Alia International
Airport (QAIA) and the Amman Customs House. Under current
practice, more than 20 copies of a single or multiple
titles (for a/v and software products) constitute
"commercial quantities." Personal a/v or software property
is collected by the customs house of the point of entry and
sent to the Amman Customs Clearing Center. The traveler is
given a receipt for redeeming his property in Amman.


3. (u) Based on our observations at the Syrian border
crossing points and the Amman Customs House, Jordanian
customs officials are fairly adept at spotting and
interdicting counterfeit goods. While they do not have a
"profile" developed for potential smugglers of pirated a/v
and software goods, their professional experience - and
periodic training from WIPO, USAID, and other organizations
- gives them a good sense for spotting potential importers
of such goods. However, due to the small size of such
products (hundreds can fit in a shoebox),it is extremely
difficult for customs officials to completely stop the flow
of pirated goods.


4. (u) Once IPR-related goods arrive at the Amman
Clearing Center, samples are sent to the Censorship Office
in the Ministry of Information, which inspects it to ensure
it does not contain "culturally or politically offensive"
material (i.e., in most cases, pornography or items
critical of the royal family). The Censorship Office does
not check for copyright infringements.


5. (u) In parallel to this process, the clearing center
assesses shipments for copyright infringements and informs
the National Library (NL) in writing of receipt of
questionable commercial shipments and any questionable
personal items exceeding 20 CD's per traveler. If the NL
concludes after inspecting the goods that they are pirated,
they inform Customs, which in turn informs the registered
authorized agents about the interdiction. The agent then
has eight days to file a legal case against the importer.
If the eight days pass without such an action from the
agent, or if there is no registered agent, then Customs
releases the pirated goods to the importer. (Note: This
system places most of the initial prosecutorial burden on
the registered agent. End note.)

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National Library Still Struggling to Exert Authority
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6. (u) The National Library is part of the Ministry
of Cultural Affairs. Its Director General, Ma'amoun
Talhouni, reports directly to the Minister of Cultural
Affairs. In addition to its role of monitoring and
registering copyrights, the Library has several functions
that dilute its resources allocated to IPR enforcement,
including archiving and repository functions for all
Jordanian intellectual property productions and GOJ
official documents, documenting national bibliographies,
and supervising public libraries. The NL functions are
spread over 9 departments, one of which is the Protection
of IPR Office. While the Library is responsible for
copyright enforcement related to printed materials, a/v and
software, other aspects of IPR are the responsibility of
other government departments. For example, the Ministry of
Industry and Trade is responsible for trademark and patent
enforcement, often in conjunction with other agencies (like
the Health Ministry for new drug registrations, e.g.).


7. (u) Current law entrusts the Library with monitoring
the market for pirated printed, a/v, and software goods.
Talhouni notes that the law limits the Library's authority
to monitoring and inspection of licensed shops only. The
Library is powerless to inspect or interdict street
venders, for example. Thus it is not uncommon for shop
owners to store pirated goods close to their place of
business but not physically inside it to avoid prosecution.


8. (u) The Library has only six IPR officers on staff to
conduct inspections of shops country-wide. These officers
are sometimes supported by local police forces at their
request. While this staff is dedicated and well-trained,
it faces many technical obstacles to effective monitoring
and interdiction. When a Library officer finds pirated
materials in a licensed shop, it confiscates the materials
and proceeds to legal action. However, since registered
agents are frequently unwilling to press charges against
violators for fear of alienating customers and losing
legitimate sales, much of the Library's work goes for
naught.


9. (u) At the same time, the technical process for
confiscating goods is cumbersome - officers must catalogue
every copy of a title they take, often by hand, to
facilitate return of the merchandise to the shopkeeper if
it turns out to be legitimate or the registered agent does
not prosecute. And shopkeepers often sell pirated product
only after-hours, when officers are not on duty to monitor
the shops.

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What Doesn't Work: Legislation, Prosecution
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10. (u) The Jordan Intellectual Property Association
(JIPA) reports a significant improvement in enforcement
action on copyright issues by the GOJ. According to their
statistics, in the year 2000 no CD's were confiscated,
1,782 were confiscated in 2001, and 37,084 in 2002. They
note also that the Library brought 6 copyright infringement
cases before the courts in 2000, compared to 149 in 2001
and 274 in 2002. A local law office specializing in IPR
similarly noted that while in 1995, 87% of all CD's on the
local market were pirated, the number dropped to 67% by

2002.


11. (u) Despite this improvement, though, most agents,
lawyers, and even enforcement bodies maintain that current
laws are not strong enough to fully deter violators. The
current legislation limits the jurisdiction of the Library
to licensed shops, does not allow Customs or the Library to
take legal action against violators absent a complaint by
the relevant authorized agent, and allows judges to reduce
FTA- and WTO-mandated sentences for violators, making fines
far less of a deterrent to selling unauthorized goods.


12. (u) Jordan does not have a special court dedicated to
adjudicating intellectual property cases. IPR lawyers
complain that courts may take several months, and sometimes
more than a year or two, to reach a verdict on IP related
complaints. And even when those complaints are
successfully prosecuted, they are frequently overruled on
appeal or by the Supreme Court, as appellate and Supreme
Court judges are less sensitized to the finer points of
Jordan's new IPR laws, and tend in any case to have more
sympathy for shop owners than registered agents.
Meanwhile, as court cases drag on, the defendant is usually
free to return to his shop, and often resumes sales of
unauthorized product immediately.


13. (u) Even cases that are ultimately successfully
prosecuted, sources say, make little or no dent on the
availability of illicit product. Private sector sources
note that judges tend to be lenient when issuing verdicts,
and often rely on clauses in the criminal and penal codes
to reduce penalties for IPR violations. Thus a guilty
party facing an initial penalty of JD 6,000 ($8,460) under
civil law will usually have his sentence dramatically
reduced to an insignificant amount, in some cases as low as
JD 20 ($28) by appellate court judges under the
"humanitarian relief" clause of the criminal code (Article
100),which gives the court the latitude to modify
sentences that would cause undue hardship on the
convicted's family. This is possible since although the IP
law is a civil law, it has a penal aspect to it in the form
of fine and/or imprisonment that allows judges to invoke
articles from otherwise irrelevant criminal or penal codes.
As a result, IPR violators go essentially unpunished,
paying off their fines through sales of additional illicit
product in a matter of hours.

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Fixing the System
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14. (u) Despite its shortcomings, Jordan's IPR regime is
lauded by international IPR watchers as a model for the
region. The GOJ remains willing and eager to improve its
protection of intellectual property rights, seeing a
stronger regime as an excellent marketing tool for
attracting knowledge-based investments into the kingdom.
Jordan is keen to build a "knowledge-based economy," and
thus should continue to respond favorably to any overtures
that would help it improve IPR protections.


15. (u) An AMIR-funded study of Jordan's IPR regime,
published on July 17, 2002, praised the work of the
National Library, and noted areas where additional
resources and training would help improve the Library's
ability to enforce IPR laws in Jordan. Using this report
as a starting point, we are working with the Library,
Customs, and the private sector to identify programs that
could be put to best use to improve capacity in the
government, including the courts, to police IPR violators.
In addition to training programs through USAID, we are
looking at ways to better use International Visitor (IV)
and guest speaker programs to heighten IPR awareness in
Jordan's government structure, the local business
community, and the press. For example, we plan to send a
group of publishers on an IV program next fiscal year,
during which they will be exposed to IPR issues in the U.S.


16. (u) We will also soon begin to look at IPR-related
legislation itself, with an eye toward improving the
foundation on which good IPR enforcement is based. This
could mean, inter alia, finding a way to deconflict
Jordan's civil and criminal laws so that decisions made in
one arena are not reversed on technicalities in another.
It could also mean looking at current enforcement laws to
find ways to broaden the scope of the Library's authority,
and to improve communications among various government
agencies involved in IPR enforcement. Ultimately, we may
also look at the feasibility of encouraging the GOJ to move
the copyright function out of the Library and put it, for
example, in the Trade Ministry, where it could be better
funded and staffed.
GNEHM