Identifier
Created
Classification
Origin
04TEGUCIGALPA405
2004-02-24 18:02:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Tegucigalpa
Cable title:  

HONDURAS: INPUT FOR 2004 SPECIAL 301 REVIEW

Tags:  ECON ETRD KIPR HO 
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UNCLAS SECTION 01 OF 02 TEGUCIGALPA 000405 

SIPDIS

SENSITIVE

DEPT FOR EB/IPC:SWilson
DEPT PLEASE PASS TO USTR FOR BPeck
DEPT PLEASE PASS TO DOC FOR KSchlegelmilch
DEPT PLEASE PASS TO USPTO FOR JUrban/DLashley-Johnson
DEPT PLEASE PASS TO LOC FOR STepp

E.O. 12958: N/A
TAGS: ECON ETRD KIPR HO
SUBJECT: HONDURAS: INPUT FOR 2004 SPECIAL 301 REVIEW

REF: A) STATE 29551 B) STATE 38126

UNCLAS SECTION 01 OF 02 TEGUCIGALPA 000405

SIPDIS

SENSITIVE

DEPT FOR EB/IPC:SWilson
DEPT PLEASE PASS TO USTR FOR BPeck
DEPT PLEASE PASS TO DOC FOR KSchlegelmilch
DEPT PLEASE PASS TO USPTO FOR JUrban/DLashley-Johnson
DEPT PLEASE PASS TO LOC FOR STepp

E.O. 12958: N/A
TAGS: ECON ETRD KIPR HO
SUBJECT: HONDURAS: INPUT FOR 2004 SPECIAL 301 REVIEW

REF: A) STATE 29551 B) STATE 38126


1. (SBU) Summary and Comment: Honduran legislation regarding
Intellectual Property Rights (IPR) is largely in compliance with
the WTO Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPs). However, Honduran authorities lack the
personnel and expertise necessary to wage a truly effective
campaign against copyright or other IPR violations. There have
been no significant moves in the past year by the Government of
Honduras (GOH) to either strengthen or weaken the protection of
IPR in Honduras. Embassy therefore recommends that Honduras
remain off the Special 301 watch list. End Summary and Comment.


2. (U) The responses below are keyed to paragraph 17 of Ref A.

--------------
A) Optical Media Piracy (CDs, VCDs, DVDs)
--------------


3. (U) Although Honduras has yet to experience large-scale in-
country optical pirating, pirated goods are imported from
neighboring countries, and the piracy of books, sound and video
recordings, compact discs and computer software is still
widespread. Confiscation has been erratic, and usually involves
minor seizures of compact discs. Success in controlling optical
piracy rests primarily on the GOH's ability to effectively
implement its current laws, rather than a need for further
legislation.

--------------
B) Use/Procurement of Government Software
--------------


4. (U) The number of government agencies which are using legally
licensed software increased during 2003, largely due to private
sector efforts to persuade government entities to obtain legal
license to the software that they were already using. Several
government agencies continue to use illegally-procured software,
or to use multiple copies based on a single legal purchase,
primarily due to stringent budget constraints. U.S. software
companies, working closely with Honduran authorities and the U.S.
Embassy, hope to whittle down the number of non-compliant
ministries in the coming months.

-------------- --
C) TRIPs Compliance and Other IP-Related Issues
-------------- --


5. (U) No new TRIPs-related legislation was introduced or passed
by the Honduran Congress in 2003, nor were any amendments to
existing legislation introduced or passed.


6. (U) Honduras largely complied with the WTO Agreement on Trade
Related Aspects of Intellectual Property Rights (TRIPs) by the
January 1, 2000, deadline. In 1999, the Honduran Congress passed
two laws to correct deficiencies in previous legislation
concerning copyrights, patents and trademarks. The Copyright Law
added more than 20 different criminal offenses related to
copyright infringement and establishes fines and suspension of
services that can be levied against offenders. The Law of
Industrial Property, Decree 12-99E, covers both trademarks and
patents, and includes modifications on patent protection for
pharmaceuticals, extending the term from seventeen to twenty
years to meet international standards. The term for cancellation
of a trademark for lack of use was extended from one year to
three years. To be protected under Honduran law, patents and
trademarks must be registered with the Ministry of Industry and
Trade.


7. (U) As soon as two new laws governing the designs of
integrated circuits and plant variety protection are approved by
the National Congress, Honduras will be in complete compliance
with the TRIPs Agreement. Post has emphasized the importance of
adoption of these two laws to the Minister of Industry and Trade
and the Director of the IPR Office within that Ministry. GOH
officials assert that the two laws will be passed during 2004.


8. (U) Honduras became a member of the World Intellectual
Property Organization (WIPO) in 1983, ratified the Paris
Convention for the Protection of Industrial Property in 1994, and
became party to both the WIPO Copyright Treaty and the WIPO
Performances and Phonograms Treaty in 2002. Honduras and the
U.S. initialed a Bilateral Intellectual Property Rights (IPR)
Agreement in March 1999, but substantive issues arose during the
language conformity process. Instead, recent efforts to push the
GOH for additional IPR commitments have been pursued as part of
the negotiations for a U.S.-Central America Free Trade Agreement
(CAFTA). If ratified, CAFTA should significantly improve the
level of IPR protection in the region. Approval of CAFTA by the
Honduran Congress in 2004 is considered very likely.

--------------
D) Enforcement
--------------


9. (U) Honduran Copyright Law specifies three different avenues
in the prosecution of copyright infringement cases:
administrative, civil and criminal. After confiscating pirated
goods, the GOH can file an administrative case that may result in
a fine. However, the law requires companies whose rights have
been violated to file civil and criminal charges. Few U.S.
companies have asserted their right to file either a civil or
criminal case, leaving the resource-strapped prosecutor's office
(Ministerio Publico) responsible for the lawsuits. As a result,
many cases are not tried to the full extent of the law.


10. (U) Enforcement of the copyright law relies largely on
periodic sweeps in the market and on investigations carried out
after an accusation has been made. The GOH Customs and Tax
Authority (DEI) is responsible for impeding the flow of illegal
goods into Honduras. IPR officials have commented in the past
that police and DEI officials lack the skills and resources to
identify and control the flow of pirated products.


11. (U) The protection of data exclusivity by the GOH is an issue
that has been raised by some U.S. companies. In 2002, a U.S.
pharmaceutical company complained that the Ministry of Health, in
approving a competing company's pharmaceutical product, did not
respect their data exclusivity rights as guaranteed under article
39 of the WTO TRIPs agreement and article 77 of Honduras'
Industrial Property Law. (Honduran law provides five-year
exclusive use of data provided in support of registering
pharmaceutical products.) The Ministry of Health approved the
competing pharmaceutical product despite communication from
Honduras' IPR Division that the U.S. company's research and data
were protected under Honduran law. The U.S. company argues that
in order for the competing product to be legally registered with
the Ministry of Health, the company needs to provide the research
and data to support their application. When a similar situation
arose with a separate application in 2003, the Ministry of Health
recognized that the competing company's product was a copy of the
U.S. company's protected product, and did not approve the
competing company's application.


12. (U) Some U.S. companies have expressed concern that attempts
to prosecute computer software infringement cases have been met
with inadequate support by officials in the Ministry of Industry
and Trade's IPR Division and the Attorney General's office.


13. (U) The Ministry of Industry and Trade makes good faith
efforts to respond to complaints about satellite piracy, and the
telecom regulatory agency, CONATEL, checks closely on compliance
with anti-piracy rules before extending cable TV licenses.
However, the ministries need more staff to ensure full
enforcement. In 2003, the Embassy received a complaint from one
U.S. company which argued that the Ministry of Industry and
Trade's IPR Division appeared to be singling out the U.S. company
for investigations of satellite piracy, while ignoring alleged
violations on the part of the U.S. company's Honduran rival.
Embassy officials have discussed the issue with appropriate
Ministry and IPR officials, urging a strong and balanced approach
to investigations of all IPR violations.

Palmer