JORDAN IPR PROBLEMS AND SOLUTIONS: PART II - GAPS

UNCLAS SECTION 01 OF 03 AMMAN 009708

SIPDIS

SENSITIVE

STATE PLEASE PASS TO USTR
STATE FOR EB/TPP/IPE - A. ADAMO
STATE ALSO FOR NEA/ELA - M. ROSENSTOCK

E.O. 12958: N/A
TAGS: KIPR ETRD KTIA PGOV ECON JO
SUBJECT: JORDAN IPR PROBLEMS AND SOLUTIONS: PART II - GAPS
IN THE LEGAL-REGULATORY FRAMEWORK

REF: AMMAN 8330 AND PREVIOUS

SENSITIVE BUT UNCLASSIFIED. FOR USG USE ONLY. NOT FOR
INTERNET DISTRIBUTION.

THIS IS THE SECOND IN A SERIES OF CABLES ON INTELLECTUAL
PROPERTY RIGHTS IN JORDAN.


1. (SBU) SUMMARY: Jordan,s governmental infrastructure to
protect IPR is decent, but most observers agree that human
resource capacity building is a pressing need for that
infrastructure to function effectively. The Ministry of
Industry and Trade's Industrial Property Protection
Directorate, and the National Library within the Ministry of
Culture, are the two focal points for policies on patents,
trademarks and copyright. The Customs Department, police, an
anti-fraud unit, and the Jordan Institute of Standards and
Metrology (JISM) all play a role in IPR enforcement, as do
prosecutors and the judiciary. A cadre of Western-trained
lawyers who specialize in IPR are able to assert their
clients' rights; and the Jordan Intellectual Property
Association (JIPA) brings together a strong group of
stakeholders, including Jordan's sophisticated software
development community.


2. (SBU) Despite this network of IPR supporters and Jordan's
relative leadership on IPR in the region, the laws and
regulations underpinning IPR protection lack coherence, and
can lead to sub-optimal ad hoc solutions to commonly
recognized IPR protection problems. The passage of amendments
to key laws, and a better system of regulations and
administrative directives, could improve communication
between agencies, enhance enforcement efforts, and bring a
common judicial standard to civil and criminal cases in the
IPR field. The Ministry of Industry and Trade has formed two
committees to address IPR deficiencies, and the National
Library Director General is establishing a copyright
enforcement committee. Minister of Industry and Trade Sharif
Zu'bi has promised to press for stricter penalties for
infringement, and the GoJ is continuing an effective public
awareness campaign to support IPR enforcement. END SUMMARY.

High IPR Aspirations
--------------


3. (SBU) Jordan,s international IPR commitments span a wide
gamut: over the past two years, Jordan acceded to the WIPO
Copyright Treaty, the WIPO Performances and Phonograms
Treaty, the Patent Cooperation Treaty, and the Madrid
Agreement Concerning the International Registration of Marks.
In March, Jordan issued an amended Copyright Law. In the
Free Trade Agreement (FTA) with the U.S., IPR commitments
constitute 29 paragraphs, a quarter of the entire document.
The GoJ faces a serious task in meeting all its commitments
on patents, trademarks, copyright, plant varieties, and
special measures regarding regulated pharmaceuticals or
agricultural chemical products, and other IPR areas.


4. (SBU) Bringing together all the elements that implement
these IPR commitments is a challenge for the GoJ.
Coordinating the nine main Jordanian laws on IP, as well as
laws on criminal procedures, civil procedures, criminal
penalties, and customs is a major task, according to Tawfiq
Tabaa, a U.K.-educated IP lawyer practicing in Amman. Tabaa
successfully mounted the Business Software Alliance private
campaign against software pirates. He works with a team that
finds computer hardware suppliers who sell "free" software,
then notifies the National Library, which raids the shop
during the sale of pirated goods. The first step for the
plaintiff is to decide whether to file a complaint in
conjunction with a criminal case, go for a separate civil
case, or proceed with both cases, either separately or
together. Tabaa is satisfied with the "ex officio" seizure
powers granted by the copyright law - the National Library
can and does confiscate infringing material from any location
in the kingdom. However, he is concerned about delays in
reaching a judgment (usually over a year, and up to
three-and-a-half years if the defendant is aggressive),the
lack of communication by prosecutors, and the ineffectual
punishments meted out by judges; most penalties are no more
than a couple hundred Jordanian dinars - about USD $280 -
when the maximum fine is JD 6000.

Implementation Problems
--------------


5. (SBU) Tabaa's experience is illustrative of other
drawbacks of the current IPR system. Under the Customs Law,
Jordanian Customs may exercise "border measures" to retain
suspected counterfeits or other IP infringing items, but only
for eight days. Customs must attempt to inform the probable
right holder, who must then file a complaint within the eight
days; otherwise, in the absence of a complaint the materials
must be released by law. (Article 4, paragraph 26 of the
FTA, calls for "border measure actions ex officio, without
the need for a formal complaint by a private party or right
holder.") Customs also has difficulties dealing with the
flood of counterfeits into free zones, where Customs is
called on to value goods only if they are entered into the
local economy.


6. (SBU) Court rulings and legal incompatibilities also
reveal spottiness in the GoJ,s IPR system. When a prominent
international law firm filed a complaint against a product
counterfeiter under "unfair competition" laws, the higher
court eventually threw out the case because the plaintiff had
not registered the mark in Jordan. The ruling took no
account of the unfair competition complaint. IP lawyers note
that there are clear contradictions between trade secrets and
unfair competition laws. There are also serious unresolved
issues regarding pharmaceutical IPR protections, although the
relevant GoJ authorities have promised to work on these
issues (to be reported septel).

But Committees Considering Next Steps
--------------


7. (SBU) Under the FTA, Jordan was accorded a transition
period until December 2004 before being required to fully
implement FTA IPR provisions. GoJ officials are aware of
these obligations. At the Ministry of Industry and Trade,
Minister Sharif Zu'bi has appointed a committee - inviting
members from all of the key IPR enforcement agencies - to
examine how to upgrade and enforce patent and trademark laws
and regulations. A separate committee on 'ex officio' powers
examined the problem at the borders, and recommended that
such powers be granted to the Jordan Institute for Standards
and Metrology (JISM). Amendments reportedly will be required
to both the JISM Law and the Customs Law. NOTE: It remains
unclear whether GoJ Customs will surrender its mandate to
confiscate and retain counterfeited brand name products or
pirated goods. Customs may retain the power, and given its
larger presence at the border, the Customs staff or a
specially trained cadre should probably continue to screen
for fakes. The issue may remain unresolved until Parliament
passes the relevant amendments. Embassy has requested copies
of the proposed Customs amendments. END NOTE.


8. (SBU) At the National Library, Director General Mamoun
Talhouni is focusing on the IPR public awareness campaign
(reftel),including by giving public lectures on IPR
violations. Talhouni is now convinced that he also needs to
form a committee to review enforcement of copyright laws. He
plans to include the police (which accompanies members of the
six-strong NL copyright enforcement team on raids),Customs,
the Judicial Council, and the Anti-Fraud Unit in the GoJ
intelligence service, as well as JIPA. Talhouni believes
that newly-installed Minister of Culture Adel Tweisi will
support his efforts. He will recommend more training for the
judiciary, among other initiatives.

USAID Gap Analysis; More Steps Taken
--------------


9. (SBU) Consultants associated with USAID/Jordan,s
Achievement of Market-Friendly Initiatives and Results (AMIR)
Program will are conducting a thorough gap analysis of
Jordan's major international IPR protection commitments
versus the laws, regulations and directives currently on the
books and will submit their report by mid-January. Jordanian
counterparts are keenly interested in learning the results of
this study; members of the MOIT and National Library
committees will study the report closely. (COMMENT: We
expect them to act on the results, as well. END COMMENT.)


10. (SBU) In a sign of how the GoJ plans to fill the gaps in
its IPR legal-regulatory framework, Minister Zu'bi told
Econ/C December 8 he was shocked to learn from the National
Library DG that judges were handing out 20 JD fines for
copyright infringement, resorting to criminal penalty laws
and avoiding the Copyright Law fines of up to 6000 JD.
Zu,bi told Econ/C he would be requesting that the Judicial
Council issue guidance for judges on penalties under the
Copyright Law.


11. (SBU) COMMENT: 2006 looks to be a year of significant
improvements for IPR protection in Jordan. All relevant
government bodies are engaged in studying the problems and
looking for solutions. The AMIR consultants conducting the
gap analysis have a strong reputation in intellectual
property law. We are impressed by Minister Zu'bi's
dedication, and believe that he and others want to project a
Jordan where investors can be assured their intellectual
property interests are fully protected.


12. (U) Next installment on IPR: pharmaceuticals.

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