KUWAIT: THREE IPR SEMINARS IN THREE WEEKS

UNCLAS SECTION 01 OF 05 KUWAIT 001965 SIPDIS SENSITIVE STATE PLEASE PASS USTR JFENNERTY E.O. 12958: N/A TAGS: ETRD ECON PREL KIPR KU SUBJECT: KUWAIT: THREE IPR SEMINARS IN THREE WEEKS REF: A. KUWAIT 36 ¶B. KUWAIT 790 ¶C. 04 KUWAIT 4217 ¶D. 04 KUWAIT 3828 This cable is sensitive but unclassified; please protect accordingly. Not for internet distribution. ¶1. (SBU) Summary and Comment. After their country was strongly criticized this past year for its poor intellectual property rights (IPR) record, Kuwaitis from inside and outside the government organized three different IPR seminars in late April and early May. The first event, an April 25 roundtable organized by the Kuwait Bar Association, brought together four discussants to debate the International Intellectual Property Alliance's (IIPA) 2005 Special 301 submission on Kuwait. Most participants agreed that Kuwait's 1999 copyright law is inadequate and that the penalties for convicted pirates are insufficient. They also spoke about losses the Kuwaiti economy sustains as a result of infringement. One speaker, however, defended Kuwait's copyright law and penalty regime, and claimed that Kuwait does not need to join the Berne or Rome Conventions because they are subsumed within TRIPs (which, as an obligatory international protocol, is automatically considered part of Kuwaiti domestic law, he contended). ¶2. (SBU) On May 2-4, Kuwait Customs held an internal, three-day IPR training session for 60 of its employees. (Note. This was training not in direct response to the Special 301 decision for 2005, but was as part of the agency's ongoing, regular program to combat IPR crimes. End Note.) The seminar featured presentations by representatives of international companies, who educated Customs employees about how to detect counterfeits of their products. As a result of the training Customs received from General Motors (GM),they determined that an entire recent shipment of auto parts from Saudi Arabia were fakes, and GM learned about a previously unknown factory counterfeiting its products. ¶3. (SBU) Finally, the Ministry of Information and Kuwait Chamber of Commerce and Industry organized a two-day seminar on IPR on May 9-10 that included speakers from the government, private sector and academia. Again, most participants agreed that Kuwait's IP laws are inadequate, and that more training and interministerial cooperation are necessary. Of special note, however, was a speaker from the 
Ministry of Commerce and Industry's Patents and Trademarks Department, who asserted that intellectual property rights holders share some of the blame for Kuwait's lousy IP record because their products are too expensive, "forcing" consumers to buy cheaper knock-offs. ¶4. (SBU) During the conference's second day, which was devoted to the private sector's role in upholding IPR, a speaker from the Kuwait Bar Association's IPR committee was highly critical of the Information Ministry's Experts Department, which she said has no IP experts and no standards for determining piracy. As a result, she said, the courts do not trust the experts' opinions when assessing an IP case. She also scolded the GOK for arguing with the veracity of international reports about Kuwait's IP shortfalls and failing to enact their recommendations. A representative from the Ministry of Information's Artistic Works Department concluded the seminar with a somewhat defensive presentation on the ministry's achievements. Of note, however, were the statistics that she presented showing that within a 20 day period starting in mid-April, the ministry conducted raids that led to the confiscation of more pirated goods than the ministry had seized in all of 2004. ¶5. (SBU) Comment. The negative fall-out from the Special 301 process has evidently gotten the Kuwaitis' attention, and raised the profile of IPR. Although the audience at the Ministry of Information's seminar was tiny, the conference was not well organized, and at times it seemed as though Information was simply going through the motions to prove that it is doing something about IPR, it did provide an interesting range of opinion from government, academia and the private sector. The Bar Association, in translating the IIPA Special 301 submission into Arabic, distributing it widely, and openly criticizing the GOK for rebuffing its offer to cooperate on IPR, has ratcheted up the pressure significantly. We are hopeful that this, combined with the need for IP improvement to advance the TIFA process, will convince the GOK to launch a coordinated, sustained and serious campaign (following on Kuwait Customs' lead) to better its IP record in 2005. End Summary and Comment. Kuwait Bar Association Discusses Special 301 -------------- ¶6. (SBU) After being strongly criticized this past year for Kuwait's poor intellectual property rights (IPR) record, Kuwaitis from inside and outside the government organized three different IPR seminars in late April and early May. The first event, an April 25 roundtable organized by the Kuwait Bar Association, brought together four discussants to debate the International Intellectual Property Alliance's (IIPA) 2005 Special 301 submission on Kuwait. The Bar, which paid to have the report translated in full into Arabic, had distributed the report widely to its membership in advance of the seminar. Several members commented to econoff that they were "shocked" to read how poorly Kuwait had fared in this "harsh" report; they did not, however, disagree with its substance. ¶7. (SBU) The forum brought together Ahmad Al-Mulaifi, a liberal nationalist member of Parliament (MP); the Ministry of Information,s outgoing Legal Adviser and IPR Committee Chief Judge Khaled Al-Hendi; Dr Fayez Al-Kanderi, a civil law professor at Kuwait University,s law school (Al-Kanderi will soon be replacing Al-Hendi, who is being recalled to the bench, at the Ministry of Information); and Sami Al-Anzy, Microsoft,s compliance manager for Kuwait. The participants spoke to a full house of about 40 audience members; the seminar was covered widely by the print and broadcast media. ¶8. (SBU) MP Al-Mulaifi began by offering an overview of Kuwait,s 1999 copyright law, which he readily admitted is inadequate and does not protect new, innovative technologies (particularly in the information technology sector). Al-Mulaifi strongly advocated increasing the low maximum penalties for convicted pirates (a fine of 500 Kuwaiti dinar, or about $1700, and up to one year in jail; the courts have never, however, imposed a jail sentence). He also noted that while IP crimes are extremely profitable to pirates, they are equally destructive to the Kuwaiti economy and potentially harmful to consumers' health and safety. ¶9. (SBU) During his presentation, Al-Hendi offered a neutral reading of the history of the Special 301 process, and described its importance to the U.S.-Kuwait Trade and Investment Framework Agreement (TIFA) discussions. Al-Hendi, who is a member of Kuwait,s TIFA team, did not argue with Kuwait,s placement on the Priority Watchlist, which he said IIPA had recommended based on (among other things) Kuwait,s insufficient legal protection for IPR. Like Al-Mulaifi, Al-Hendi commented on the economic harm that rampant piracy inflicts, and noted that this must be rectified for Kuwait to attract serious investment. Al-Anzy's presentation likewise focused on Kuwait's economic losses that stem from IP infringement. Yet rather than dwell on what Kuwait is doing wrong, Al-Anzy reframed the argument to show how Kuwait would benefit from greater IP protection. ¶10. (SBU) Unlike the other three speakers, Al-Kandari defended Kuwait,s copyright law (which the U.S. considers to be inconsistent with TRIPs requirements). According to him, the law has provisions that can be adapted to guard against new types of IP crimes. He also contended that the copyright law should not be seen in isolation from other Kuwaiti laws, and he criticized IIPA for, in his view, not being familiar with the legal system in Kuwait. He said that while he is amenable to increasing the financial penalty for piracy, he does not agree with increasing the maximum one-year prison sentence. Furthermore, he claimed that Kuwait does not need to join the Berne or Rome Conventions, which he said are subsumed within TRIPs. Since Kuwait is a member of the WTO and therefore obliged to uphold TRIPs, he contended, these conventions' provisions are considered part of Kuwaiti domestic law. (Note. This interpretation is at odds with that of the current Ministry of Information Legal Advisor, who was actively pushing for Kuwait to join Berne and Rome. End Note.) ¶11. (SBU) Following the seminar, Microsoft's Al-Anzy (please protect) commented to econoff that because Al-Kandari is an academic who is outside the government, he (Al-Kandari) looks at piracy from a theoretical perspective and does not recognize the extent of Kuwait's problem. Al-Azny also believes that Al-Kandari does not yet grasp the larger implications of poor IP protection, namely that Kuwait will not be able to liberalize its market until it increases IP protection. Still, he is hopeful that once Al-Kandari assumes his position as the Minister of Information's legal adviser, he will come around. Kuwait Customs: Leading the Way in the GOK -------------- ¶12. (SBU) On May 2-4, Kuwait Customs held an internal, three-day IPR training session for 60 of its employees. (Note. This was training not in direct response to the Special 301 decision for 2005, but was as part of the agency's ongoing, regular program to combat IP crimes. End Note.) Customs has been the pioneer agency within the GOK on IP enforcement, and continues to be the cornerstone of the GOK's IPR program. (Note. The U.S. Customs Liaison Officer has played an active, key role in pushing Kuwait Customs to fight IP violations. End Note.) The Kuwait Customs IPR team opened the conference by outlining the team's role and discussing the ways in which they can assist Customs inspectors in determining whether goods are infringing. Customs then turned the conference over to representatives of international companies, who educated Customs employees about how to detect counterfeits of their products. Chanel and Louis Vuitton officials, whose high-end merchandise is frequently copied, conducted an extensive training session on their goods' distinguishing features. They also spoke about possible concealment methods that pirates use to export fradulent goods. ¶13. (SBU) Several presenters spoke about the threat that counterfeit products pose to consumers. For example, the French company Schneider Electric offered information about the danger of counterfeit electronics. General Motors (GM) and Toyota flew trainers into Kuwait to teach Customs how to detect counterfeit auto parts. (Note. This has become a high-profile issue lately, with the Ministry of Commerce and Industry recently carrying out large raids on shops selling fake auto parts. End Note.) The session also demonstrated the benefits that can accrue to both the trainers and the trainees. Upon learning about the auto parts that GM manufactures legitimately in Saudi Arabia, one Kuwait Customs inspector commented that Customs had just cleared a shipment of a different GM car part that had been manufactured in Saudi Arabia. Because of what they learned from GM, Customs now knows that those items were counterfeits. At the same time, GM now can trace (and hopefully shut down) a new source of fake auto parts, based on what they learned from the seminar participants. ¶14. (SBU) According to the IPR team members, most of the audience was very attentive and had good questions and comments throughout. Customs plans to hold similar training sessions every 2-3 months. Ministry of Information Organizes 1st IP Seminar -------------- --- ¶15. (SBU) At a two-day seminar organized by the Ministry of Information and the Kuwait Chamber of Commerce and Industry on May 9-10, speakers from the government, private sector and academia spoke about different aspects of intellectual property rights. Although the new Minister of Information was scheduled to open the two-day conference, his deputy came in his stead and delivered the Minister's speech for him. ¶16. (SBU) Manal Al-Baghdadi, the Ministry of Information,s Legal Controller within the Intellectual Property Department, opened the May 9 session, which was centered on the government's role in protecting IPR. She noted that the Undersecretary has begun requiring her department to submit quarterly reports on its IPR actions, and said that the number of inspectors has been increased from 24 to 30. Al-Baghdadi contended that protecting IP is critical to encouraging local inventors to continue innovating, so that they can be assured that their discoveries will remain proprietary. She also noted that piracy results in job losses in the local economy, and can lead to increased crime. ¶17. (SBU) Al-Baghdadi was frank in admitting that Kuwait,s 1999 copyright law is inadequate. She also acknowledged that the maximum penalty of 500 Kuwaiti dinar (about $1700) for convicted IPR violators is too low. According to Al-Baghdadi, the Ministry is drafting a new law that will increase the penalties for violators and address the copyright law,s weaknesses. (Note. Al-Baghdadi's comments at the seminar contrasted with remarks she made the previous week to a local newspaper, in which she complained vigorously about the unfairness of IIPA's Special 301 submission, and particularly its targeted criticisms of the Ministry of Information. She was quoted by the newspaper as saying, "We are not Superman, but we are doing our best." End Note.) ¶18. (SBU) Other government presenters spoke about shortfalls in Kuwait's IP program that are often raised by the USG and the IP industry. For example, the Ministry of Interior,s Col. Adel Al-Khazam lamented the lack of coordination among GOK ministries, and said that an interministerial committee was necessary so that different agencies could benefit from each other's experiences and expertise. (Note. According to Microsoft,s enforcement manager, the Council of Ministers this week approved the creation of such a committee. End Note.) ¶19. (SBU) Rania Al-Essa from Kuwait Customs spoke about the benefits of training, especially that offered by rights holders. She noted that the rights holders can also learn from the experiences of enforcement (as illustrated by Customs' and GM's exchange on counterfeit auto parts, described in para 13). Like Al-Khazam, Al-Essa underscored the importance of cooperation among agencies, saying that Customs works regularly with the Ministries of Health, Information and Commerce. Do Rights Holders Share Blame for Piracy? -------------- ¶20. (SBU) Other government speakers were less willing to accept blame for Kuwait's IP record. Mansour Al-Mutairi from the Ministry of Commerce and Industry's Patents and Trademarks Department admitted that piracy is a problem in Kuwait, and while he cited evidence of his Ministry,s commitment to upholding IPR - referring 63 piracy cases to the public prosecutor,s office and seizing 680,000 pirated CDs and games in the first quarter of 2005 - he cautioned that better IP protection will take time. Al-Mutairi then asserted that intellectual property rights holders share some of the blame for Kuwait's lousy record. In his view, rights holders are charging too much for proprietary products, and should be willing to sell their products for less if they want to make a dent in counterfeit sales. Al-Mutairi cited the case of a businessman who was looking to purchase software for his company, but who claimed he could not afford to buy original software and was therefore "forced" to buy pirated copies. (Note. Microsoft, for one, sells discounted software in the Kuwaiti market. For example, all ministry employees are eligible to purchase Microsoft Office for 5 Kuwaiti dinar, or $17; university students and faculty are also given a discount. End Note.) ¶21. (SBU) Professor Ahmad Mouneer Al-Najjar from Kuwait University took strong issue with Al-Mutairi's contention that rights holders should bear the burden of upholding IPR. Al-Najjar emphatically stressed that compliance with TRIPs provisions is mandatory for all WTO members, including Kuwait, and noted that the Government of Kuwait is obliged to enforce IPR as part of the government's international commitments. He also refuted the notion that companies are pricing their products irrationally. According to him, product pricing reflects certain sunk costs (such as research and development) that decrease over time, particularly as legitimate competition emerges. For this reason, he said, countries need to focus on developing competitive industries rather than allowing pirate markets to flourish. He also noted that better IP protection will yield greater foreign direct investment and enhance consumer protection. ¶22. (SBU) Al-Najjar emphasized the importance of public education, saying that if young people (and students particularly) do not understand the importance of IPR, they will not abide by regulations protecting it. While advocating the use of the "stick" to enforce IP laws, he also called for using education to convince people that they should be self-motivated to obey IP regulations. He noted that to this end, the university hopes to offer an elective course on intellectual property rights, which would be sponsored by an international corporation. Day Two: Role of the Private Sector -------------- ¶23. (SBU) On day two, which was devoted to the private sector's role in upholding IPR, the audience thinned considerably from about 40 on the first day to no more than a dozen. Representatives from Microsoft and Rotana, an Arabic music production and distribution company, spoke about their companies' methods of combatting piracy and about the economic harm that they suffer as a result of piracy in the Kuwaiti market. The Rotana representative called on the public to ensure that the products they are buying are genuine, and urged the GOK to enforce IP laws and impose suitable penalties on violators. ¶24. (SBU) Bader Al-Mubarak from Enhanced Engineering and Multi-Technologies Company, an international information technology group, said that the private sector should offer seminars and training to educate the public about the importance of IP protection. At the same time, he said, the private sector should press hard on the government to carry out its IPR laws. Al-Mubarak was critical of the Kuwait Chamber of Commerce and Industry for not taking IPR more seriously, and called on it to set up an IPR program. He also lamented the fact that no Kuwaiti companies had agreed to participate as speakers in the seminar (all of the conference's private sector participants were representatives of international companies),and precious few had sent representatives to observe. An Experts Department without Expertise -------------- ¶25. (SBU) A particularly blunt speaker was Nidal Al-Hamaydan from the Kuwait Bar Association's IPR committee. She called for greater collaboration between the ministries and the Bar (which has significant expertise on IP matters),and expressed her disappointment that the Ministries of Information and Interior have thus far rebuffed the Bar's formal requests for cooperation. As had previous speakers, Al-Hamaydan agreed that Kuwait's IP laws are inadequate, especially with regard to prescribing punishments. She also criticized the Ministry of Information for its inspection regime, saying that the ministry does not take seriously its legal responsibility to close stores selling pirated goods. ¶26. (SBU) According to Al-Hamaydan, the individuals working in the Information Ministry's Experts Department are not IP experts, and have no specialized training. As a result, she said, the courts do not trust the experts' opinions when assessing an IP case. (Note. We have heard this same criticism from Judge Khaled Al-Hendi, the Ministry of Information's departing legal advisor. End Note.) Al-Hamaydan also decried the lack of standards within the department, claiming that each employee interprets the law differently from the other. Al-Hamaydan called for the ministry to implement a clear policy on how the law should be interpreted, and then enforce that policy. ¶27. (SBU) Al-Hamaydan called the 2005 Special 301 report "alarming," and said that it clearly demonstrates that Kuwait's IP problem is worsening. She criticized the GOK for arguing with the veracity of reports coming from embassies and international organizations about Kuwait,s IP shortfalls. "These are facts," she said, and she advocated that the government begin implementing the recommendations contained in these reports. Finally, she noted that there was a seminar in Jordan recently on e-commerce and piracy that had high-level participation from other Arab countries, including a juror from Saudi Arabia. There was no such attendance by the GOK. ¶28. (SBU) Rasha Al-Mulla from the Ministry of Information's Artistic Works Department concluded the seminar with a somewhat defensive presentation on the ministry's achievements. Of note, however, were the statistics that she presented. According to her, within a 20 day period starting in mid-April, the new Assistant Undersecretary for IP Enforcement, Brahim Al-Nouh, ordered raids on 94 targets that led to the confiscation of more pirated goods than the ministry had seized in all of 2004. She claimed that this should be enough to refute international criticism of Kuwait's IP record. LEBARON