IPACT Workshops on IPR Enforcement Advance STOP -

UNCLAS SECTION 01 OF 04 PRETORIA 003051 SIPDIS DEPT FOR EB/IPE SWILSON; AF/S; INL USDOC FOR 4510/ITA/IEP/ANESA/OA/JDIEMOND COMMERCE ALSO FOR HVINEYARD TREASURY FOR OWHYCHE-SHAW DEPT PASS USPTO FOR MADLIN AND SSCHIFFMAN DEPT PASS USTR FOR PCOLEMAN, WJACKSON, AND VESPINEL GENEVA FOR USTR E.O. 12958: N/A TAGS: KIPR ETRD SF USTR SUBJECT: IPACT Workshops on IPR Enforcement Advance STOP - Strategy Targeting Organized Piracy REF: (A) Pretoria 1697 (B) 2004 Pretoria 4424 (C) State 129471 ¶1. Summary. This wrap-up cable reports on the seven workshops on IPR enforcement funded by INL that the U.S. Embassy organized with IPACT. The workshops succeeded in raising awareness of the seriousness of IPR issues and of ways to enforce the law more effectively in South Africa. Some 244 prosecutors attended the workshops held in seven provinces. The workshops promoted a common cause and good relations between the prosecutors and private sector defenders of IPR. Many of the attorneys who made presentations represent U.S. companies with IPR interests in South Africa. The workshops established a useful precedent for future workshops with South African prosecutors and magistrates. We hope INL will continue to assist with funding for future projects. End Summary. ¶2. South Africa has an advanced legal framework of intellectual property rights (IPR) on the books. Because of the demands on prosecutors to deal with the widespread vicious and violent crimes occurring daily in South Africa, however, it can be difficult to get them to focus on IPR crimes. In order to help remedy this situation, the U.S. Embassy brainstormed with the Intellectual Property Action Group (IPACT) to come up with a practical way to improve the enforcement of IPR laws in South Africa. Working together, we decided to organize a number of workshops on IPR enforcement in eight of South Africa's nine provinces between September 2004 and May 2005. (The sparsely populated Northwest province was the only one where we did not organize a workshop.) ¶3. As we were formulating the project, the former INL officer at post raised the proposal generally with South Africa's Director of National Prosecutions, who supported the idea. The National Prosecuting Authority of South Africa was instrumental in the success of the project. Following a meeting with members of IPACT and the U.S. Embassy in early 2005, the Deputy Director of the National Prosecution Service advised prosecutors throughout the country to attend the workshops. Her active coordination accounts for the large turnout of prosecutors (244),which roughly ranged from 61% (Port Elizabeth) to 84% (Durban) of all the national prosecutors in the seven provinces invited to attend. Some drove over a hundred miles to attend. Many of the absences were due to illness or distance. ¶4. Microsoft, one of the members of IPACT, hosted the pilot workshop for this series at its offices in Johannesburg (reftel A) in September 2004, in which scores of prosecutors from the Gauteng province attended. Subsequently, the Department of State's Office of International Narcotics and Law Enforcement Affairs (INL) provided funding for follow-up workshops as follows: Place Date Number of Prosecutors Polokwane, Northern Province March 7, 2005 32 Nelspruit, Mpumulanga March 8, 2005 18 Kimberley, Northern Cape April 6, 2005 28 Bloemfontein, Free State April 7, 2005 36 Cape Town, Western Cape May 3, 2005 65 Port Elizabeth, Eastern Cape May 4, 2005 27 Durban, KwaZuluNatal May 5, 2005 38 Total 244 ¶5. The local chief prosecutor and an IPACT representative opened each workshop with welcoming remarks. A member of the U.S. Embassy's Economic Section also spoke to underscore the economic significance of IPR to the United States and to South Africa and underlined the Administration's new Strategy Targeting Organized Piracy (STOP) initiative. The one-day workshop featured IPR attorneys from IPACT speaking on particular features of South Africa's intellectual property laws, followed by Q&As and a discussion with the prosecutors. Presenters included the Recording Industry of South Africa (RISA),the South African Federation Against Copyright Theft (SAFACT),the Business Software Alliance (BSA),Microsoft, and attorneys from the law firms of Adams & Adams, Bowman Gilfillan, DM Kisch, and Spoor and Fisher. Presenters also ran various anti-piracy videos, including one on counterfeit goods and one currently shown daily in cinemas by SAFACT. The topics covered were: -- Copyright -- Trade Mark -- Procedures under Counterfeit Goods Act of 1997 ("CGA") - Elements of Offence - Time Periods and Sentencing -- Presentation on Films and Publications Act -- Expert evidence preparation and procedure -- Admission of Guilt in terms of S 115A of the Criminal Procedure Act ("CPA")and Plea Bargain -- Evidence and presumptions in terms of S 16 of the CGA -- Chain of Evidence -- Analysis of product -- The use of civil orders in criminal proceedings -- Sentencing in terms of S 19 of the CGA read with the Adjustment of Fines Act -- Section 10 of the CGA -- Knowledge in terms of S 2(2) of the CGA Practical success advancing enforcement -------------- ¶6. The workshops were successful in advancing enforcement of IPR law with those responsible for prosecuting the laws in the following ways: -- Clarifying the timetable for actions under the Counterfeit Goods Act, e.g., deadlines for issuing seizure notices and summons -- Addressing the issue of how to access court transcripts -- Encouraging better ways for case planning prior to seizures and arrests -- Developing cases more adequately and sufficiently -- Eliminating flight risk of defendants -- Answering questions on practical enforcement issues -- Delivering counterfeit goods to brand owners for destruction to reduce the risk of counterfeit goods making their way back to the streets -- Considering which laws would be most useful to prosecutors in pursuing counterfeiters - Financial Intelligence Sector Act, Terrorist Prevention Act, or the Criminal Procedures Act -- Addressing issues surrounding the constitutionality of the "presumptions" in the Counterfeit Goods Act -- Reminding prosecutors that the Adjustment of Fines Act gives prosecutors additional leverage in the sentencing aspects of cases -- Facilitating cooperation between prosecutors and brand owners -- Explaining techniques for discerning between counterfeit and legitimate products -- Evaluating issues of flexibility between the Criminal Procedures Act (CPA) and the Counterfeit Goods Act (CGA) -- Considering issues of admissibility of statements made by suspects to police officers, DTI inspectors, and customs officials -- Clarifying the difference between an "expert statement" (CPA) and an "analysis statement" (CGA) -- Discussing how many samples of counterfeit goods had to be analyzed in order to satisfy the requirement that a "fair sample" be tested, such as in a case where 5000 CDs/DVDs may be seized -- Describing the difficulty in getting expert testimony from overseas witnesses due to distance and expense in flying them to South Africa -- Considering the acceptability of using satellite testimony using SABC facilities as well as those of private law firms -- Helping prosecutors become better aware of the tools at their disposal to enforce intellectual property rights -- Providing the public with greater awareness of the issues through interviews with the media -- Promoting the Strategy Targeting Organized Piracy (STOP). Upcoming USPTO Regional Conference -------------- ¶7. In September 2005, the U.S. Patent and Trademark Office (USPTO),with funding from EB and INL, will host a regional African conference on counterfeit medicines in Johannesburg (reftel C). Post is currently working with SAG officials and various IPACT members to identify appropriate speakers and participants for this event. We attribute much of the cooperation that we have received from the SAG and the private sector in our request for assistance on this event to the goodwill that was established in the course of setting up the IPR workshops for prosecutors. Next steps -------------- ¶8. The prosecutors at each workshop recommended that IPACT conduct the same workshop with South African magistrates. Post has proposed such a project in reftel B. Prosecutors also expressed their hope that this was just the beginning of an ongoing effort to provide better training and education to prosecutors and that follow-up workshops would be available. Post endorses the idea of follow-up workshops. Prosecutors expressed appreciation for the U.S. funding of the events. IPACT presenters were equally generous in their acknowledgement to the United States for making these events possible through INL funding. We want to maintain the positive momentum that we have helped to develop. Recent SAG Successes -------------- ¶9. On May 31, 2005, the Department of Trade and Industry (DTI) issued the following press release to announce a landmark case in the criminal prosecution under IPR law: BEGIN TEXT LANDMARK CASE IN INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT In a watershed ruling on the criminal conviction and sentencing of counterfeiters, Mr Ferhard Mohamed was found guilty by the Pretoria Specialised Commercial Crimes Court. He was sentenced R90 000 or 18 months imprisonment with a further 18 months suspended for 5 years. This means the 18 month imprisonment will come into immediate effect should Mohamed again be convicted of counterfeiting within the next five years. The sentence is the result of the actions by inspectors from the DTI in September 2004. The DTI acted on a complaint lodged by Adidas SA (Pty) Ltd, Levi Strauss (Pty Ltd, Ferrari S.p.A and Nissan South Africa (Pty) Ltd against Mohamed who operates from the business, City Wholesalers, in the Asian Bazaar in Pretoria. The DTI inspectors seized more than 440 products. This was not the first time Mohamed had been found to be in possession of counterfeit goods. During a previous raid by the DTI inspectors approximately 1800 counterfeit products were seized. Counterfeit goods destined for Mohamed were also previously detained and seized by the customs officials from the South African Revenue Services. The Court considered this to be aggravating circumstances in handing down the sentence. The sentence sends a clear message from all law enforcement authorities that counterfeiting will not be tolerated and speaks out about the seriousness with which South African courts view counterfeiting. END TEXT Note: Ms Lana van Zyl, Director of Investigations, Office of Company and Intellectual Property Enforcement in DTI, issued this press release. She has been accepted into the USPTO's Enforcement Academy class in September. Her deputy, Ms. Amanda Lotheringen, attended the Enforcement Academy recently. Both of these SAG officials have attended IPACT workshops in the past year. ¶10. The local media also reported on July 26 that the police, working with the South African Federation Against Copyright Theft (SAFACT),had raided the Montana flea market near Pretoria four times in recent weeks. The most recent raid resulted in the seizure of 1,848 counterfeit DVDs from four stalls. ¶11. Counterfeiting remains a serious issue in South Africa. It is an uphill fight. Still, the recent examples in prosecuting IPR criminals and raiding flea markets shows that South African government officials are aware of the problem and are taking steps to promote IPR protection. The Embassy hopes that INL will continue to assist us in our efforts to promote a culture favoring IPR enforcement by funding future projects with IPACT. HARTLEY