POST INPUT ON SPECIAL 301

UNCLAS SECTION 01 OF 02 PRETORIA 000883 SIPDIS SENSITIVE BUT UNCLASSIFIED DEPT FOR EB/IPE SWILSON; AF/S KGAITHER USDOC FOR 4510/ITA/IEP/ANESA/OA/JDIEMOND COMMERCE ALSO FOR HVINEYARD TREASURY FOR OWHYCHE-SHAW DEPT PASS USPTO FOR MADLIN DEPT PASS USTR FOR PCOLEMAN, WJACKSON, AND VESPINEL E.O. 12958: N/A TAGS: KIPR ETRD SF USTR SUBJECT: POST INPUT ON SPECIAL 301 REF: (A) State 30790 (B) State 23950 (C) 2004 Pretoria 5433 (D) 2004 Pretoria 4424 (E) 2004 State 169178 (F) 204 Windhoek 905 (U) This cable is sensitive but unclassified. Not for Internet Distribution. ¶1. (SBU) Summary. IIPA's comments on IPR problems in South Africa are consistent with post's assessment on South Africa's deficiencies in dealing with the copying of educational texts, the shortcomings of copyright law, and the transiting of pirated goods. Ambassador Zoellick reiterated to SACU ministers in Walvis Bay in December that the FTA must be comprehensive and cover IPR. The FTA negotiation remains an important venue for pursuing a remedy to these issues. Post, the U.S. Patent and Trademark Office, and the Intellectual Property Action Group (IPACT) have organized workshops on IPR issues with South African government officials, prosecutors and magistrates. The South Africans National Prosecuting Authority has cooperated with these efforts by having the country's prosecutors attend IPACT workshops on enforcement issues affecting copyright, trademarks, and counterfeit goods. Post and IPACT have plans to roll out the IPR workshops to South Africa's in the next three months. End summary. ¶2. (SBU) Per instructions in reftel A, post has reviewed the information submitted by the International Intellectual Property Alliance (IIPA) identifying several countries as "Special Mention." The information provided on South Africa in this document is consistent with what Embassy understands from observations and contacts with South African IPR experts. According to a knowledgeable source, unauthorized photocopying of educational texts on university campuses is a serious problem that pits the publishing industry against South African librarians. Provisions on fair use are not settled. The IIPA comments on problems in copyright law mirror what post has submitted for the National Trade Estimates Report on Trade Barriers (Ref C) regarding the IPR industry's requests for amendments that would address the lack of criminal penalties for end user piracy, lack of presumptions relating to copyright subsistence and ownership, and non-deterrent civil damages. Delay on moving this issue forward lies with DTI. The SACU FTA negotiation remains an important venue for pursuing these issues, particularly as a DTI official with lead responsibility on legislative matters leads the SACU side on IPR issues. ¶3. (SBU) The IIPA report also raises the concern of the South African Revenue Service (SARS) not detaining contraband in transit. At a recent meeting of the Intellectual Property Action (IPACT) training subcommittee, a South African lawyer specializing in intellectual property law similarly mentioned the need to amend South African law in order to clarify that it does apply to pirated goods that are passing through the country in transit, not only those that are entering the country. Apparently a recent court ruling suggests the Counterfeit Goods Act does not cover goods in transit. This makes it difficult, for example, to seize containers arriving in the port of Durban that have goods believed to be counterfeit. Even if the companies can get the government enforcers to intervene, it is very expensive for the industry, which has to pay the costs for detaining and storing the goods because of the inadequacy of government storage depots. Moreover, the industry questions whether the pirated goods are actually in transit; the shipping invoice may name a different country as a destination, but this could be fraudulent, with South Africa being the actual place where the goods end up. FTA --- ¶4. (SBU) The negotiations for a Free Trade Agreement (FTA) with the Southern African Customs Union (SACU) began to discuss IPR issues (a "phase two" issue) in the three rounds held in 2004-Walvis Bay, Maseru and Atlanta. Because the talks stalled since the June 2004 round, there has not been an opportunity for further detailed discussion. In his meeting with SACU ministers in Walvis Bay in December 2004 (reftel E),however, U.S. Trade Representative Ambassador Robert Zoellick, reiterated the need for a comprehensive FTA that covers all the issues, including IPR. Post Efforts with USPTO and IPACT -------------- ¶5. (U) Post continues to work with IPACT and the U.S. Patent and Trademark Office (USPTO) to develop programs that raise the awareness of IPR enforcement issues. On August 23, 2004, the USPTO, IPACT and the U.S. Embassy organized the Workshop on Enforcement of Intellectual Property Rights in Johannesburg. The USPTO funded the event (Reftel D). Over sixty South African government officials participated, including representatives of the Department of Trade and Industry (DTI),DTI's Companies and Intellectual Property Registration Office (CIPRO),the Department of Health, the South African Police Service (SAPS),the South African Revenue Service (SARS),the Department of Foreign Affairs (DFA) and the Registrar of Trade Marks and Patents. Managers from leading U.S. pharmaceutical companies also attended and discussed solutions to their problems with SAG officials. USPTO Attorney Advisor Michael Adlin delivered well-received presentations on counterfeit medicines and effective enforcement tools against optical disc and digital piracy. A representative of the SA Department of Health discussed enforcement using the Medicines Control Act. A Department of Trade and Industry (DTI) official discussed optical disc and digital piracy. (Note: She attended the USPTO Enforcement Academy program in October 2004 in Virginia.) The Chairman of the Business Software Alliance (BSA) discussed software piracy issues. The group marketing director of Johnnic Communications spoke on the importance of IPR enforcement for the film industry. The Superintendent of the Computer Unit of the South African Police Force discussed investigative techniques along with two representatives of the South African Revenue Service. The media also covered the event. ¶6. (U) IPACT organized a pilot project for over 60 prosecutors from Gauteng province (which includes the major metropolitan areas of Pretoria and Johannesburg) on September 21, 2004. Private sector IPR experts and attorneys focused on South Africa's Counterfeit Goods Act, discussed copyright and trademark enforcement issues, and described the economic harm of pirated goods. There were also sections on expert evidence preparation, criminal case examples, and case study workshops. IPACT described the event as a public private partnership. IPACT presented the same program to South African magistrates at the Justice College in Pretoria on November 29. ¶7. (U) During the next three months, Post, in conjunction with IPACT, will sponsor this same workshop with national prosecutors in the rest of the country: Polokwane, Nelspruit, Blomfontein, Kimberley, Cape Town, Port Elizabeth and Durban (the major cities in South Africa's other provinces). South Africa's National Prosecuting Office is coordinating this effort by directing its prosecutors to attend. ¶8. (U) Post passed on the points from reftel A to officials at DTI during the visit of Commerce DAS Holly Vineyard on February 18. FRAZER