IPR IMPLICATIONS OF LEAVING THE ANDEAN COMMUNITY

UNCLAS SECTION 01 OF 02 CARACAS 002331 SIPDIS SIPDIS COMMERCE FOR 4331/MAC/WH/CAMERON E.O. 12958: N/A TAGS: KIPR ETRD VE SUBJECT: IPR IMPLICATIONS OF LEAVING THE ANDEAN COMMUNITY AND JOINING MERCOSUR This message is sensitive but unclassified, please treat accordingly. -------------- Summary -------------- ¶1. (SBU) Venezuela's hasty withdrawal from the Andean Community (CAN) has left a legal void regarding intellectual property rights protection. Though some BRV agencies, such as the Autonomous Intellectual Property Service (SAPI), continue to apply CAN norms, legal experts are questioning whether the norms remain binding if Venezuela is no longer a member. If they are abandoned, the country would return to existing laws -- for copyrights, a 1993 law is fairly protective, but not so for industrial property, whose 1957 legislation is sorely outdated. Mercosur, in contrast to CAN's strong IPR regime, has minimal IPR protections. If CAN norms are kept, they could only be superseded by new laws, which are already on the National Assembly's 2006 schedule. Currently, there is draft legislation on copyrights and industrial property - and both are offers that weaken IPR protection. End Summary. -------------- Legal void? -------------- ¶2. (U) Article 153 of Venezuela's Constitution stipulates that norms adopted under international agreements automatically become Venezuelan law. However, Venezuelan law also stipulates that legislation must be published in the Official Gazette. Some CAN decisions and norms were published without congressional approval, others with congressional approval, and some weren't published at all. A handful of legal experts allege that only those norms ratified by congress now apply, while others maintain that all norms, regardless of publication in the gazette, continue to be Venezuelan law. Other experts, such as the head of CAVEME (Venezuelan Pharmaceutical Chamber) believe that CAN norms are no longer valid if Venezuela is not a member of the Andean Community (Note: With the exception of trade preferences, which remain in effect for five years. End Note). Since no branch of the BRV has come forward to clarify the issue, there is general confusion regarding applicability of CAN norms (i.e. a legal void). ¶3. (SBU) Despite differing opinions, the majority of legal experts and some in the BRV, such as the Autonomous Intellectual Property Service (SAPI),are still applying CAN norms. The legal questions will not be fully clarified until the Supreme Court (TSJ) makes either a general ruling on applicability of CAN norms, or it rules on an individual case and sets precedent. (Comment: A TSJ ruling or other BRV clarification is unlikely, as the negative consequences of leaving CAN are rarely discussed publicly -- they would be an affront to President Chavez, who was vehement that "CAN is dead." End Comment.) -------------- If CAN regulations are abandoned -------------- ¶4. (SBU) Andean Community norms on intellectual property offer adequate protection. Renouncing these would mean Venezuela would have to return to existing national law for patents, copyrights, and other IPR protections. Venezuela's 1993 Copyright Law is protective of IPR, and is generally considered a strong piece of legislation. However, there is a draft copyright law currently in the National Assembly (NA) which requires mandatory national registration of all artists seeking copyright protections, sets high fees and low royalties, has strong penalties for non-compliance, and CARACAS 00002331 002 OF 002 includes a clause allowing the BRV to use a work if it is in "national interest." If the law passes in its current form, it would provide little incentive for international artists to enter the Venezuelan market, and it would weaken protections for local copyright holders. ¶5. (SBU) If CAN norms are abandoned, Venezuela would also revert to the 1957 Industrial Property Law (governing patents) -- an outdated piece of legislation that offers inadequate IPR protections. Returning to this legislation would certainly weaken an already fragile IPR regime. The National Assembly is currently debating a draft industrial property law, whose details are unknown. Hildegard Rondon, a former TSJ magistrate and supposed author of the draft law, stated that "industrial property is authored by rich countries so it favors them" and that Venezuela needs to find "its own solution." She then introduced the idea of an "Author Invention Certificate," which would give recognition to an inventor, but not exclusivity. Nobody in the industry has seen the current draft law, and a National Assembly representative who was invited to speak at an IPR-CAN event in early July merely told the audience he "couldn't discuss the law" but that it would be open to public debate soon. If this draft law follows the path of other legislation, the NA will seek private sector opinions but ultimately their recommendations will not be incorporated into the law. With Rondon's hints about content, the law will likely have poor industrial property rights protection. -------------- The Mercosur alternative -------------- ¶6. (U) Unlike the Andean Community, Mercosur does not offer a strong IPR protection regime. The body has only one agreement on trademarks, harmonized protocols for geographical and source indications, but no regulations on patents. It also (for now) lacks a court to field disputes, or a parliament. There are two committees that deal with IPR issues: the IPR Commission (part of the industrial subgroup) and a Commerce and Customs Technical Committee. In the works is a Protocol for Combatting Piracy, which is being discussed by Justice and Interior Ministers of member states. Mercosur does have some trade denominations for patents and technical drawings and multiple agricultural agreements (some of which could protect vegetable varieties, for example). As opposed to the CAN, where adopted norms automatically became law, Mercosur's member states must each ratify norms for them to be binding. Mercosur's protections are a far cry from those of the Andean Community and membership could essentially mean a return to the TRIPS standard and WTO as a baseline for IPR protection. -------------- Comment -------------- ¶7. (U) For now, the BRV is continuing to apply CAN norms, and nothing has suggested that the TSJ will make a clarifying ruling to interpret the legal consequences of withdrawal. Despite Chavez making the decision to withdraw from CAN unilaterally (and without consultation),there has been little public discussion about the negative ramifications of leaving the organization, especially for IPR. The lack of BRV forethought is apparent -- the government is remaining silent because they haven't thought the issue through. Though Venezuela had lackluster implementation of CAN norms before departing, the regulations did serve as a legal basis to protect IPR despite anti-IPR voices within the country. Now, the door is left wide open for draft legislation infringing upon IP rights to sail through the National Assembly and become law. WHITAKER