GREECE'S EFFORTS IN IPR PROTECTION; EARLY SPECIAL

UNCLAS E F T O ATHENS 002950 SIPDIS NOFORN SIPDIS STATE PLEASE PASS USTR FOR CHRIS WILSON PLEASE PASS USPTO FOR MICHAEL SMITH DOC FOR 4232/ITA/MAC/KNAJDI/JKIMBELL E.O. 12958: N/A TAGS: ECON GR KIPR SUBJECT: GREECE'S EFFORTS IN IPR PROTECTION; EARLY SPECIAL 301 REVIEW VOLUNTARY INPUT REF: A. STATE 066964 ¶B. STATE 180082 ¶1. (U) Summary: Since the receipt of the USG's Special 301 action plan for Greece in April 2006, the GoG has made a bona fide effort to improve its overall IPR protection stance. There has been positive, concrete, action on aspects of the action plan, including noteworthy first steps with the Judiciary, improved responsiveness from agencies responsible for digital IPR protection (software and on-line piracy activities),and a commitment to create an informal Embassy-Greek Customs working group to discuss the problems related to the import of IPR-violating products (primarily footwear). ¶2. (U) There still remains work to be done, however. In particular, Greek legislation and judicial discretion combine to gut most of the penalties for individuals found guilty of vending pirated products, leaving little deterrent to these activities. Additionally, coordination among the seven Greek ministries overseeing GoG IPR policy is still weak at best, leaving gaps between IPR policy and effective enforcement. Nevertheless, at this time the situation in Greece is considerably improved over 6 months ago, and post is receiving good GoG cooperation on a variety of fronts. End SQm%arQ.Q Q& (U) If April, in response to Re"Tel (A),p)st b%gaj working aggressiv%d9 7ith v!r))us G+E -ibistries to improve th% ,er%l -b IPR 0Rg4ection in Greece. Init)a, r%Sp/fqe3 QeR% lackluster, often marke$ "Y $e"%*1iv%b%3S. Within a few months, (g5e6%r, r%s0-f3es began to improve, and we "e!!n T# Rece)Qe better and more productiVe r%3Pmf3es. At T(is time, nearly all o" t(e eicht a2ea1 i. the April action plan h!Qe bee& !t ,e!Q4 Preliminary addressed "i Qhe r%le6a*t AcCQ authority. Outside of T(% !at)gb plaf, 0/s4 has also been worki.g Qi4( ,o!ad QePR%3ejtative organizations /" 4(e MPAAQ a.d RIAA#IFPI in Athens to prod5ce data )f Pe2ce)r%d problems with the Hed,ej)c Ju$iciaQy a&$ its responses to piracIQ c!s%Q* Qe haRe 2eceived preliminary dat!$ Wh)c( ib "m4 eftirely consistent, are a. i-p2o6%e%.4 mv%r t(e total lack of data "R'- qh)!h Qe W%2e 5crking earlier. Jud)c)ad T2!i*ij% % -------------- ¶4. (U) The GiE (ThQg5gh the Hellenic Judicial Aca$e-Y) h!SQ 0,edged t) hold a two-day, in-s%Rv)ce j5$icia, see)na2 for sitting judges, as 7e,l as t2!i*ee judges, in March 2007.Q T(% d%t!id1 c& 4h)S seminar are not finaliZe$$ buT 4(e G)GQ (as requested USG input inte 4he a'ebda, i.c,uding suggesting speaker1 and tc0icS" A&ter discussions with USPTM )n %arliQ Oc4-beR$ post understands theR% i1 a g+-d ch!fae 4hat one or two U.S. *Ud'e1 siTh a fk!uQ '* IPR may be available 4o 0ar4i#ip!Te i& t(is event; this would be a. %Qc%llen4 -0QorQunity to highlight our d%QiRe Qg 5k2k Qith 4he Hellenic Judiciar9 gj IPR& Addit)ej!lly, post has received m&"ic)alQ GcC *m4ibication that the Helleni! J5d)c)ad Acadee9 3ill introduce a perman%j4 a.d %!n$at+Qi IPR course for all judges )n it3 2Q01%0Q #U2riculum. The details o& t(e ac5Rs% !Re f#QQ yet known, but it i1 d)kedi Tc be a 2 $a9$ 10 hour course. Th%Se t7m !o5RseS !R% g%kd starts to educating bcQh cuRRejt !nd fuTure judges on the imp+R4!nce if IPR. W% w)ll encourage the GoG Tg cc.s)de2 4he ib-s%Rvice seminar not as aQ g.e-ti-e %r%nt, but as a necessary and rep%at!ble %le-e.T if keeping sitting judgeQ 0e2)k$ic!l$Q QefQeshed on IPR matters. ¶5. (U) Th% GkG (as fot, however, been able tm q#he$Ud% !fQ interagency IPR conference to follow-on to its successful December 2005 event. The Ministry of Foreign Affairs was the coordinator for the conference, and the office in charge has not had any leadership since June of this year. Post, with desk officers from State and Commerce, met with MFA officials assigned to the Greek Embassy in Washington D.C. to press home the useful role that the MFA could play in assisting IPR protection in Greece, either as a coordinator for interagency events such as the 2005 IPR conference or in occasionally providing moral suasion to keep IPR issues moving when they hit sticky spots in the GoG bureaucracy. We hope this message will find resonance with the new leadership to be installed in the MFA directorate in charge of IPR issues. Arrests and Prosecution -------------- ¶6. (U) The lack of deterrent penalties levied on IPR violators continues to be a problem. Post has worked closely with industry representatives to collect data on prosecutions, which has heretofore been unavailable. This data was not collected through rigorous methodology, but does provide a back-of-the-envelope estimate of the situation. ¶7. (U) EPOE figures on movie piracy covered January 2005 to September 2006. The following is a breakdown of significant statistics: -- There were a total of 358 cases brought by EPOE against violators -- 141 cases were postponed at the defendant's request (39 percent); -- 25 cases were postponed at the request of EPOE (7 percent); -- 37 cases resulted in an acquittal (10 percent); -- 151 cases resulted in convictions (43 percent); -- 4 cases were settled out of court (1 percent). Of the convictions: -- 44 were given less than 6 months in prison (29 percent); -- 38 were sentenced to between 6-12 months in prison (25 percent); -- 69 were sentenced to 12 or more months in prison (46 percent). ¶8. (U) According to Greek copyright law, the minimum sentence for a conviction is 12 months in prison, so less than half of violators convicted were in fact, given a sentence in line with the statutory minimum. However, of those convicted, fewer than 2 percent actually served any prison time. For the rest the sentences were suspended in accordance with Greek penal codes which specify that first time offenders sentenced to less than three years of prison time are to be given suspended sentences. Suspended sentences are carried for three years, during which time any recidivist activity causes an automatic reinstitution of the penalty as well as any new penalties. However in practice, because of poor record keeping and information sharing between court jurisdictions, almost no repeat offenders are identified as such. As a consequence, the current system does not seem to provide adequate deterrent penalties for IPR offenders, even as conviction levels are relatively high. This seems to stem both from judicial reluctance to impose high penalties (which would avoid the automatic suspension rules),as well as awkward statutory regulations. ¶9. (U) IFPI data covered only January to December 2005. -- There were a total of 1538 confiscatory raids in 2005; -- 702 offenders were arrested in these raids (46 percent). Of the arrests: -- 177 cases had incomplete or unavailable data (25 percent); -- 109 cases are still pending (15 percent); -- 367 cases resulted in convictions (53 percent); -- 6 cases resulted in an acquittal (1 percent); -- 43 cases involved juveniles which are not handled by the regular statutory process (6 percent). Of the convictions: -- 133 were sentenced to less than 6 months in prison (36 percent); -- 77 were sentenced to between 6 and 12 months in prison (21 percent); -- 140 were sentenced to 12 or more months in prison (38 percent); -- 17 cases have incomplete or have no data (5 percent). ¶10. (U) Interestingly, IFPI statistics show that of the 350 convictions on which there is data, only 144 (41 percent) received suspended sentences, a considerably lower number than that reported by EPOE. At this time post has no explanation for this discrepancy. IFPI did report, however, that at the appellate level "practically all the sentences are suspended." It is worth noting that this month, EPOE and IFPI won a joint victory when an IPR violator (caught with CDs, DVDs, Playstation games, and various burning equipment) was sentenced to 7 years in prison and given a 20,000 euro fine. Although the case is being appealed, the court ruled that the prison sentence would not be suspended pending the appeal, and the pirate has been incarcerated. Although this is just one case, and the majority of cases are still being suspended, it is a good sign, and EPOE and IFPI are both pleased with the outcome. Fighting Piracy -------------- ¶11. (U) No corporate representatives have informed us of any problem with the Hellenic Police or prosecutors in regards to making raids or bringing charges against IPR violators. Quite the opposite, most organizations have told us that they have received excellent cooperation on this level, and that they believe they would receive even more if the police believed that their efforts would result in more than the violator being back on the streets within a matter of days. In the one area of concern, the Special Tax Authority (YPEE), which has oversight over computer piracy (including software piracy as well as piracy conducted via the Internet) has increased its activities in this area. Business Software Alliance (BSA) has been very appreciative of YPEE's efforts in sending out compliance letters to over 30,000 large Greek businesses requesting their existing software licenses. This information will be used later to confirm compliance with applicable copyright laws. In addition, one U.S. apparel/footwear manufacturer informed post that it has successfully conducted at least a half-dozen raids with the YPEE against vendors who are using the Internet to market pirated versions of its product. Increased IP-Related Staff -------------- ¶12. (U) It is difficult to quantify GoG compliance with this request. Post has been informed by two offices that they have received increased funding and personnel; the Copyright office in the Ministry of Culture (OPI),and YPEE. OPI continues to be one of the staunchest supporters of IPR protection in Greece and YPEE has certainly been more proactive on IPR issues, receiving high commendations from both BSA and apparel companies. Even without necessarily having received increased funding, the Hellenic Police continue to provide adequate time and resources to battling IPR violations, and no local IPR representatives have indicated that there is a lack of willingness to help them at that level. Although obviously more could be done with more resources, given Greece's relatively poor status vis-a-vis other EU members, the resources currently available do not seem to be a major limiting factor in IPR violations in the country. The lack of judicial support in applying deterrent punishment probably plays a greater role in any enforcement difficulties than a lack of resources. Bring Cases to Court in a Timely Manner -------------- ¶13. (U) The data obtained from OPOE and IFPI suggests that prosecutors are in fact bringing cases in a reasonable time. Local representatives were not aware of any case in which prosecutors or judges had refused to hear a case, or delayed the case to the detriment of the plaintiff. However, the Greek system does allow for defenders to avail themselves of postponements, which can be lengthy, and these requests are routinely granted. Approximately 55 percent of IPR cases at the trial court level are postponed at least one time. Although these delays are a nuisance, it is not clear that the use of these delays is abusive or injurious to the prosecution. ¶14. (U) In a related vein, however, local representatives have complained that the courts often release accused IPR violators without imposing bail, with the effect that violators then fail to show up for their scheduled court appearances. Unfortunately post has received no data on the frequency of this occurrence. Establish Attica IPR Session Court -------------- ¶15. (U) There is no provision in Greek law for specialized courts for criminal cases and the GoG has indicated that it would be difficult to justify the creation of such a special court. In principle, Greek law stresses that all criminal cases are supposed to be treated equally because the penalties can include loss of liberty. Our judicial contacts have indicated that a special IPR court for criminal cases would be seen as creating a "separate" criminal system, which could raise the specter of the Junta years in the public eye. However, civil IPR cases (such as those brought by BSA against businesses who have not complied with software licensing agreements) are heard in a special IPR-only session of court one day every month in both Thessaloniki and Attica. We have been informed by both GoG and industry representatives that this is adequate given the relatively few civil IPR cases being brought to court. In fact, BSA representatives told us that more than half of any complaints they file are settled before trial, and that they are relatively satisfied with the judicial system. The GoG is considering whether or not to implement a similar dedicated session at the appellate level. Work with Apparel Industry -------------- ¶16. (U) The sole representative of the U.S. apparel industry that has approached the Embassy with concerns about piracy in Greece has indicated that his firm is receiving good cooperation from the Hellenic Police, YPEE, and other GoG organizations. The company is concerned about the amount of pirated product being imported into Greece through customs, however, as well as the openness with which stores in a particular neighborhood of Athens continue to vend pirated products. The company, however, has indicated that it wishes to handle the situation on its own for the time being, and does not wish to be named openly in Embassy communications with the GoG on IPR. To address the issue of customs enforcement, however, the Embassy and Ministry of Finance have agreed to the creation of an informal working group on IPR, which will feature customs and YPEE officials from the GoG side, and DOS, DOC, DHS, and possibly LEGAT from the USG side. The primary issue will be how to improve Hellenic Customs performance, especially as it regards the illegal import of pirated products. Conclusion -------------- ¶17. (U) Compared with the level of official GoG attention IPR was receiving this time last year, there has been a tremendous improvement. In particular, the action plan appears to have achieved its goal of focusing attention on particular areas of concern. More needs to be done, of course, and a certain amount of pressure must be maintained to keep the GoG on task. In particular the situation with the judiciary is a hard nut to crack. As a result of constitutional changes made after the Junta years in Greece guaranteeing judicial independence, approaching the judiciary to discuss sentencing is an enormously touchy and politically explosive issue. Our contacts at the Ministry of Justice have told us flat out that politically they cannot approach the judges with suggestions on their rulings, and that having a U.S. representative approach the judiciary could seriously backfire. Although we are convinced that the judicial system is key to improved IPR protection in Greece, next steps will have to be considered carefully and progress is likely to be incremental. RIES