KUWAIT: COMMENTS FOR 2006 SPECIAL 301 REVIEW

UNCLAS SECTION 01 OF 03 KUWAIT 000508 SIPDIS SENSITIVE SIPDIS STATE PASS TO USTR E.O. 12958: N/A TAGS: ETRD ECON KIPR KU SUBJECT: KUWAIT: COMMENTS FOR 2006 SPECIAL 301 REVIEW REF: A. STATE 14937 ¶B. KUWAIT 39 ¶C. 05 KUWAIT 2251 ¶D. 05 KUWAIT 3222 ¶E. 05 KUWAIT 3608 ¶F. 05 KUWAIT 4402 ¶G. 05 KUWAIT 847 ¶1. (SBU) Kuwaiti government agencies continued to improve their enforcement performance in 2005, and demonstrated that IPR protection has become a routine priority for them. The Ministry of Information (MOI),which is legally charged with IPR protection and has long been the weakest performer in Kuwait's IPR regime, made substantial progress in 2005 under the leadership of Undersecretary Ibrahim Al-Nouh. MOI has hired and trained new inspectors, and has eagerly participated in USG training opportunities. Kuwait Customs and the Ministry of Commerce have both increased the frequency and effectiveness of raids and seizures of pirated goods. Kuwait Customs has been particularly aggressive, posting a 94 percent increase in seizures over the previous year (Ref B). The Municipality has become more involved and vendors no longer sell goods openly on sidewalks. The new inter-ministerial IPR committee has improved cooperation among agencies, and that cooperation has made prosecuting violators somewhat easier. ¶2. (SBU) Although problems remain, including a TRIPS-incompliant copyright law, weak penalties, and imperfect inter-agency cooperation, the bottom line is that Kuwaiti IPR enforcement improved markedly in 2005. Post, therefore, recommends that Kuwait be removed from the Special 301 Priority Watchlist and be placed on the Watchlist. Post maintains close contact with industry IPR monitoring organizations, e.g., the Arabian Anti-Piracy Alliance. In recent consultations, that organization stated that major industry watchdogs favored moving Kuwait from the Priority Watchlist to the Watchlist. Post feels that upgrading Kuwait's position on the Special 301 Report will encourage the expanding cadre of aggressive IPR enforcers in the GOK, and may act as a catalyst for further improvement, specifically amendment of the 1999 copyright law. In the 2006 Special 301 Report, Post strongly urges USTR to praise Kuwait Customs and the Ministries of Commerce, and Information for their work, while continuing to highlight the need for Kuwait to amend its copyright and sentencing laws. -------------- Optical Media Piracy -------------- ¶3. (SBU) The copyright industry claims that Kuwait's optical media piracy rate is 91 percent of sales, although the Ministry of Information disputes this figure. However, since the Ministry of Information does not compile its own statistics, the industry figure is all that is available. Although very high, the 91 percent figure is an improvement over the industry's 2004 estimate of 95 percent. In 2005, Customs conducted several raids in which CD/DVD duplicating equipment was seized. Clearly, based on the seizure of large quantities of discs, as well as duplicating equipment, during raids by Customs and Commerce inspectors, there is no doubt that optical media piracy rates are very high in Kuwait. -------------- TRIPS Compliance -------------- ¶4. (SBU) Kuwait's 1999 copyright law is not TRIPS-compliant. The Ministry of Information (MOI) has drafted extensive amendments to the law, which it believes will bring the law into conformity with international standards. As part of the TIFA process, USG experts have reviewed the law and provided feedback for the Kuwaitis' consideration. Amendments to the copyright law are still not finished, despite being in the works for nearly two years. MOI contacts have stated that the amendments are 85 percent complete, but could not say when they expect full completion. ¶5. (SBU) The Minister of Information submitted draft legislation in 2004 to increase penalties for IPR violators, but the National Assembly has not taken up the bill for discussion. Post, however, is encouraged that all raids in 2005 resulted in cases being filed. Most sentences included a fine (up to $1,700) and confiscation of the goods. While penalties are still rather weak, a few convictions in 2005 included jail sentences of up to two weeks. Post is encouraged to see jailtime meted out to offenders, but the enactment of minimum sentences, and their consistent KUWAIT 00000508 002 OF 003 application by the judiciary, will be critical to combating piracy in Kuwait. -------------- Enforcement -------------- ¶6. (SBU) Enforcement efforts and effectiveness differ by agency. Agencies have various levels of authorization needed to inspect and seize pirated goods, and to arrest and prosecute offenders. Inter-ministerial cooperation, which was virtually non-existent in previous years, improved notably in 2005. However, enforcement remains hampered by an apparent lack of willingness to prosecute Kuwaiti citizens who run piracy rings (prosecution is usually reserved for foreigners who work for Kuwaitis). Enforcement efforts against internet piracy have been inconsistent. For example, while the pirate music website "6arab.com" was shut down in 2004, another Kuwait-based site, "salmiya.net," is operating freely. ¶7. (SBU) Kuwait Customs. Kuwait Customs continues to be the most aggressive and most effective agency enforcing IPR. Customs uses a complex tracking system to catalogue seizures and the disposition of each case (e.g., referral to the prosecutor's office, penalties imposed on the spot, goods impounded and destroyed). Customs interdicts a variety of pirated and counterfeit goods, including clothing, toys, DVDs, CDs, movies, watches, video games and automobile parts. In 2005, Kuwait Customs boasted a 94% increase in seizures over 2004, with 364 seizures versus 187 the previous year. (NOTE: In Ref B, Post reported that Customs' seizures in 2005 increased 57% from 2004, but that figure was recently revised upward to 94%.) The bulk of these seizures were of counterfeit auto parts, followed by pharmaceuticals and optical media. Optical media seizures fell nearly 80% vs. 2004, but this can be largely attributed to a few very large busts in 2004 that inflated that year's numbers, and a new reluctance on the part of prosecutors to issue search warrants, rather than a real drop-off in Customs' enforcement efforts. (NOTE: Customs reports the value of goods seized in 2005 as $5.1 million, but this figure represents the materials costs, not the street value or value of legitimate goods.) Customs does at times allow shipments of pirated goods to be re-exported after the importer pays a penalty, rather than confiscating or destroying the goods. The U.S. Customs adviser has informed Kuwait Customs that this violates Kuwait's international IPR and customs commitments; Kuwait Customs has stopped permitting the re-export of media (which it destroys),but continues to allow re-export of other counterfeit materials. In some cases, IP rights-holders have agreed to absorb the costs of destruction in order to avoid the goods being re-exported. ¶8. (SBU) Ministry of Commerce and Industry (MOC). That Ministry became more active in IPR protection following the initial Trade and Investment Framework Agreement (TIFA) Council meeting in 2004. As the head of Kuwait's TIFA delegation, the Minister of Commerce was actively involved in pushing both his ministry and other agencies to improve IPR protections. MOC approaches IPR enforcement from a consumer protection standpoint, arguing that counterfeit products marketed as legitimate goods deceive consumers. In 2005, the Ministry created an IPR "task force" (Refs D & F) to focus its efforts. Because it does not have the statutory authority to do so, MOC is not able to take action against vendors who openly acknowledge that their goods are pirated and do not attempt to pass them off as legitimate; only MOI may discipline such vendors. One of the most encouraging signs of Kuwait's committment to IPR enforcement in 2005 was the increased cooperation between the Ministries of Commerce and Information was MOI's willingness to close down vendors identified by MOC's inspectors. Highlights of MOC's reported seizures in 2005 include 760,000 optical media discs (audio, DVD, VCD, video games, and software) and the referral of 82 cases for prosecution. ¶9. (SBU) Ministry of Information. MOI has primary statutory responsibility for enforcing IPR in Kuwait, but has long been the weakest link in the chain. The Ministry has been hindered by disinterested leadership and a few key personalities who endeavor to block any real progress. However, in 2005 MOI appeared to get serious about IPR, hiring 30 new inspectors and creating (with Post's assistance) new training courses for them. MOI sent several of these new inspectors for training at USPTO headquarters in Virginia. MOI's inspectors still struggle with a lack of resources, as they must often resort to driving their own vehicles on inspections or requesting transportation KUWAIT 00000508 003 OF 003 assistance from the Municipality. However, Post was encouraged by the removal of inspections head Ghannas Al-Adwani (who often refused to send out MOI's inspectors (Ref G)),and his replacement by the aggressive Rasha Al-Sabah. Post expects MOI's improvement to continue. ¶10. (SBU) In 2005, the Ministry of Information began keeping records of inspections and seizures. Highlights from Information's reported activity in 2005 include: -- 6,800 seized computer software discs -- 375,000 seized video game discs -- 355,000 seized audio CDs -- 54,000 seized VHS cassettes -- Most significantly: 293 cases referred for prosecution, with 266 sentences passed. -------------- -------------- WIPO Copyright Treaty and Performances and Monograms Treaty -------------- -------------- ¶11. (SBU) Kuwait is not a party to either treaty. LeBaron