IP ENFORCEMENT FUNDING PROPOSAL FOR NICARAGUA

UNCLAS MANAGUA 001043 SIPDIS SENSITIVE SIPDIS DEPT FOR INL/C/CP - JAMES VIGIL, EB/TPP/MTA/IPC - EVAN FELSING, EB/TPP/IPE - ANNA MARIA ADAMO E.O. 12958: N/A TAGS: KIPR KCRM ABUD AFIN SNAR ECON ETRD SUBJECT: IP ENFORCEMENT FUNDING PROPOSAL FOR NICARAGUA REF: A. SECSTATE 34733 ¶B. SECSTATE 28249 ¶C. MANAGUA 645 ¶D. MANAGUA 411 ¶1. (SBU) Summary: Working with a broad range of Nicaraguan partners, Post has developed a proposal for the intellectual property (IP) enforcement funding outlined in REFTEL A. While the Government of Nicaragua (GON) has recently taken several encouraging actions related to strengthening IP protections and the National Assembly (NA) passed a series of IP reforms required for entry into force of the Central America Free Trade Agreement (CAFTA),enforcement remains a stumbling block. The Nicaraguan National Police (NNP) Economic Crimes Unit (ECU) specifically requested assistance for training NNP investigators in IP enforcement. Private sector leaders of the intellectual property rights (IPR) coalition and GON interlocutors agreed that the fact that the ECU only has four investigators - who are responsible for all types of economic crimes - greatly inhibits IP enforcement. Also, the Nicaraguan Copyright and Patent Protection Society (NICAUTOR) has been an outstanding partner in Post's efforts to pass IP reforms and change the culture of piracy in Nicaragua. Post seeks funding to create an anti-piracy center (APC) that will train 120 officials in IP enforcement by utilizing NICAUTOR facilitators. There is also a public outreach element. This program will increase law enforcement effectiveness and provide capacity building to a key private sector partner. The cost of the APC is USD 55,100. See Paras 18 - 24 for proposal details. End Summary. The Cost of IP Piracy in Nicaragua to US Business - - - - - - - - - - - - - - - - - - - - - - - - - ¶2. (SBU) While Post did not recommend Nicaragua for Special 301 listing thanks to progress on IP issues, significant problems remain for US businesses. The US entertainment industry faces an uphill struggle in Nicaragua in the face of rampant piracy. Many outlets openly sell unlicenced goods, knowing that the GON lacks the resources to investigate and prosecute. In the last year, 13,000 cassettes, 19,000 CDs (music and movie),and several pieces of equipment for making illegal copies of music and movies were seized and destroyed by the NNP. The fact that these raids were carried out against only nine establishments and vendors in an open air market show the extent of the problem. Almost all of these outlets are now operating again. ¶3. (SBU) Nicaraguan Customs (Aduana) figures show that 538,125 tons of blank CDs were imported legally into Nicaragua in 2005. Since there are only a few small outlets for purchasing or renting legal music, movies, and software, it is clear that a large percentage of those imported blank CDs are for the purpose of illegal copying. While there are a few legitimate video rental outlet operating in the capital, Blockbuster found that it could not profitably operate in Nicaragua. ¶4. (SBU) One of the largest cable television companies in Nicaragua was recently presented with a "cease and desist" letter from the Motion Picture Association of America for broadcasting US-owned movies and television programs without license, although the cable company denies responsibility because the programming runs on a separately organized cable channel (that it broadcasts and with which ownership is overlapping). In the run up to the vote on IP reforms in February, a coalition of cable companies was the most vocal opponent to the new legislation since several may have not been paying for the right to broadcast American-owned content. Although computer use is growing rapidly, there are few outlets where properly licensed software is available. Recent media reports and anecdotal evidence also indicate that knockoff pharmaceuticals are readily available in open air markets. Close Cooperation on IP Issues and Proposal Development - - - - - - - - - - - - - - - - - - - - - - - - - - - - ¶5. (U) Post has developed a close partnership with many sectors in a campaign against IP piracy in Nicaragua. REFTEL C describes how this coalition helped pass IP reforms needed for CAFTA entry into force, and fostered an ongoing public information drive utilizing famous Nicaraguan musicians aimed at changing the culture of piracy. To draft the IP enforcement proposal described in this cable, econoff collaborated with IP prosecutors, Ministry of Trade (MIFIC) IP experts, ECU investigators, NICAUTOR and several representatives of the entertainment industry. ¶6. (U) The primary thrust of the proposal is based on a request from NNP ECU investigators who identified their lack of resources and a corresponding lack of understanding of the IP issue amongst their fellow police officers (as well as other officials) as the biggest hindrances to effective enforcement. Given NICAUTOR's energetic cooperation with Post on other IP issues, and its own need for capacity building, utilizing this association for IP enforcement training was quickly agreed to by IP coalition members. The Capacity of the GON and Civil Society to Combat Piracy - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ¶7. (SBU) As mentioned above, the ECU conducted several successful raids over the last year. Given their lack of resources, almost all of those enforcement actions were taken with the active participation of civil society. NICAUTOR, with funding from a national music producer and a local company that represents Vista Entertainment, took on the task of conducting initial investigations and identifying enforcement targets to the ECU. The private sector has even purchased gasoline so police could drive to the offending businesses. ¶8. (SBU) Since its creation in 2003 by 17 of Nicaragua's most important contemporary writers and artists, NICAUTOR has worked closely with national and foreign authors and businesses. To date, NICAUTOR-supported seizures include 80,000 CDs, 30 CPUs containing at least seven CD/DVD burners each, and other miscellaneous articles required for the manufacture of illegal material. NICAUTOR also coordinates closely with IP prosecutors. ¶9. (SBU) This year, the GON created an office dedicated to prosecuting IP crimes within the Office of the Public Prosecutor for Managua. There are currently two IP prosecutors (both of whom have received US-funded training). The two prosecutors have been proactive in seeking partnerships with civil society and the USG. They were actively involved in creating the APC proposal. ¶10. (SBU) The GON IPR Office also facilitated the non-judicial resolution of at least 12 cases involving IP infringements on music, software, photographs, videos and other works. Many of these cases also involved working with NICAUTOR. NICAUTOR's Strong Record as a USG Partner Against IP Piracy - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ¶11. (SBU) NICAUTOR's close cooperation in achieving USG IP goals this year has been remarkable. As part of this year's campaign for passage of IP reforms, NICAUTOR agreed that the Embassy Managua-conceived plan could be conducted under its auspices to maintain focus on the benefits to Nicaraguan businesses and culture. NICAUTOR launched the campaign with a well attended press conference. It then followed up by organizing direct lobbying by well-known Nicaraguan musicians (from across the political spectrum) to national legislators and editorial boards. With a small USG grant and many free services from the private sector, NICAUTOR also produced a CD containing music and pro-IPR messages from Nicaraguan cultural icons, which was distributed to legislators, media, and others who could influence the terms of the debate. ¶12. (SBU) With the same USG grant and private sector support, NICAUTOR also produced four anti-piracy spots for continuing broadcast in every movie theater in Nicaragua, several TV stations, the Internet, and (in audio version) on several radio stations. Links To Other US Foreign Policy Objectives - - - - - - - - - - - - - - - - - - - - - - ¶13. (SBU) CAFTA implementation and trade capacity building are identified in Post's Mission Program (MPP) Plan as the most important economic goals for Nicaragua. IP piracy in Nicaragua - the second poorest country in the hemisphere - directly hinders international investment. Once an international leader in music in the arts, Nicaragua's local artistic community is also inhibited by piracy, which damages the ability to produce and export artistic products. The APC will foster an improved business climate for creators of and investors in intellectual property. ¶14. (SBU) Another major MPP goal is improving the rule of law in Nicaragua. Post has identified lawlessness as a major roadblock on Nicaragua's path to full democracy and a modern, vibrant economy. Evidence shows that many economic crimes are directly linked to the corrupt political class. As Nicaragua faces critical national elections in November 2006, the USG must seek creative solutions to systemic corruption. This proposal builds capacity inside and outside of the government to take on that challenge. Regional Partnering - - - - - - - - - - ¶15. (SBU) While regional partnering is not an explicit component of this proposal, with additional funding it could easily be adapted to accommodate other Central American countries. A second facilitator could travel to other countries or the process could be duplicated. This would provide Spanish-language training for regional IP officials, which is generally not available from the USPTO acadamy. Sending regional representatives to the APC would also be a less expensive option. High Impact/Low Cost - - - - - - - - - - ¶16. (SBU) Although IP piracy in Nicaragua in absolute terms is not as costly to US businesses as is the case in more populous and wealthier countries, the close cooperation Post enjoys with anti-piracy partners and the nature of the problem here, give the USG an opportunity to have a profound and rapid impact for relatively little cost. Police, prosecutors, MIFIC, NICAUTOR and legal businesses are anxious to tackle this problem. Even Aduana and DGI, which have traditionally been primarily concerned that pirates pay their taxes rather than with how they earn their money, are involved in this project. ¶17. (SBU) Under our multi-faceted plan, a budget of USG 55,100 will allow the training of 120 police, DGI, Aduana, and other officials, create a reference and training capacity within NICAUTOR for future use, and provide funding for 52 outreach events to tackle the culture of piracy in Nicaragua. This plan will also strengthen NICAUTOR so it can continue its anti-piracy efforts. Proposal Details - - - - - - - - ¶18. (SBU) Post proposes to fund an Anti-Piracy Center (APC) in partnership with NICAUTOR. Using a "train the trainers" approach, a full-time APC facilitator/coordinator and a short-term assistant facilitator (to work only during four 3-day training academies) will receive US Patent and Trademark Office (USPTO) enforcement training of the type that is regularly conducted in the United States for foreign IP officials. Post will also approach the U.S. Justice Department (DOJ) and Department of Homeland Security/ Immigration and Customs Enforcement (DHS/ICE) for training assistance. The NICAUTOR APC facilitators will then train Nicaraguan officials on IP enforcement. ¶19. (SBU) The APC will conduct four IP enforcement training academies (one every three months) for NNP investigators from all over Nicaragua, DGI and Aduana officials, and prosecutors. From time to time, journalists and private sector partners may also be invited to participate. There will be 30 participants per academy for a total of 120 over a year. As mentioned above, there are currently four ECU investigators and two dedicated prosecutors. The academies will educate participants on the seriousness of the problem, Nicaraguan IP law, investigative techniques unique to IP cases, evidence preservation, making charging decisions, drafting indictments, and preparing cases for trial. ¶20. (SBU) For the three months leading up to the first academy, the APC facilitators will receive their training and prepare investigation and prosecution handbooks for specialized personnel. They will also create audiovisual and other training materials. A private sector video production company has agreed to provide its services at reduced cost. All materials used to present the enforcement academies, as well as other accumulated anti-piracy materials, will be made available as an IPR library within the APC. ¶21. (SBU) In addition to conducting the conferences, the APC facilitator will also be required to lead an anti-piracy public information campaign. At least once a week, he or she will conduct outreach to educational institutions, business chambers, media and/or artistic organizations. The person hired as a facilitator will be paid a Nicaragua-scale professional wage in hopes of attracting a dynamic individual who can, in turn, be developed as an IPR leader for the future. An attorney or person with entertainment business credentials would be a strong candidate. USG lectures from USPTO, DOJ, ICE, and IPR association (pharmaceutical, motion picture, music, software, etc.) will be encouraged to participate as lecturers as well. ¶22. (SBU) This proposal will also build organizational capacity for NICAUTOR, which is a not for profit organization. Despite its successes, NICAUTOR has neither an office nor a staff. It's sole employee is Engel Ortega, a well known Nicaraguan song writer. Several international copyright protection societies are partnered with NICAUTOR but are reluctant to provide direct funding until it can show success in forging royalty contracts with the Nicaraguan private sector. Post believes that this proposal will give NICATOUR the organizational strength needed for it to become self-sufficient in a short time. Cost Breakdown (USD, For One Year) - - - - - - - - - - - - - - - - - ¶23. A. Renting and maintaining an office: $7,000 ¶B. Facilitator/coordinator: $20,000 ¶C. Assistant facilitator: $1,600 ($400 per academy) ¶D. Administrative assistant: $2,800 ¶E. Rental of facilities for four training academies (including lunch for participants): $8,000 ¶F. Academy attendee materials: $500 ¶G. Support for public outreach (including travel): $1,000 ¶H. Accountant (two visits per month): $1,200 ¶I. Auditor: $5,000 ¶J. Training/Audiovisual Materials: $2,000 ¶K. Training of facilitators: $6,000 Total: $55,100 Measuring Results and Verifying the Appropriate Use of Official Funds - - - - - - - - - - - - - - - - - - - - - - - - - - - ¶24. (SBU) A committee consisting of three officers from POL (INL),ECON (IPR),and USAID (TCB-IPR) will oversee this program. NICAUTOR will be required to submit monthly reports on its activities. This proposal covers the cost of contracting accounting services. Also, $5,000 will be used to contract an independent auditor to verify the appropriate use of official funds and other contract requirements. Post will also monitor the number of siezures, arrests, and convictions to measure the direct impact of this program. Points of Contact - - - - - - - - - ¶25. Post looks forward to receiving feedback on this proposal. Points of Contact are Dana Deree (DereeDD@state.gov) until May 31, and Nicole Chulick (ChulickNA@state.gov) thereafter. TRIVELLI