RUSSIA IPR: AMBASSADOR'S 10/31 MEETING ON CIVIL

UNCLAS SECTION 01 OF 02 MOSCOW 012158 SIPDIS SENSITIVE SIPDIS STATE FOR EUR/RUS AND EB/TPP/BTA STATE PASS USTR FOR DWOSKIN, DONNELLY, ERRION NSC FOR TGRAHAM, TMCKIBBEN USDOC FOR 4231/IEP/EUR/JBROUGHER AND MEDWARDS E.O. 12958: N/A TAGS: KIPR ETRD WTO RS SUBJECT: RUSSIA IPR: AMBASSADOR'S 10/31 MEETING ON CIVIL CODE PART IV ¶1. (SBU) SUMMARY: In an October 31 meeting with Presidential Advisor Veniamin Yakovlev and Duma Legislative Committee Chairman Pavel Krasheninnikov, Ambassador outlined top USG concerns regarding draft Part IV of the Civil Code on IPR and strongly urged action now to correct serious inconsistencies with the WTO TRIPs Agreement and international IP conventions. Yakovlev reported some 20 USG-proposed amendments to Part IV were among the 300 accepted for inclusion in the draft, which is up for its second of three readings on November 3. Accepted amendments 1) allow seizure, including of equipment, in all piracy cases; 2) remove limitations on the scope of exceptions to copyright protection; 3) delete domain names from the list of protected works; 4) seek greater consistency with WIPO Internet treaty language regarding protection for temporary copies, the "make available" right, and "protection for technological protection measures;" and 5) appear to respond to USG concerns about the scope of national treatment. The final version of Part IV, likely to be adopted by the end of November, will undoubtedly require further amendment, but, again, it appears that the GOR is attempting to address significant USG concerns in advance of Code passage. End summary. ¶2. (SBU) Following up on an October 21 conversation between the Secretary, the Ambassador and Deputy PM Dmitriy Medvedev on draft Part IV of the Civil Code, Medvedev asked Presidential Advisor Veniamin Yakovlev and Duma Legislative Committee Chairman Pavel Krasheninnikov to meet with Ambassador October 31. The Russians' stated intention was to meet prior to the conclusion of the amendment process, which will end with the Duma's second reading of Part IV on November 3. Also present was Aleksandr Makovskiy, Yakovlev's deputy in the working group that drafted Part IV, and Krasheninnikov's chief of staff Igor Manylov. ¶3. (SBU) Yakovlev claims the Legislative Committee has incorporated into draft Part IV "over twenty" USG-proposed amendments presented by a USTR-led team of experts in early October. The Committee rejected amendments where it was felt they "reflected a lack of understanding of the Russian legal system," or where international conventions provide discretion on how certain provisions were to be implemented. All told, the Committee accepted 300 of 600 proposed amendments. Yakovlev passed the Ambassador a Russian version of the current draft (with all 300 proposed amendments), which will be voted on November 3. The third (and final) reading of Part IV is expected by end-November. ¶4. (SBU) The Ambassador outlined top line USG concerns regarding the draft, urging the Duma bring it into compliance with TRIPs and international IP conventions now rather than amend the text after its adoption. He also passed a Russian version of a USTR non-paper explaining our key concerns. ¶5. (SBU) Makovskiy reported that the Legislative Committee accepted amendments allowing seizure in all piracy cases, not just the largest, and including seizure of equipment used in piracy. The Committee incorporated into Article 1229 provisions of current Russian copyright law, Article 16, providing TRIPS-consistent exceptions to copyrights. Regarding concern related to consistency with the WIPO Internet treaties, the Committee proposed including 1) protection for temporary copies; 2) language in current Russian copyright law on the "making available" right; and 3) the word "technologies" in the article dealing with protection for technological protection measures, all of which were intended to address USG concerns. The Committee recommended changes to the Part IV language on domain names which would allow domain names to remain objects of IPR, while deleting provisions explaining how they should be protected. ¶6. (SBU) Regarding USG concerns about national treatment for all aspects of IPR, Makovskiy pointed to Article 2 of the Civil Code's general provisions, which specifies that the entire Civil Code applies to all citizens, regardless of nationality -- in this way national treatment applies to all Civil Code provisions. The only place in which Part IV specifically states application to foreign citizens are articles using language taken from the Berne Convention, which do not provide national treatment to foreigners. A subsequent Embassy review of the latest text revealed new text specifically linking non-exclusive rights to the MOSCOW 00012158 002 OF 002 ¶7. (SBU) Regarding geographical indications (GIs) provisions of draft Part IV, Makovskiy comments revealed a continuing disconnect with GOR about USG concerns. The Ambassador urged his interlocutors to reread and carefully consider that and other points contained in the USTR non-paper. ¶8. (SBU) Comment: A very rough back of the envelope analysis identified 15 instances where the GOR appears to have accepted USG proposed amendments, although patents seems to be a broad exception to this pattern, and there may be some mop up work to do with respect to the "make available right" as well as the "temporary copies" language. While it is a given that the text of Part IV likely to be adopted this month will contain inconsistencies with TRIPs and IP treaties that will require amendment, it appears the GOR is attempting to address significant USG concerns. Our interlocutors were instructed to meet with us prior to the second reading of Part IV, and they were clearly sensitive to our suggested amendments. We are providing to USTR and EUR/RUS by fax the pages of the latest draft, concentrating on passages of greatest concern to the USG, and are making arrangements for the shipment of the entire 300 page text to Washington as quickly as possible. End Comment. BURNS