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

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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