BAHAMAS: INPUT FOR SPECIAL 301 REVIEW

UNCLAS NASSAU 000327

SIPDIS

SIPDIS

STATE FOR WHA/CAR WBENT, EB/IPE AMADAMO

E.O. 12958: N/A
TAGS: ETRD BF KIPR
SUBJECT: BAHAMAS: INPUT FOR SPECIAL 301 REVIEW

REF: SECSTATE 14937


A. Optical Media Piracy (CDs, VCD's, DVD's)
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1. No CD's, VCDs, or DVDs are legally mass-produced in The
Bahamas. Music CDs produced in The Bahamas by Bahamian
artists are duplicated and packaged for sale by U.S.
facilities. There is widespread sale of pirated goods,
however. A chain of video rental/sales stores, Super Video,
openly sells and rents pirated media. Several other stores
in The Bahamas sell pirated media, and vendors of pirated
media regularly market their wares on sidewalks outside
grocery stores, from roadside stands, and elsewhere.
According to government officials, adequate and effective
enforcement exists under a law in effect since 1998.
However, a complaint must be lodged for these provisions to
be applied. Bahamian copyright owners have sought and been
given redress based upon the 1998 act, but few other
complaints have been lodged. The GCOB uses the lack of
complaints to justify its position that there is not
significant optical piracy in the country. GCOB officials
further suggest that without the filing of complaints by
copyright owners, there is little to be done by the
Government to enforce anti-piracy laws. Review of relevant
Bahamian law, however, suggests that police inspectors may
lawfully seize pirated media with reasonable cause, even if a
formal complaint is not made. This remedy is rarely, if
ever, used.


B. Use/Procurement of Government Software
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2. The Data Process Unit (DPU) of the Ministry of Finance
purchases all government software. The unit complies with
international standards of copyright protection. Each agency
must request software from the DPU, which then purchases,
installs, upgrades and troubleshoots, as required. All
software used by the government is licensed according to
industry and international standards.


C. TRIPS Compliance and FTA Implementation
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3. (C1) Amendments made in 2004 to the Copyright Act and
Regulations, which would narrow the scope of compulsory
licensing to include only "communication and reception over
the air and not encrypted", have not been implemented. The
GCOB will not put the amendment into effect until Cable
Bahamas has licenses in place for programs being broadcast
over its cable system. Cable Bahamas made good faith efforts
in 2005 to obtain those licenses, but remains unable to reach
agreement with the MPAA. Cable Bahamas views Spanish
language programming offered by existing licensing with the
MPAA as unmarketable, and the MPAA is unwilling to
renegotiate licensing for more appropriate English language
programming.


4. The GCOB believes it has complied with the agreement
reached with the U.S. in 2000, which requires the GCOB to
amend the Copyright Act and Regulations to narrow the scope
of compulsory licensing. Amendments were made, but not
implemented. The 2000 agreement also requires the GCOB to
begin consultations with U.S. copyright owners and/or holders
to provide enhanced equitable remuneration for compulsory
licensing and to amend the royalty rate structure in effect.
The GCOB has made good faith efforts to consult with US
copyright owners, and has on multiple occasions sought to
meet regarding these issues, to date without response.
Bahamian beneficiaries of compulsory licensing are required
to deposit renumeration with the Copyright Tribunal, but U.S.
copyright owners have not made claims on these funds.


5. The GCOB continues to welcome action by the U.S.
government to encourage U.S. copyright owners to enter into
good faith negotiations with cable operators in The Bahamas
to provide voluntary licensing on commercial terms. The GCOB
believes that the U.S. has failed to meet its obligations in
the 2000 agreement to facilitate these negotiations.
According to the GCOB, copyright owners continue to complain,
but will not negotiate to resolve the issue.


6. (C2) The Bahamas has no new legislation related to
geographical indications, integrated circuits, plant variety
protection or TRIPS based IP.


7. (C3) The Bahamas has no new legislation related to
domestic protection of traditional knowledge or expressions
of folklore, or addressing issues related to genetic
resources and access and benefit sharing.


8. (C4) There is insignificant test data submitted by
pharmaceutical and agricultural chemical companies in The
Bahamas to make protection of test data an issue.


9. (C5) There is no other pending IP related legislation or
coordinated government effort regarding IP protection.
According to the GCOB, it is strongly committed to ensuring
there is full and complete protection for intellectual
property in The Bahamas. The GCOB remains willing to receive
U.S. input and assistance to ensure protection for
intellectual property.


D. Enforcement
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10. The GCOB believes that it is appropriately enforcing IPR
violations. According to government officials, complaints by
copyright owners are addressed under the 1998 act, but claim
that without the filing of complaints by copyright owners,
there is little to be done by the Government to enforce
anti-piracy laws. However, review of relevant Bahamian law
suggests that police inspectors may lawfully seize pirated
media with reasonable cause. This remedy is rarely, if ever,
used. Sales of pirated goods in video chains, on sidewalks,
in the local "straw market" and elsewhere is common. Because
of lack of recognition of widespread sale of pirated goods,
and lack of enforcement without specific complaints by the
copyright owner, enforcement does not serve as a significant
deterrent against the sale of pirated goods.


E. Treaties
--------------


11. The GCOB is not a member of the WTO. It is nevertheless
reviewing WTO requirements and continues to consider
amendments that will bring The Bahamas into compliance with
WTO requirements, including WCT and WPPT.


F. Training
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12. The GCOB is receptive to training and generally
cooperative with U.S. efforts, making it a good candidate for
IPR training. The Bahamas would benefit from training
regarding enforcement of IP violations, including improvement
of police sensitivity to IPR violations and police use of
seizure of pirated goods upon reasonable suspicion of
violation. Post believes that improved police efforts could
make a significant impact on street sale of pirated goods.
The GCOB has also said it would welcome information and
training from the U.S. regarding steps to establish controls
on, and require licensing of, optical media manufacturing
capacity and equipment and material inputs.


G. Recommendation to Maintain on Watch List
--------------


13. The amendments made to the Copyright Act and Regulations
in 2004 justified last year's move from the Priority Watch
List to the Watch List. However, there has been no further
progress in 2005 to justify the removal of The Bahamas from
the Watch List. Despite GCOB efforts, negotiations between
the Bahamian beneficiaries of compulsory licensing, primarily
Cable Bahamas, and U.S. rights holders remain at a stalemate.
The GCOB uses that stalemate as an excuse for not
implementing the 2004 amendments and continues to request
U.S. assistance in mediating the dispute. The retail sale of
pirated goods continues to be tacitly permitted. U.S. rights
holders have a remedy under the 1998 Copyright Act, but the
small size of the Bahamian market has limited the degree of
attention and efforts the rights holders have devoted to
official complaints. The GCOB does not pursue other
potential enforcement actions to stop the retail sales. The
GCOB has made an effort to put itself into compliance with
the letter of its 2000 agreement with USTR, but the core
problem remains -- compulsory licensing is defacto lawful in
The Bahamas. For that reason, coupled with a lax attitude
toward retail enforcement, Post recommends that The Bahamas
remain on the Watch List.
ROOD