2007 SPECIAL 301 REVIEW - BANGLADESH

UNCLAS DHAKA 000284

SIPDIS

SIPDIS

STATE PASS USTR (JENNIFER CHOE GROVES)
EB/TPP/IPE (JENNIFER BOGER)
COMMERCE FOR ITA/MAC/OIPR (CASSIE PETERS)

E.O. 12958: N/A
TAGS: ETRD ECON KIPR BG
SUBJECT: 2007 SPECIAL 301 REVIEW - BANGLADESH

REF: STATE 07944


1. Summary: Bangladesh is establishing the legal framework
needed to comply with its obligations under the TRIPS
agreement, but has not yet implemented the patent or
trademark provisions of TRIPS. Although new laws have been
drafted, they have not been enacted. Enforcement of
intellectual property rights is lax. Bangladesh is
predominantly a consumer of counterfeit and unlicensed
intellectual property. The five-week old interim government
established following the declaration of a state of emergency
has moved swiftly to address underlying governance issues
that contribute to IPR infringement. Post recommends against
listing Bangladesh under the established Special 301
categories. End summary.


2. The immediate past parliamentary government's term
expired in October, 2006. In accordance with the
constitution, a Caretaker Government was formed to organize
and hold elections within 90 days. In response to growing
political instability and the threat of violence during the
elections, the President of Bangladesh declared a state of
emergency under the constitution on January 11, 2007. The
initial Caretaker Government resigned and was replaced by a
new Caretaker Government. Elections scheduled for January 22
were canceled. The current Caretaker Government has pledged
to create the conditions necessary for free, fair and
credible elections and to hold elections as soon as possible;
however, it has not announced a specific timeframe for
elections.


3. Bangladesh is a signatory of the Uruguay Round
agreements, including the WTO's Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS),and was
obligated to bring its laws and enforcement efforts into
TRIPS compliance by January 1, 2006. However, according to a
November 2005 WTO decision, Bangladesh has until July 2013 as
an LDC to bring its laws and enforcement efforts into TRIPS
compliance. The Government of Bangladesh (GOB) enacted a
Copyright Law in July 2000, updating its copyright system and
bringing the country's copyright regime into compliance with
TRIPS. The GOB drafted new patent and trademark laws in 2005
to further comply with WTO requirements. These draft laws
have not yet been enacted. It is unclear whether these laws
could be enacted prior to the election of a new parliament.
There is no legislation specifically addressing protection of
traditional knowledge or expressions of folklore or related
to genetic resources and access and benefit sharing.


4. Piracy of intellectual property is nonetheless
widespread. Optical media (CDs, VCDs, DVDs, and software)
sold in Bangladesh is almost exclusively pirated. Current
imported pirated DVDs are widely available for an average
price of US $1.45 a disk. Although typically lacking special
features and high-end audio tracks, the feature presentation
is usually of good quality. These DVDs do not appear to be
mastered and produced locally; rather, most are imported from
Asia and South Asia by wholesalers and distributed to
retailers. In 2006, shops began selling locally produced
copies of imported, pirated DVDs at a twenty percent discount
(approximately $1.15 per disk). These disks are produced
using consumer-grade DVD burners and low quality recordable
disks. Post has received isolated reports of commercial
grade optical media production facilities in Bangladesh and
is working with industry to verify these reports. Industry
representatives have expressed continued concern that
improved IPR enforcement in Pakistan is prompting relocation
of illegal production facilities to Bangladesh.


5. Piracy of printed material is also widespread. Although
some stores in more affluent districts carry legitimate
copies of fiction and non-fiction books, textbooks used in
public and private universities are widely duplicated and
distributed to students. Duplication generally takes the
form of photocopies of an original, master text. Printing and
copying shops near universities are widespread and almost all
textbooks used in schools and universities are widely copied.


6. Theatrical print piracy is also prevalent and has been
implicitly sanctioned by the GOB film censor board, which has
approved obviously pirated prints of films for distribution
in Bangladesh. Industry sources believe most pirated
theatrical prints are produced in India from legitimate
prints, and smuggled into Bangladesh across its long boarder
with India.


7. The GOB does not ensure that government offices,



state-owned enterprises and semi-government organizations use
only licensed software or that they obtain sufficient
licenses for all copies of software in use by the GOB.


8. The GOB does not devote adequate resources to the
enforcement of IPR in Bangladesh. Lack of technical
expertise and capacity to enforce remain significant problems
for relevant government agencies. Copyright and trademark
offices are under-staffed and overburdened and most personnel
lack necessary expertise. The government has expressed
genuine interest in attending the Global Intellectual
Property Academy; however, funding is a limiting factor. In
addition, systemic problems in the courts prevent effective
enforcement of much of Bangladesh's laws, including
protection of property rights generally and enforcement of
IPR in particular. The magistrate and trial courts are
seriously overburdened and rife with corruption. In the rare
cases when judgments are obtained, enforcement of the
judgments is itself problematic. Police and judges do not
have the necessary training to handle IPR violations. There
are, however, rare cases of police raids on DVD and software
shops that produce illegitimate works.


9. Companies have reported receiving cooperation from the
Bangladesh Standards and Testing Institute (BSTI),a
government agency with responsibility for standards and
labeling regulation. BSTI has used its authority to regulate
deceptive labeling and trade practices to address IPR
violations in the misbranding of consumer goods. While BSTI
has been willing to investigate specific complaints, it has
insufficient resources to pursue a proactive campaign against
IPR violations in consumer goods.


10. During its first five weeks in office, the current
interim government has undertaken a highly publicized
campaign against corruption. Many high-level officials,
including former ministers and members of parliament, are
under arrest as are many businessmen with a notorious
reputation for corruption and collusion with allegedly
corrupt officials. The government has announced it will sign
the United Nations Convention Against Corruption. It has
requested and received the resignation of the members of the
Anti-Corruption Commission, which was widely acknowledged to
be ineffective, and is undertaking a comprehensive review of
legislation governing the commission and addressing
corruption generally. The government has also concluded
procedures to transfer control over the lower courts from the
executive department to the High Court, a legally independent
branch of government.


11. Comment: Post shares industry's concerns about
widespread piracy of IPR in Bangladesh. We do not, however,
concur with industry's recommendation that Bangladesh be
included on the watch list. Piracy of IPR is still largely
an issue of domestic consumption of pirated materials
produced elsewhere. While duplication of textbooks and other
printed material is widespread, the quality is poor and
appears to be intended primarily for domestic consumption.
Industry's allegations of optical media production plants are
disturbing; however, production apparently remains focused on
the domestic market at this time. Post is working with
industry to seek government action against these plants. The
response of the new interim government to these allegations
will be an important factor for next year's Special 301
review.


12. The proactive steps taken by the new interim government
to address core governance and law and order issues evidence
a new commitment to enforcing the rule of law. In doing so,
the government is addressing important underlying conditions
that have contributed to an environment in which IPR
infringement has flourished. While lack of expertise and
capacity to enforce existing IPR laws will continue to be a
significant problem, the new emphasis on enforcement is a
welcome change that may carry-over to the enforcement of
existing IPR legislation. Bangladesh continues to work to
meet the new deadline for compliance with its TRIPS
obligations. Under these conditions, we doubt a "name and
shame" approach will effectively motivate the government of
Bangladesh to improve the protection of IPR in Bangladesh.
End Comment.
BUTENIS