JAMAICA: 2007 SPECIAL 301 REVIEW - EMBASSY INPUT

UNCLAS SECTION 01 OF 02 KINGSTON 000221

SIPDIS

SENSITIVE

STATE FOR EB/TPP/MTA/CIP, WHA/EPSC AND WHA/CAR

DEPARTMENT PLEASE PASS TO USPTO, USTR

SANTO DOMINGO FOR FAS AND FCS

SIPDIS

E.O. 12958: N/A
TAGS: KIPR ECON ETRD USTR JM
SUBJECT: JAMAICA: 2007 SPECIAL 301 REVIEW - EMBASSY INPUT

REF: A. STATE 07944

This message is sensitive but unclassified. Please handle
accordingly.

This message responds to reftel request for post input for the
Special 301 Interagency Review Process. It also contains an action
request in paragraph 8.

SUMMARY
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1. (SBU) Summary and Recommendation: Embassy Kingston recommends
that Jamaica remain on the Special 301 Watch list, due to its
continuing failure to pass a WTO TRIPS-consistent patent law. Its
trademark and copyright regimes meet international standards and
enforcement efforts over the past year have been commendable.
Ministry officials and the Acting Executive Director of the Jamaica
Intellectual Property Office (JIPO) are keen to have the Patents and
Designs Act passed and Jamaica removed from the Special 301 Watch
List, but the legislative process has been glacial. Jamaica also
faces difficulty in receiving adequate assistance, at times, from
U.S. rights-holders when it does attempt to prosecute cases, due to
the small scale of the piracy. End Summary and Recommendation.

LEGISLATION
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2. (SBU) Jamaica is on the Watch List primarily because its
intellectual property rights laws do not meet WTO TRIPS standards.
Jamaica has had TRIPS-compliant trademark and copyright acts in
place since 1999. In January 2004, the Jamaican Parliament approved
a bill to protect Geographical Indications, but has yet to pass
implementing regulations. Most disturbingly, new patent, plant
variety, and industrial design laws are no closer to reality today
than they were at the January 2000 TRIPS implementation deadline.
GOJ officials repeatedly insist that passage of a new
TRIPS-compliant patent law is a high priority, but this claim is
undercut by the fact that it has languished for nearly four years.



3. (SBU) Embassy Kingston has continued its lobbying efforts over
the past year. Emboffs have strong and continuous contact with the
Jamaica Intellectual Property Office (JIPO). On February 6, 2007,
emboffs met with representatives of JIPO Lonette Fisher-Lynch and
Edward Brightly (Note: Brightly was, until recently, the Acting
Executive Director of JIPO. Endnote) to discuss legislative
developments relating to IPR. Brightly noted that the Samuelson
Law, Technology, and Public Policy Clinic from the University of
California at Berkeley had reviewed the latest version of the
Patents and Designs Act, and had offered extensive recommendations.
These were being reviewed by the Attorney General, after which the
act will be sent to cabinet and then parliament for discussion and
eventual passage into law. Brightly said that the Attorney
General's office had completed its review, but admitted that it was
highly unlikely that the Act would be tabled in Parliament before
late 2007.

BROADCAST
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4. (SBU) In the past, the U.S. television/cable industry has
criticized Jamaica's broadcast of copyrighted material without
permission. However, anecdotal evidence from cable operators in
Jamaica indicates that attempts to secure licensing agreements with
U.S. firms have met with a lack of interest, as a result of the
inadequate size of the market. That being said, Richard Pardy, CEO
of Flow, Inc., a provider of data services, voice
telecommunications, and subscription video, told Econoff that at the
Caribbean Cable Show in St. Kitts in early February, HBO announced
its intention to launch a Caribbean package. In general, Jamaica's
Broadcast Commission takes seriously its responsibility to ensure
that local cable television license holders have obtained permission
from content providers to broadcast copyrighted material.

ENFORCEMENT
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5. (SBU) The GOJ had several enforcement successes in 2006, with the
police seizing illegal goods from a number of storeowners, street
vendors, and distributors. In one notable case, in August 2006,
officers from the Jamaica Constabulary Force (JCF) raided a Kingston

KINGSTON 00000221 002 OF 002


warehouse and confiscated over 35,000 illegal CDs, DVDs, an audio
cassettes with in excess of JMD 1 million (approximately USD
15,000). Brightly noted that prosecutions had been successful over
the year, but Fisher-Lynch observed that judges still required
greater awareness of the need to apply penalties that created a
significant disincentive to returning to the trade in pirated goods.
Fisher-Lynch noted, for example, that the law allowed for a fine of
JMD 100,000 (approximately USD 1,500) per count (i.e. - a pirated CD
with 15 songs could warrant a JMD 1.5 million (USD 22,000) fine).
Judges, however, seemed reluctant to levy such penalties against the
street-level peddlers in pirated goods.


6. (SBU) Both Brightly and Fisher-Lynch commented that in some cases
prosecutions were hampered by either (A) Jamaican rights-holders
being unaware of the value of seeing cases through, or (B) foreign
rights-holders being unwilling to invest time and effort in
assisting in the prosecution of offenders, due largely to the low
impact that street peddlers economically on large entities. They
cited a case in which they sought the assistance of the Motion
Picture Association of America (MPAA),needing an affidavit in order
to see the prosecution through. They maintained that they never
heard back, and had to drop the case. Econoff encouraged JIPO to
seek the assistance of the Embassy where appropriate.


7. (U) The GOJ has been very keen to take advantage of training
courses offered by the USG, in particular the enforcement academies
offered by the United States Patent and Trademark Office (USPTO).
In 2006, four Jamaican individuals attended training in Alexandria,
Virginia, and Post continues to seek nominations of qualified
individuals for such courses. As always, a lack of resources means
that the GOJ is unable to send personnel for training at its own
expense.


8. (U) Action Request: Brightly and Fisher-Lynch noted that JIPO was
looking closely at the collateralization of intellectual property
assets. They requested USG assistance in identifying speakers with
the requisite skills and knowledge to present at a seminar,
tentatively suggested for May 2007 (after Jamaica finishes hosting
Cricket World Cup matches in March and April). They expressed
particular interest in up to three speakers in the following areas:


A. The value of intellectual property.

B. Why undertake valuation of IP assets?

C. How is IP valuation done?

D. The importance of proper valuation of intellectual property for
obtaining financing.

E. Collateralization of IP assets.

F. Using IP assets to finance your business.

Post requests that EB/IPE assist in identifying USG and/or private
sector individuals with expertise in this area. Post point of
contact is Economic Officer John Morgan (morganjs@state.gov) and
please cc Elvis James (jamesem@state.gov).

COMMENT
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9. (SBU) Post believes that continuing presence on the Special 301
Watch List is required to encourage Jamaica to pass the Patents and
Design Act. Nevertheless, Post believes that the GOJ makes a
sincere effort to comply with its IPR obligations in other areas.
Considering the enormous financial limitations under which the GOJ
operates, and given the vast resources that must be diverted to
security, it is commendable that the GOJ makes the efforts that it
does. Given that these constraints are not limited to Jamaica, a
regional training in the Caribbean by USPTO may allow the smaller
economies to find funds to travel to each other. At the same time,
it would leverage the assets of USPTO: rather than funding various
(and relatively few) participants to travel to Washington, a
regional seminar in Kingston, for example, would allow for more
people to attend, and would contribute to efforts to raise the
profile of the issue in the Caribbean.

JOHNSON