PERU: IPR ENFORCEMENT TRAINING PROPOSAL

UNCLAS LIMA 002019

SIPDIS

SENSITIVE
SIPDIS

DEPT FOR WHA/AND, INL/RM, EB/TPP/IPE
COMMERCE FOR 4331/MAC/WH/MCAMERON
USPTO FOR CBERDUT
USTR FOR BHARMAN
AMCONSUL RIO FOR DMAZURKEVICH
USEU FOR DCM/MCKINLEY

E.O. 12958: N/A
TAGS: KIPR ETRD ECON PE
SUBJECT: PERU: IPR ENFORCEMENT TRAINING PROPOSAL

REF: A. STATE 55928


B. LIMA 523

Summary
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1. (U) The Peruvian Government has shown a commitment to improving
IPR enforcement by establishing courts and prosecutorial offices
focused on IP issues in December 2006 and January 2007, and by
committing to the provisions of the U.S.-Peru Trade Promotion
Agreement's (PTPA) IPR chapter. These new IP judges and prosecutors
have the potential to remedy one of the biggest IPR enforcement
problems in Peru -- lack of judicial convictions and deterrent
sentences. These judges have inherited more than 1,000 pending IP
cases, but the vast majority of these officials have only very basic
knowledge and no experience in IPR issues.


2. (U) We hope to use this funding opportunity to train judges,
prosecutors and other IP enforcement officials so that they have the
skills necessary to do their jobs and thus improve the IP situation
in Peru. The training is also necessary to ensure the judges and
prosecutors understand Peru's new commitments under the PTPA. As
these courts and prosecutorial offices are already up and running,
the training is needed as soon as possible. Embassy Lima requests a
total of $41,000 of 2007 INL IPR Enforcement Training Funds for two
programs: in-country judicial enforcement training for IP judges
and prosecutors ($20,000),and funding to cover the plane tickets
for 20 Peruvian officials participating in USPTO Global Intellectual
Property Academy (GIPA) training in Alexandria over a one-year
period ($21,000). Detailed project descriptions with evaluation
metrics as requested by Ref A follow. End Summary.

Background
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3. (U) Piracy and counterfeit rates in Peru remain unacceptably high
and Peru has been on USTR's Special 301 Watch List since 2001 (see
Ref B for details on IPR in Peru). According to International
Intellectual Property Alliance (IIPA) 2006 estimates, 98% of sound
recordings and 70% of business software in Peru were pirated,
representing a loss of $80.5 million. According to the Business
Software Alliance (BSA),Peru's 2006 software piracy level was 71%,
representing losses of $59 million. The audiovisual industry
estimated a 75% piracy rate in 2006. The Pharmaceutical Research
and Manufacturers of America (PhRMA) estimated that patent and data
protection damages totaled 23.2% of sales in Peru. U.S. industry
representatives agree that Peru's IP laws and regulations are
generally adequate, but serious improvements are needed in
enforcement, particularly in terms of prosecutions and deterrent
sentences.

Proposal 1: Improving IP Prosecutions and Sentencing
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4. (U) Proposal 1 Description:

The U.S. business community and the USG have for years complained
about the lack of judicial convictions and deterrent sentences for
IPR violators in Peru. A critical shortcoming was the lack of
specialized IPR courts. To address this problem, the GOP (for the
first time ever) assigned IP duties to four national penal courts of
first instance and one appeals court in December 2006 and January

2007. The courts are now up and running, but the vast majority of
judges and their staff have no previous IPR experience. Peru also
now has three prosecutors' offices responsible for IP, and many of
these prosecutors are also new to IP issues. All Mission elements,
as well as the AmCham in Peru and the Peruvian Government's IP
Office (INDECOPI),agree that our current top IPR priority is to
train these judges and prosecutors so that they can correctly
adjudicate IP cases and deter IPR violations.

With USPTO assistance, post has managed to send a few of the judges
and prosecutors to IPR enforcement training at USPTO in Alexandria.
However, due to the large number of judges, prosecutors and staff
who need this training, and the fact that most do not speak English,
there is a dire need for specific in-country training. INDECOPI
recently offered training sessions during one month for the judges
on the basics of patents, trademarks and copyrights. The
judiciary-specific enforcement training we propose would build on
this basic training.

In order to keep the class size manageable, we propose two
consecutive, two-day sessions with no more than 30 participants per
session. The sessions would each include the following topics:

- effective enforcement/targeting with limited resources,
- preparing an IP case for prosecution,
- the importance of evidence,
- determining proportionate and deterrent sentences,
- tools to dismantle organized crime networks,
- enforcement aspects of IPR legislation and WTO commitments,
- new obligations under the U.S.-Peru Trade Promotion Agreement
(PTPA),
- country-specific case studies, and
- best practices.

To improve attendance, we propose holding the training within the
building that houses the IP courts (the training offered by INDECOPI
earlier in 2007 was done there successfully). A back-up option
could be the ILEA Training Academy located in Lima. The five
proposed USG speakers would come from DOJ (2),USPTO (1),and
ideally, from the Court of Appeals for the Federal Circuit (1) and
from a trial-level IPR court (1). It would be great if these
officials could include at least one judge and one prosecutor. The
AmCham would provide local speakers, such as IP lawyers, to present
case studies. If needed, a Peruvian Government official could
discuss Peru's IP laws and WTO/PTPA commitments. Because the new IP
courts are already hearing cases, we would like to provide this
training at the earliest date possible.


5. (U) Proposal 1 Estimated Budget:

Lodging 5 USG trainers $158/night x 5 nights x 5 $3,950
Per Diem 5 USG trainers $440/person x 5 $2,200
Airfare DC-Lima-DC $1,050/person x 5 $5,250
Miscellaneous fees $100/person x 5 $ 500
Translation w/Equipment $1,100/day x 4 days $4,400
Printing/Copying $ 300
Buffet Lunch (4 days) $2,000
Coffee breaks (4 days) $ 900
Transportation $ 500

Total amount requested for Proposal 1: $20,000

Proposal 2: Peruvian Participation in USPTO Training
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6. (U) Proposal 2 Description:

Post and Peruvian Government officials involved in protecting IPR
greatly appreciate the opportunity for Peruvians to participate in
USPTO Global Intellectual Property Academy (GIPA) training in
Alexandria and other USG-sponsored training. Officials that have
returned from such training have found the information learned and
contacts made extremely useful. They have become invaluable
contacts for the Embassy and the U.S. private sector.

Up until earlier this year, USPTO was able to fully fund the
participation of two Peruvians per each GIPA course offering. More
than 20 Peruvian officials attended these courses between August
2006 and April 2007. However, USPTO is no longer able to fund the
airfare of our participants, although other costs continue to be
covered. Unfortunately, the Peruvian Government is operating under
an austerity budget that does not allow purchase of plane tickets
for training. For the most recent courses, we have only been able
to send a few participants willing to pay for the travel themselves.
Under these circumstances, Peruvian participation in USPTO and
other training will plummet, especially from law enforcement
officials.

Post has no funding source for these IPR courses, so we request INL
funding for the plane tickets of 20 Peruvian participants per year
for USG training at USPTO and elsewhere. This funding would only be
used for courses where other travel funding is unavailable.


7. (U) Proposal 2 Estimated Budget:

Airfare DC-Lima-DC $1,050/person x 20 $21,000

Total amount requested for Proposal 2: $21,000

Targeted to U.S. Priorities
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8. (SBU) The inability of the GOP prosecutors and judicial system to
enforce IPR directly affects U.S. companies working in Peru. Many
American pharmaceutical, apparel and motion picture companies have
requested Embassy advocacy and assistance. The massive scale of
piracy and contraband in Peru is only possible through organized
crime. For example, the Peruvian Government has established a
strong link between piracy and money laundering. Peru's Financial
Intelligence Unit (FIU) is currently investigating several
multi-million dollar money-laundering cases with links to piracy,
including a case entering the judicial phase that involves the
laundering of over $54.5 million through the sale of pirated optical
discs. Most of these discs enter through Iquique, Chile, and the
FIU suspects that the individuals involved have strong ties to both
China and the United States. The FIU also thinks there may be a
connection to the Tri-Border Area of Argentina, Paraguay and
Brazil.


9. (U) The Peruvian Congress has ratified the U.S.-Peru Trade
Promotion Agreement (PTPA),which is currently pending approval by
the U.S. Congress. The enhanced IPR protections included in the
PTPA, coupled with Peru's existing laws and WTO commitments, make
for a good IPR framework. The lacking component is adequate
enforcement, including better prosecutions and the issuing of
deterrent sentences. The proposed training of newly-appointed
judges and prosecutors on the aforementioned topics is necessary to
improve IPR enforcement and help the Peruvian Government meet its
PTPA and WTO obligations. Furthermore, Peru will be hosting the
Asia-Pacific Economic Cooperation (APEC) forum activities from
September 2007 through November 2008, including the meeting of the
leaders of the 21 member economies. The USG strongly supports
APEC's IPR activities, and it is in our interest to strengthen the
host's enforcement capacity.

Strong Support of Host Government and Private Sector
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10. (U) Peru's IP laws are generally adequate and are being
strengthened in line with PTPA commitments. Peru is a member of the
World Intellectual Property Organization (WIPO),Paris Convention,
Berne Convention, Rome Convention, Geneva Phonograms Convention,
Brussels Satellites Convention, Universal Copyright Convention, the
WIPO Copyright Treaty (WCT),and the WIPO Performances and
Phonograms Treaty (WPPT). Most importantly, the Government has
shown its commitment to improving IPR enforcement by assigning
national jurisdiction for IP cases to four penal courts of first
instance and one appeals court, as well as by increasing the number
of prosecutorial offices dedicated to IP enforcement. Peru's IP
agency, INDECOPI, trained these new judges from April-May 2007, and
has requested USG help in more specialized training specific to
prosecutorial and judicial enforcement. Even the judges and
prosecutors themselves have approached the Embassy to request
training.


11. (U) The AmCham has a very active IPR Committee with three
subcommittees (on enforcement, PTPA implementation and increasing
government and public attention to IP issues). The AmCham agrees
that training the new judges and prosecutors is an immediate top
priority, and has offered to provide speakers for the training.

Addresses Key Gap to Improve IPR Enforcement
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12. (U) The lack of specialized IP courts was a glaring gap in
Peru's IPR regime, which the Government has finally begun to fill by
creating the courts and assigning the judges and prosecutors. The
proposed training is needed to give these new judges and prosecutors
the knowledge and skills necessary to successfully prosecute IP
cases and issue deterrent sentences that will help to make a dent in
the high levels of patent, copyright and trademark violations.

Capacity to Make Near-Term, Measurable Success
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13. (U) The creation of the IP courts is an unprecedented
opportunity to improve IPR enforcement. With virtually all of the
judges and prosecutors at the beginning of their IPR learning curve,
this training would without a doubt make a positive difference. The
short-term success of the training would be measured by the number
of IPR cases prepared by prosecutors, the number of cases heard and
decided by the five courts, and the severity of the resulting fines
and jail sentences. The mid-long term success would be measured by
the impact of improved IP judicial proceedings and deterrent
sentences on Peru's high piracy and counterfeit rates. The training
will also create a network of contacts/relationships for on-going
communication and further improvements.

Strong Project Oversight and Accountability Measures
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14. (U) This training has the support of every Embassy section
involved in IP issues, the Front Office, the AmCham, INDECOPI, and
the IP courts and prosecutorial offices. These entities will work
together to ensure the proposals are implemented successfully and as
cost-effectively as possible. The Embassy has experience in
preparing large training events, including several IPR events
co-sponsored by some of these same entities. The Embassy is
committed to selecting the most appropriate participants for the
training, as well as obtaining the site, accommodations, meals, and
translation services. The Embassy will keep detailed record of how
every dollar is spent.


15. (U) Post appreciates the Department's assistance with this
program.
STRUBLE