BELARUS SPECIAL 301 REVIEW

UNCLAS MINSK 000156

SIPDIS

STATE FOR EB/TPP/IPE BOGER
STATE PLEASE PASS TO USTR FOR CHOE-GROVES
COMMERCE FOR ITA/MAC/OIPR PETERS

SIPDIS

E.O. 12958: N/A
TAGS: KIPR ETRD ECON BO
SUBJECT: BELARUS SPECIAL 301 REVIEW

REF: A. 06 MINSK 195


B. STATE 7944


1. Summary and recommendation: Post once again recommends placement
of Belarus on the watch list for 2007. Little has changed since
Post's 2005 Special 301 input (ref A). Pirated optical media
remains the norm, being readily available across the country,
including in state-owned stores, and enforcement was minimal and
impeded by deficiencies in Belarusian law. The GOB was sluggish in
providing Post with even minimal information on TRIP compliance and
enforcement. Nevertheless, recent GOB cooperation with the WIPO is
noteworthy. End summary.


2. Post will attempt to answer the questions presented in ref B.
However, the GOB's main IPR body, the National Center for
Intellectual Property Rights (NCIPR),failed to answer most of
post's questions.

Optical Media Piracy
--------------


3. Optical media piracy remained the single largest type of IPR
violation in Belarus during 2006. Pirated optical media is thenorm
in Belarus. Dozens of kiosks and markets in Minsk and
elsewhere in the country openly sell pirated media (software, DVDs
and CDs) at low prices. Pirated media was routinely sold in state-
owned stores. Although prices in Minsk for pirate DVD movies
doubled over the year, from around 9,000 rubles (USD 4.5) to around
18,000 rubles (USD 9),many movies were available on DVD before they
appeared in regional theaters. In some cases American movies were
available on DVD in Belarus before being released in theaters in the
U.S. An English-language version of "Children of Men" (2006),for
example, was available on DVD nearly a month before its U.S.
release.


4. Several vendors, mainly the Minsk chain "Ministry of Sound,"
claimed to sell only licensed media. While post cannot comment
whether they held to this, prices in these stores were certainly
much higher than elsewhere in the country (for example, a new
Madonna CD sells at the Ministry of Sound for BYR 55,000, or USD
25.60, compared to BYR 4,000/USD 1.86 at most other stores). Other
major stores sold some older DVDS at prices comparable to U.S.
retailers. For example, Poloff observed Harry Potter and the
Prisoner of Azkaban" (2004) and "Derailed" (2005) on sale in two of
Minsk's recently-opened hypermarkets and in "The Sixth Floor," a
music shop widely-known to have sold pirated material in the past,
for BYR 22,500 (USD 10.50). However, it is doubtful whether more
expensive media meant legal media. In the same stores, Poloff also
noted a DVD of the movie "The Guardian" (2006) was available in
Minsk shortly after the movie was released in theaters in the U.S.


5. The availability of pirated software and music also persists
throughout Belarus. The latest Microsoft Windows and Office
versions were available for an average of 5,500 rubles (USD 2.75)
in Minsk markets. Other expensive commercial software, such as
Autocad, and popular computer games were available for the same
price. Poloff also noted that the computer game "Civilization IV,"
which usually retails for USD 40 or more, was widely available for
BYR 7,700 (USD 3.75). Regardless of content, music and software CDs
generally sell for 8,000 rubles or less per disc. In February 2007,
software industry sources estimated that counterfeit copies made up
more than 90 percent of the software in use in Belarus.
Unsurprisingly, Microsoft representatives related to post that its
software sales in Belarus are less than two percent of sales in
Ukraine, despite the ubiquity of Microsoft software in Minsk stores.
Most of this pirated optical media is believed to be imported from
the Moscow region of Russia, with smaller amounts coming from
Ukraine.

Use/Procurement of Government Software
--------------


6. There is no presidential edict or other regulation requiring
government-purchased software to comply with international
agreements. During the year Poloff spoke with representatives of
domestic and foreign software companies who complained that the GOB
generally will not pay for software licensing or technical support.
They claim GOB officials do not understand why software is more
expensive than hardware. Government officials have acknowledged
that there is currently no law in Belarus recognizing software
copyrights. Software companies hoping to prevent sales of pirated
software in Belarus must make a specific application to stop the
piracy with the government; post has no evidence of any such
application being made during the year.

TRIPS Compliance
--------------


7. In August 2005, the Council of Ministers passed Decree 871,
"Confirming the Position on Interaction of Republican Organs of
State Governance and Law Enforcement in the Realm of Intellectual
Property," (the decree can be found, in Russian at
http://pravo.by/webnpa/text_txt.asp?RN=C20500 871). This decree
calls for various government organs to cooperatively enforce
legislation on IPR protection. Specifically, it calls for joint
action by the GOB on studying international IPR norms; conducting
joint events and seminars; exchanging information and analysis; and
carrying out joint checks for IPR violations. The decree also
designates the IPR responsibilities for the Ministries of
Architecture and Construction; Internal Affairs; Health;
Information; Culture; Education; Industry; Communications;
Agriculture; Trade; and Economy; as well as the State Committees on
Science and Technology; Customs; Earth Resources, Geodesics and
Cartography; Standards and Certifications; and law enforcement
bodies.


8. In July 2006, the GOB reported to post that the Council of
Ministers had drafted another decree, "Confirming the State Program
for the Protection of Intellectual Property Rights in the Republic
of Belarus for the Years 2007-2010." This decree was ostensibly
aimed improving the effectiveness of IPR enforcement organs and
strengthening IPR legal protections. However, Post knows of no new
IPR-related legislation during 2006.


9. The NCIPR failed to provide most information to the questions in
ref C, para 16 C, TRIPS Compliance. While the GOB did report in
mid-2006 that customs authorities interdicted 135 IPR violations
totaling BYR 113 million (USD 52,803) from 2004 to 2005, Post still
waits for 2006 statistics on border seizures and investigations.

Enforcement
--------------


10. According to official GOB statistics, Belarusian law
enforcement uncovered 70 crimes under Article 201 of Belarus
Criminal Code ("Violation of Authorship, Literary, Invention, and
Patent Rights") and 436 administrative violations and seized more
than 60,000 units of counterfeit audiovisual products. While
credible sources reported that the number of raids increased in
2006, they tended to be aimed at small-scale retailers instead of
production facilities. For example, opened in October 2004, the
Vigmaplast optical disc replication plant near Minsk continues to
operate two lines with a capacity of seven million discs per year.
Meanwhile, no official information on criminal proceedings or
disposition of equipment resulting from the closure of the Brest
Armita CD plant in August 2002 was provided during 2006.



11. Furthermore, GOB law enforcement remained hamstrung by several
deficiencies in Belarusian law. First, border officials lacked ex
officio authority to seize illegal material and to initiate their
own investigations. Second, administrative agencies lacked ex
officio authority to undertake investigations. Third, law
enforcement agencies were not permitted to confiscate and destroy
equipment used for the manufacture of pirated material. Fourth,
such agencies were not authorized to conduct ex parte searches of
end-user pirates. Fifth, there are no laws prohibiting the purchase
or use of pirated software. Finally, the current anti-circumvention
and copyright management information provisions of Belarus' 1998
Copyright Law do not conform to World Intellectual Property
Organization (WIPO) digital treaties with respect to the
manufacture, importation, sale, distribution, or other trafficking
in devices or services that are designed to circumvent technological
protection measures.

Treaties
--------------


12. Belarus has been a WIPO member since 1970 and is a party to all
relevant IPR treaties, including the Berne Convention for the
Protection of Literary and Artistic Works (1997),the WIPO Copyright
Treaty (2002) and the WIPO Performances and Phonograms Treaty
(2002),as well as a number of IPR agreements under the framework of
the Commonwealth of Independent States. In its response to the 2006
Special 301, the GOB boasted that under Article 20 of Belarus' 2000
law, "On Normative Legal Acts," these international treaties had the
"force of law" in Belarus. However, in many cases the GOB appeared
unable or unwilling to comply with even the smallest WIPO
recommendations. For example, in its 2006 answers to the
"Questionnaire on the Implementation of Paragraph 12(a) of WIPO
Standard ST.10/C," the NCIP admitted that it would not conform to
the WIPO system of patent application numbering during first filings
by the end of year. Moreover, NCIP failed to answer questions
relating to its compliance with said system in certificates of
priority.

Training
--------------


13. On a positive note, Belarusian cooperation with the WIPO
appeared to improve significantly, particularly in the area of
intellectual property (IP) education and training, since the GOB
created the Training Center of Intellectual Property within the
NCIPR in 2004 and the Interagency Advisory Board on IP Education in

2005. By September 2006, the WIPO reported that approximately 2,000
people had participated in IP seminars and workshops offered at the
Training Center. [Note: During a visit to the U.S. in November
2006, Belarus' Head of High Technology Park Administration Valeriy
Tsepkalo invited Tanya Shuster, Director of Business Information for

SIPDIS
the Newly Independent States of U.S. Department of Commerce, to
attend a workshop on high-technology IPR protection at the Training
Center. End note.]


14. In addition, WIPO noted that the GOB introduced courses in
"Fundamentals of Intellectual Property Management" in higher
education and specialized secondary-education institutions for the
2006/2007 academic year. Moreover, the WIPO lauded GOB cooperation
during WIPO education and training conference that hosted 300
participants from 20 countries in Minsk between May 22 and 25. On
February 1, 2007, while meeting with WIPO Director General Kamil
Idris in Minsk, President Lukashenko announced plans to set up an IP
center modeled after the WIPO Worldwide Academy in Geneva.
Meanwhile, industry sources report Belarusian authorities are
planning to hold an IP conference in May 2007 but have not
determined the sponsors and participants.

Stewart