TUNISIA: 2007 SPECIAL 301 REVIEW: EMBASSY INPUT

UNCLAS SECTION 01 OF 04 TUNIS 000271

SIPDIS

SENSITIVE
SIPDIS

NEA/MAG FOR HOPKINS AND HARRIS, EB/CBA (WINSTEAD)
STATE PASS USTR (BELL),USPTO (ADLIN)
USDOC FOR ITA/MAC/ONE (NATE MASON),ADVOCACY CTR (JAMES),
AND CLDP (TEJTEL)
CASABLANCA FOR (FCS ORTIZ)

E.O. 12958: N/A
TAGS: ETRD KIPR ECON TS
SUBJECT: TUNISIA: 2007 SPECIAL 301 REVIEW: EMBASSY INPUT

REF: A. STATE 07944


B. TUNIS 212

C. 06 TUNIS 2771

D. 06 TUNIS 2424

E. 06 TUNIS 2140

F. 06 TUNIS 1818

G. 06 TUNIS 1741

H. 06 TUNIS 1590

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Summary
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1. (SBU) Post recommends that Tunisia not be included on the
2007 Special 301 Watch List In 2006 and early 2007, Post has
noted a marked change in attitude towards the protection of
intellectual property rights (IPR) among GOT officials, legal
experts, local artisans, and business people. IPR is now
considered as a legal tool for the protection of a product
and as an incentive to stimulate economic development. An
inter-departmental enforcement task force has stepped up its
efforts to combat piracy. There have been an increased
number of raids, seizures, and closure of establishments
selling illegal optical disks and tapes. The GOT ended its
"correlation system" for pharmaceuticals on January 1, 2007,
opening the way for US pharmaceutical companies to sell their
products locally. While Post continues to press the GOT for
additional improvement in Tunisia's IPR regime, the many
positive steps taken to date (reftels) demonstrate that
Tunisia is headed in the right direction. Post believes that
placing Tunisia on the Special 301 Watch List would be
counterproductive to progress being achieved. End Summary.

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Enforcement Efforts
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2. (U) Post's constant advocacy for better IPR enforcement,
as a prerequisite for improving the local business climate,
has helped to encourage the GOT to implement a strategy to
combat IPR violations in the marketplace. Post has
repeatedly demarched involved Tunisian authorities to
implement a strengthened IPR regime. Post has also assisted
the Commercial Law Development Program (CLDP) and the US
Patent and Trademark Office (USPTO) in tailoring technical
assistance projects (approximately five CLDP sponsored and
six USPTO sponsored in 2006) to support this objective. Post
believes that GOT participation in said programs has created
an improved IPR protection environment and the will for a
more stringent IPR regime.


3. (U) Over the past year the GOT has undertaken legal
measures and administrative actions to address the problem,
including amendments to the Customs law and the law on
copyrights. In June 2006, an inter-departmental commission,
with representatives from the Ministry of Culture, Ministry
of Commerce and Handicraft, Customs, Ministry of Interior,
the Ministry of Communication Technologies, and the Organisme
Tunisien de Protection des Droits d'Auteurs (OTPDA),was
formed and tasked with improving IPR enforcement. OTPDA has
devised an action plan to combat pirated products and working
groups have been set up to survey the main problem areas
related to IPR enforcement. In June 2006, the GOT also
formed an interagency brigade composed of agents from
different departments (police, customs, and economic control)
that enforces and implements IPR laws. Music suppliers,
whether national or foreign, are subjected to strict
oversight and an authorization will now be required for the
reproduction of music. More than four million counterfeit
products were seized in 2006 during raids on various
establishments. Approximately 700 raids/control operations
were conducted during 2006 along with 4,300 visits to
targeted industrial sectors. The majority of counterfeit
products seized in Tunisia are related to health-care,
body-care, automotive spare parts, electronics, and electric
household equipment sectors.


TUNIS 00000271 002 OF 004



4. (U) Programs to educate consumers and manufacturers on
the importance of IPR protection also occur more frequently,
with improved content, including a national seminar sponsored
by the local newspaper as-Sabah that invited local
authorities (OTPDA, INNORPI, Customs) and private sector
representatives to discuss the IPR situation and the cost to
the economy of IPR violations. Public information campaigns
have included radio and print media advertisements on the
importance of respecting IPR. Private television has also
aired programs highlighting the illegality of CD/DVD piracy
to increase public awareness. With increasing public
awareness of the economic and detrimental effects of
counterfeit products, Tunisians who have been victims of
counterfeiting are now pressuring the GOT to enact stronger
laws and penalties to resolve the problem. For example, the
pirating of two local movies, "Making Off" and "VHS
Kahloucha," and their distribution before the scheduled
opening in movie theaters provoked strong reactions from
Tunisian movie makers who launched an IPR awareness campaign
and who are lobbying GOT authorities for stronger anti-piracy
measures.

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TRIPS Compliance - Laws and International Agreements
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5. (SBU) The GOT states it is in compliance with the letter
of the TRIPS agreement as of January 1, 2005. The GOT
affords patent protection to patents registered in Tunisia.
GOT ministries have also issued administrative regulations
that enhance the protection of data exclusivity, submitted in
the course of patent or marketing license application.
Tunisia has withdrawn from the Madrid Agreement concerning
International Registration, and consequently requires that
trademarks be registered in Tunisia to receive full
protection. Patents, designs, and industrial models are also
protected when registered with the National Patent Office.


6. (U) Tunisian Copyright Law was promulgated in Law No.
36/1994. Tunisia is a member of the Berne Convention for the
Protection of Literary and Artistic Works. In addition to its
national laws, Tunisia is a signatory of many international
conventions related to IPR, including: WIPO treaties, WTO
TRIPS, UCC and UPOV, Paris Convention Regarding Trademarks,
the Nice Agreement Concerning the International
Classification of Goods and Services and the Treaty on the
International Registration of Audiovisual Works. Copyrights
are registered with the Organisme Tunisien de Protection des
Droits d'Auteurs (OTPDA). Tunisia is also a member of the
Hague Agreement of November 6, 1925 for the International
Registration of Designs and Industrial Models. Designs and
industrial models are protected through registration with the
Institut National de la Normalisation et de la Propriete
Industrielle (INNORPI). The Civil Court prosecutes all
violations and is entitled to confiscate revenues and
counterfeit copies. New legislation now permits customs
officials to inspect and seize goods if copyright violation
is suspected.

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Government Use/Procurement of Software
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7. (SBU) Post has previously reported that use of
unauthorized software on government (and personal) computers
in Tunisia is widespread with only limited agencies using
authorized copies. However, during the Microsoft Government
Leaders Forum in South Africa July 11-12, the GOT and the
Microsoft Corporation signed a partnership agreement (Ref D)
that commits the GOT to using licensed software. As part of
the agreement, Microsoft will help the GOT to upgrade and
modernize its computers and networking capabilities. In
turn, the GOT agreed to purchase 12,000 licenses to update
government computers with
official Microsoft software, rather than the pirated versions
that have been commonly used. The agreement also includes
the establishment of IT training centers, equipped with

TUNIS 00000271 003 OF 004


legitimate computers and software, to educate students.
Microsoft will establish a Microsoft Innovation Center in
Tunisia for developing local software production capacity by
providing training and consulting services to software
developers. Additionally, future GOT tenders for IT
equipment will specify that the equipment must be Microsoft
compatible, a requirement that was previously prohibited by
the Tunisian open software policy.

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Optical Media
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8. (U) While the GOT has taken significant positive steps,
additional progress is needed in the optical media and
pharmaceutical sectors. Post has raised the issue of optical
media piracy at the highest Ministerial and working levels.
In late October 2006, French retailer, Carrefour, withdrew
pirated CDs and DVDs from its shelves (Ref C). In addition,
Carrefour now includes a copyright declaration in its
advertisements warning consumers against unauthorized
reproduction of these ads. Ministry of Commerce (MOC)
officials, whom EconOff contacted about this positive action,
indicated that Carrefour stopped selling counterfeit products
as a result of a directive from MOC. MOC officials told
EconOff that on January 15, 2007, the MOC sent warning
letters to major retailers (i.e. Geant and Monoprix). The
letters delineated the laws being violated by each retailer
and asked them to cease the sale of pirated goods. Thus far,
Carrefour is the only major retailer to abandon the sale of
pirated goods. Several other major retailers, such as Geant
and Monoprix, have continued to stock pirated DVDs and CDs.
The MOC officials told EconOff that if these retailers do not
voluntarily stop selling counterfeit products, the MOC's next
step will be the seizure and the destruction of the
counterfeit products. The Ministry of Culture has also
closed 98 establishments selling illegally recorded tapes and
CDs as part of its anti-piracy plan.

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Pharmaceuticals
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9. (SBU) Following Post's engagement in 2006, the Tunisian
Ministry of Health (MOH) issued an administrative circular
that suspends the "Correlation System" on January 1, 2007.
The "Correlation System" allowed for the selective exclusion
of foreign-produced drugs from the Tunisian market place when
sufficient, locally manufactured quantities (generics)
existed. The termination of this "Correlation System" is a
positive step. However, the fact that the termination is not
retroactive, and that the GOT correlated approximately 150
additional drugs a few days before issuing its circular
terminating the "Correlation System" presents a problem
(septel). The MOH is unwilling to provide a copy of this
list of newly correlated drugs but US pharmaceutical
representatives indicate that US drugs are included.


10. (SBU) On February 9, Ambassador and EmbOffs met with
officials of Tunisia-based US pharmaceutical companies to
seek their views on the "Correlation System" termination and
on the enforcement of the 2005 MOH revised administrative
Circular No. 40 regarding data exclusivity and data
protection. While the officials said they were happy to see
the end of correlation, most of them had drugs on the list of
newly correlated drugs. The companies affected, have begun
to appeal the correlation of their drugs. (Note: Ambassador
met with the Minister of Health on January 24. EconOff
followed up with the Director General of the Pharmacy and
Drug Department on February 20. Post is working closely with
affected companies to achieve the withdrawal of respective
drugs from the correlation list. End Note.)

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Data Protection
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TUNIS 00000271 004 OF 004



11. (SBU) Regarding data exclusivity and data protection,
the US pharmaceutical community remains unconvinced that GOT
adequately complies with these TRIPS tenets. They criticized
the absence of a legal framework regarding the regulation and
the management of pharmaceutical policies in Tunisia.
Decisions, rules and procedures are implemented through
administrative circulars and the US pharmaceutical companies
would like to see these circulars enacted into law. Circular
No. 40 (dated May 3, 2005) establishes the required framework
for data protection concerning new pharmaceuticals and
adheres to TRIPS article 39 (Note: Language used is
identical to TRIPS article 39. End Note.) The circular
protects data against any divulgence unless necessary for
public health. Circular No. 40, article 3 grants a five year
term of data protection in Tunisia. MOH officials stress
that generics are not allowed until after the five year
protection period has expired. The data protection period
starts from the date of deposit related to the application
file for marketing authorization (Autorisation de Mise sur le
March - AMM). The marketing authorization process is
administered by the Pharmacy and Drug Department (Direction
de la Pharmacie et du Mdicament - DPM). However, while
adamantly insisting that GOT is in compliance with its WTO
TRIPS obligations, the DPM Director General recently told
EconOff that the DPM cannot refuse marketing authorization
requests from Tunisian manufacturers of generics, if the data
used to produce the generic is in the public domain. In her
words, the DPM/GOT is only responsible for protecting data
which is in its possession and not data that is publicly
available. (Comment: Statements such as this lead Post to
agree with the local US pharmaceutical community's contention
that perhaps TRIPS article 39.3 is too vague and that GOT
officials do not fully understand the concept of "unfair
commercial use." This is an area that requires further focus
and education to achieve practical application of TRIPS
article 39.3 and/or GOT Circular No. 40. End Comment.)

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Recommendation and Conclusion
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12. (SBU) Although Tunisia was not placed on the 2006
Special 301 Watch List, the GOT took a number of positive
steps to strengthen and improve the IPR regime in 2006.
Therefore, placing Tunisia on the 2007 Special 301 Watch List
would be counterproductive at this time. While there is
still areas for improvement in Tunisia's IPR regime, the
positive GOT engagement and efforts in 2006, as well as
strong cooperative IPR programs with USG agencies demonstrate
that Tunisia is headed in the right direction. The GOT has
also met with and addressed IPR issues with private entities
(i.e. Microsoft). Continued engagement via targeted USPTO
and CLDP programs would be more beneficial and more apt to
produce the desired results than a Special 301 listing.

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GOT Submission
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13. (SBU) The Ministry of Foreign Affairs (MFA) has
indicated that GOT would have a submission for the 2007
Special 301 Review process but that it could not meet the
February 12th deadline. Post will forward GOT submission
when received.
GODEC