2008 SPECIAL 301 REVIEW - GHANA

UNCLAS ACCRA 000219

SIPDIS

SIPDIS

DEPT FOR EB/TPP/IPE, JENNIFER BOGER
DEPT PLEASE PASS TO USTR FOR JENNIFER CHOE GROVES
USDOC FOR ITA/MAC/OIPR, CATHERINE PETERS

E.O. 12958:N/A
TAGS: ECON ETRD KIPR GH
SUBJECT: 2008 SPECIAL 301 REVIEW - GHANA

REF: STATE 9475


1. Summary: Ghana has made progress in recent years in protecting
intellectual property rights (IPR) under both domestic and
international law. Most domestic intellectual property laws have
been revised to become compliant with Trade-Related Aspects of
Intellectual Property Rights (TRIPS). The number of pirated and
counterfeit goods is rising, largely smuggled from countries in the
Far and Middle East. The government of Ghana provides limited
resources for IPR protection, but law enforcement institutions have
been increasingly active in working directly with the authorized
producers. Because of Ghana's progress in protecting IPR and the
government's responsiveness when U.S. companies in Ghana raise IPR
concerns, post recommends against 301 list placement for Ghana. End
Summary.

-------------- --------------
Production, Import, and Export of Counterfeit Goods
-------------- --------------


2. The production and export of counterfeit goods is negligible.
However, the import (usually through smuggling) of counterfeit goods
is on the rise. The Customs, Excise and Preventive Service (CEPS)
occasionally seizes and destroys smuggled goods but many still find
their way into the market.

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


3. Ghana has no central coordinating body for IPR enforcement. IPR
enforcement bodies are CEPS, the Judiciary, and the Ghana Police
Service. The Registrar-General's Department (RGD) registers all IP
rights except copyrights. The Copyright Office, within the Ministry
of Justice, registers copyrights.


4. CEPS seizes and destroys pirated and counterfeit goods only if
they have notification from either a court, the RGD, or the
Copyright Office. In November 2005, CEPS seized over 109 million
counterfeit Marlboro cigarettes smuggled from China. CEPS destroyed
the cigarettes in November 2006 in collaboration with Philip Morris
Inc. and after substantial advocacy from post. CEPS in 2008 signed
an MOU with the local organizers of a major African soccer
tournament in Accra to protect license holders of logos and mascots
of the event. This effort was largely successful. CEPS also has
ongoing agreements with companies like Unilever, where trademark
owners give clearance for imported items bearing their trademarks.
The Copyright office occasionally calls on the police to conduct
raids on sellers of audio and video materials.


5. There is no IP court, but a commercial court was established in
Accra in 2005 to try commercial cases including IP cases. The
commercial court judges have been trained to handle IP cases. Only
a few trademark, patent, and copyright infringement cases have been
filed in Ghana.

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


6. Piracy of protected optical media is known to take place,
although there is no reliable information on the scale of this
activity. Katamanto is a local market in Accra well known for
pirated audio-visual materials. It has been a major target for
raids by IP enforcement agencies.


7. Most of the optical media in Ghana are made in the Far East and
smuggled into Ghana through Togo. A monitoring unit was established
by the Copyright Office, housed within the Ministry of Justice, to
combat this problem. The administrator of the office believes that
the job of identifying genuine works would be easier if the
Copyright Office had a direct arrangement with the rights owners to
track the import and movement of products within the country.

--------------
Use/Procurement of Computer Software by GoG
--------------


8. There is no stated government policy to ensure that the use of
software complies with national and international standards of
copyright protection. There is widespread government use of illegal
software. Buyers are often unaware the software is illegal and
rights owners are not in Ghana to monitor replications. Three years
ago, Microsoft's office in Nigeria established a compliance office
in Ghana, working together with the Copyright Office to check
illegal use of its products. Some government institutions only
purchase from authorized dealers because of the support and training
that accompanies genuine products.
--------------
Data Protection
--------------


9. The Food and Drugs Board (FDB),the Environmental Protection
Agency, and the Ministry of Food and Agriculture are guided by the
Protection Against Unfair Competition Act, which includes protection
of pharmaceutical and agricultural test data. The FDB finds it
increasingly difficult to monitor the quality of similar products
entering the market from different countries and/or companies. It
plans to revise its mandate, which currently does not allow it to
track products to the original producer.

--------------
TRIPS Compliance and Domestic IPR Legislation
--------------


10. In the past five years Ghana's parliament has passed all six
bills designed to bring Ghana into compliance with WTO TRIPS
requirements. These are Copyright, Trade Marks, Patents,
Layout-Designs (Topographies) of Integrated Circuits, Geographical
Indications, and Industrial Designs laws.


11. Although these new laws have been passed, subsidiary
legislation (Legislative Instruments or LIs) is required to define
the procedures for IPR registration and enforcement. LIs under some
of the inadequate old laws are still in force pending formal
amendment. According to an attorney at the Registrar-General's
(RGD) office, registration of industrial designs (except textiles),
layout-designs of integrated circuits, and geographical indications
are not possible because there are no new LIs in place to enforce
them. A draft LI for the Copyright law has been prepared and is
expected to be placed before parliament by the end of February 2008.
The RGD expects to prepare a national policy on IP, review the
other five laws, and pass the accompanying LIs before the end of

2008.


12. In some cases the GoG has found ways to implement new IPR
protection without amending old LIs. For example, the Trademarks
Regulation LI 667 of 1970 is still in force because Section 53 (5)
of the new Trademarks Act 664 of 2004 requires that LI 667 be
officially amended, which has not happened. Nonetheless, the new
2004 law extends the registration of trademarks for goods to include
trademarks for services, which goes beyond coverage in LI 667. The
Registrar-General has been allowing the registration of service
trademarks since December 1, 2004.

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


13. In 2004, Ghana's parliament ratified the World Intellectual
Property Organization (WIPO) internet treaties, namely the WIPO
Copyright Treaty, and the WIPO Performance and Phonograms Treaty.
Ghana deposited its instrument of ratification with WIPO in August

2006.

--------------
Recommendation
--------------


14. Post recommends that Ghana not be placed on a 301 Watch List.
Ghana has passed laws to bring it into compliance with its
international commitments and the GOG is sensitive to IPR protection
needs, and while it should give the matter higher priority, the GoG
is eager to take advantage of training opportunities from USPTO and
has begun to agree to bear some costs associated with that training.
The government initiates raids on pirated goods and makes good
faith efforts to respond to IPR concerns raised by the United States
or U.S. companies in Ghana. For example, in the case of counterfeit
Marlboro cigarettes, the GOG addressed the problem to the
satisfaction of Philip Morris Inc. In addition, the market in Ghana
is small and local piracy has a limited impact on U.S. products.

Bridgewater