USTR VISIT MAKES PROGRESS ON IP PROTECTION, TIFA AGENDA

UNCLAS SECTION 01 OF 03 BANDAR SERI BEGAWAN 000043 SIPDIS SIPDIS SENSITIVE DEPARTMENT FOR EAP/MTS DEPARTMENT PASS TO USTR FOR WEISEL, BAE AND EHLERS DEPARTMENT PASS TO USPTO SINGAPORE FOR FCS AND DHS BANGKOK FOR FCS:NESS E.O. 12958: N/A TAGS: ETRD KIPR PREL BX SUBJECT: USTR VISIT MAKES PROGRESS ON IP PROTECTION, TIFA AGENDA Ref: A) 07 Bandar 276 B) 07 Bandar 165 C) 06 Bandar 12 -------------- SUMMARY -------------- ¶1. (SBU) Assistant USTR Barbara Weisel opened the door for closer Government of Brunei cooperation with the USG and rights-holders on enforcement of intellectual property rights. She also suggested that the GoB submit comments for the Special 301 process by the February 29 deadline and that it could review industry submissions before drafting its own response. Continuing a dialogue under the U.S.-Brunei Trade and Investment Framework Agreement (TIFA),Weisel asked for greater transparency on halal food certification and also encouraged Brunei to join the multi-chip integrated circuit agreement (MCP). In an interagency meeting and in side meetings conducted by USPTO Senior Director Peter Fowler, the GoB representatives discussed how to take better advantage of USG-supported training and agreed to reach out to rights holders to coordinate new enforcement initiatives. END SUMMARY. -------------- IPR Enforcement - Way Forward -------------- ¶2. (SBU) In a brief visit to Brunei January 19, Assistant USTR Barbara Weisel met with Ministry of Foreign Affairs and Trade Permanent Secretary Dato Lim Jock Hoi to press for further improvement in Brunei's IPR enforcement efforts (see also refs A & C) and advance our dialogue on issues under the U.S.-Brunei Trade and Investment Framework Agreement (TIFA) (ref B). Dato Lim brought in representatives from the Police, Customs, and Attorney General's Office to an interagency meeting to demonstrate the seriousness with which the GoB is now addressing IPR enforcement issues. AUSTR Weisel was joined by Rachael Bae of USTR, Peter Fowler, Senior Counsel for Enforcement at the U.S. Patent and Trademark Office's Global Intellectual Property Academy (GIPA) and DCM. ¶3. (SBU) Dato Lim opened the interagency meeting noting that as Brunei seeks foreign direct investment, as well as to expand its high technology and finance industries, it will need to do better on IPR protection. Lim added that Brunei wanted to identify common concerns wQh the USG and set a plan of action. ¶4. (SBU) Attorney General's Chambers (AGC) representatives briefed that a draft law to address gaps in current legislation was under review. The U.S. side noted that meeting TRIPs requirements was no longer sufficient, as international best practices have advanced to reflect the technological changes (i.e. the digital revolution) that create new opportunities for IP fraud, as well as enforcement. AGC reps stated that the draft law under consideration would add a range of best-practice provisions, including setting a volume threshold for a presumption that production was being made for resale; adding documentation and jurisdictional presumptions; and allowing police to seize reproduction equipment. Noting the small staff working IPR issues, the AGC representatives welcomed technical assistance from the USG. However, the GoB representatives did not immediately accept a USG offer to review the draft law and provide expert commentary. ¶5. (SBU) Responding to U.S. questions about industry complaints of pirated optical disks (OD) being produced in Brunei for export, Police asserted that they have no information about mass production of disks in Brunei, but would follow up on any specific intelligence on this the USG or industry could provide. AGC and Police representatives noted that no IPR complaints had been filed for all of calendar 2007, and urged that rights holders come to Brunei and work with law enforcement to protect their assets. They are aware that some retail shops and individuals are burning ODs on a small scale for retail sale. However, a lack of complaints filed by rights holders limits police authority to initiate enforcement actions under current law. AGC reps reinforced that without assurances of industry cooperation, the AGC would be reluctant to invest resources prosecutions that have limited chances for success. ¶6. (SBU) USTR's Bae noted that recent industry filings under the Special 301 process would make it possible that the next 301 report could mention Brunei. U.S. reps noted the February 29 deadline for the GoB to respond to any 301 filings by industry. Bae and GIPA's Fowler urged that the GoB amend its laws to give police greater ex-officio authority to seize pirated goods. To encourage cooperation, industry would want to see that there is a strong BANDAR SER 00000043 002 OF 003 possibility of success in seizing counterfeit goods, prosecuting violators, and more strongly penalizing the convicted to deter future violations. Fowler observed that any legal changes should also allow for so-called collecting societies representing broad groups of rights holders to legally represent and initiate investigation and prosecution of individual violators. ¶7. (SBU) GoB reps responded that they would welcome USG help in encouraging industry representatives to come to Brunei. They stated that police and customs could accept as sufficient to initiate enforcement a simple letter from the rights holder asserting rights to specific OD titles (or other products),and for Customs, also indicating authorized distributors. Authorities could detain goods on this basis, but would need to be assured that the rights holder would quickly provide the technical and documentary assistance necessary to begin a legal case against a suspected violator. It was now Brunei practice to bring in a prosecutor into the earliest stages of investigation to ensure that law enforcement actions would lead to a prosecutable case. ¶8. (SBU) AUSTR Weisel wrapped up the IPR discussion by noting that improving communication with rights holders was critical to improving enforcement and that both sides could take concrete steps to improve on the current situation. She challenged that as the USG looks to deepening its trade relationship with Brunei, improved IPR protection will be essential. Weisel suggested that a follow up, detailed discussion on IPR issues be held in the near future and said the U.S. would look at adding such a discussion as part of or in parallel to the next U.S.-Brunei TIFA meeting in Washington. Dato Lim agreed that a follow up discussion would be helpful. Catching IPR violations at the border through Customs action offered the best, immediate step forward, but he noted that cooperation with rights holders remained essential. -------------- Training Opportunities -------------- ¶9. (SBU) At the interagency meeting and in side meetings conducted by USPTO GIPA Senior Counsel Fowler, the GoB requested capacity building assistance, including training for Police, Customs, and Attorney General's Chambers staff. Fowler offered to develop an integrated training plan, including specific bilateral training, as well as regional training for Brunei and its ASEAN partners. Dato Lim suggested that Brunei might be able to host some of the regional training events to maximize GoB agency participation. -------------- Urge Joining MCP -------------- ¶10. (SBU) Weisel recapped the initiatives discussed under the U.S.-ASEAN TIFA at the Senior Officials Meeting recently in Singapore, stating that ASEAN members joining the Multichip Integrated Circuit Agreement (MCP) could also move forward bilaterally. Noting that the MCP was the next generation ITA, Weisel said that the USG goal was ultimately to bind tariffs on these products at zero. Dato Lim noted that Brunei was not party to the ITA but adhered to its spirit in practice. He said that Brunei would review the MCP internally, adding that ASEAN was discussing whether its members should wait and, if all agree, join as a group. -------------- Need Greater Clarity on Halal Rules -------------- ¶11. (SBU) Dato Lim briefed that he would be the technical lead for Brunei's delegation to the WTO Trade Policy Review (TPR). Brunei had completed its report on time in October, but Lim expected to provide several updates at the TPR, given the impact of the global credit crunch and the rising interest in the role of sovereign wealth funds. ¶12. (SBU) Weisel stated that the United States would be likely to raise agricultural policy, noting that Brunei's rules on halal food product standards were difficult to understand. Lim said that Brunei considers halal to be a phyto-sanitary issue (SPS) but had also notified the WTO of its standards as a technical barrier to trade. Lim assured that the GoB will apply halal rules uniformly and in a non-discriminatory manner, and that the rules will be transparent and available to all interested parties. Lim plans to bring representatives from the Ministry of Religious Affairs, as well as from the Agriculture and Customs Departments to the TPR to help explain Brunei's halal food policies. BANDAR SER 00000043 003 OF 003 -------------- COMMENT: Follow up needed -------------- ¶13. (SBU) Weisel's visit takes us a step further in our dialogue (ref A) to improve the GoB's enforcement of intellectual property rights. This is the first time we have heard all the key GoB agencies speaking with the same voice on IPR issues. In a follow up to this visit, DCM introduced Microsoft's resident representative to senior Royal Brunei Police officials to help them begin to work more closely with on enforcement activities. We believe that further progress on IPR enforcement will depend, to a large extent, on our continuing to help the GoB rebuild relationships with rights-holders so that both sides will feel confident their interests are protected and much-needed enforcement activities can be re-initiated. ¶14. (U) USTR cleared this message. SKODON