JAMAICA: 2008 SPECIAL 301 REVIEW REPORT

UNCLAS KINGSTON 000147 SIPDIS SENSITIVE SIPDIS STATE FOR EEB/TPP/IPE (JGROVES AND (JBOGER) WHA/CAR (JTILGHMAN),WHA/EPSC (VDEPIRRO) DEPT OF COMMERCE FOR ITA/MAC/OIPR FOR CASSIE PETERS DEPARTMENT PLEASE PASS TO USPTO, USTR SANTO DOMINGO FOR FAS AND FCS E.O. 12958: N/A TAGS: ECON KIPR USTR ETRD XL JM SUBJECT: JAMAICA: 2008 SPECIAL 301 REVIEW REPORT REF: A. SECSTATE 9475 ¶B. 07 KINGSTON 221 The following is Post's response to reftel request for input for the Special 301 Interagency Review Process. SUMMARY AND RECOMMENDATION -------------- ¶1. (SBU) Embassy Kingston recommends that Jamaica remain on the Special 301 Watch list until it is able to pass a World Trade Organization (WTO) TRIPS-consistent patent law. Its trademark and copyright regimes meet international standards, and enforcement efforts over the past year have been commendable. Significant progress is being made on training judges and law enforcement officials in protecting intellectual property rights (IPR). The Government of Jamaica (GOJ) also is taking measures to sensitize students to the ills and penalties of dealing in counterfeits. Ministry officials and the Executive Director of the Jamaica Intellectual Property Office (JIPO) have renewed efforts to pass the Patents and Designs Act. However, to date the legislative process has been slow. Once the legislation is passed, which could be before the end of 2008, Post would recommend removing Jamaica from the Special 301 Watch List. The GOJ has made significant progress in advancing IPR protections and enforcement over the years. The only unresolved weakness is Jamaica's failure to pass the proposed Patents and Designs Act. In the past, Jamaica has faced challenges in receiving adequate assistance from rights-holders, including those in the U.S., when it seeks to prosecute counterfeiters. The small market share in Jamaica and the relatively small scale of the piracy encourage patent holders to focus their efforts in other markets. The GOJ has developed new partnerships with the private sector to help improve the level of assistance it receives when prosecuting cases. End Summary and Recommendation. LEGISLATION -------------- ¶2. (SBU) Jamaica is on the Watch List primarily because its intellectual property rights laws do not meet WTO TRIPS standards. Jamaica has had TRIPS-compliant trademark and copyright acts in place since 1999. The Jamaican Parliament approved a bill to protect Geographical Indications, but has �A;yet to pass implementing regulations. The new patent, plant variety, and industrial design laws are finally starting to make progress. Minister of Industry and Commerce Karl Samuda met with JIPO officials and has given his support to pushing the new Patent Laws in 2008. Samuda has been a long time advocate of bolstering IPR protections in Jamaica. JIPO has retained new in-house legal counsel to shepherd the legislation through Parliament. JIPO has a financial incentive in seeing the new law passed as it will modernize the fee system for patents, which dates back to a 1857 Patent law, and bring much needed revenue to the office. GOJ officials blame the long delay on the lack of personnel, changes in key persons within the bureaucratic process, and the need to pass other pressing legislation. JIPO commented that the fact that the law has taken so long to pass is an embarrassment for the country, which they intend to correct this year. ¶3. (SBU) Embassy Kingston has continued its lobbying efforts over the past year and Emboffs have met with JIPO officials. On January 31, emboffs met with JIPO Executive Director, Carol Simpson, to discuss the current activities related to Intellectual Properly Rights enforcement and the status of the Patents and Designs Act. The Patent bill is advancing through the legislative process and is currently undergoing a public notice and comment period. It will then be sent to the Legislative Committee of Parliament. According to Ms. Simpson, the new Chief Parliamentary Counsel Albert Edwards has extensive knowledge of patent and trademark law and is expected to drive the process. JIPO believes it is highly likely that the Act would be tabled in Parliament before the end of legislative year in September. Once the law is passed, the GOJ said it will embark on a public awareness campaign regarding the new laws. ENFORCEMENT -------------- ¶4. (SBU) The GOJ had several enforcement successes in 2007, with the police seizing illegal goods from a number of store owners, street vendors, and distributors. There are 20 piracy cases now before the courts across the island; some cases include larger retail shops. Eighty percent of the IPR cases involve counterfeit CD music; only a few cases involve counterfeit DVDs. JIPO has not encountered any cases involving counterfeit computer software. The various bureaucracies within the GOJ have internal procedures to prevent the misuse of software lincenses or the use of counterfeit software. JIPO is working with the courts to soon list these cases on their website for increasing public awareness. Jamaica has tried to be aggressive in its enforcement efforts; JIPO believes this has acted as a deterrent, and those who once dealt in counterfeits are increasingly switching to genuine products. JIPO lawyers attend court proceedings to provide legal support and have produced a CD-ROM on all IP laws as a resource for judges and their clerks. ¶5. (SBU) The officers from the Jamaica Constabulary Force (JCF),which has an IPR unit, seized a major shipment illegal CDs, DVDs, an audio cassettes. The case has progressed successfully through the courts. JIPO is planning to have a major public destruction event of the counterfeit items this summer and will invite Embassy officials. JIPO is hoping the high profile media event will raise awareness about the ills of counterfeits and also serve as a deterrent to other counterfeiters. JIPO has worked to educate judges about the importance of IPR issues through training workshops. This includes a proposed judges training workshop in conjunction with WIPO to be held this year. The training will bring in a judge from South Africa and a judge from the United Kingdom who are experienced in overseeing IPR cases. ¶6. (SBU) JIPO commented that in some cases prosecutions were hampered by foreign rights-holders being unwilling to invest time and effort in assisting in the prosecution of offenders, largely because of the small amount of market share for genuine products on the island. JIPO again cited a case in which they sought the assistance of the Motion Picture Association of America (MPAA),needing an affidavit in order to see the prosecution through. They maintained that they never heard back, and had to drop the case. This issue appears to have been resolved by JIPO partnering with Entertainment Homes, a new private sector entity that has negotiated an agreement with the MPAA for licensing media. Entertainment Homes has the authority to act on behalf of the MPAA in enforcing IPR. JIPO believes this arrangement will stop retail movie rental businesses that were renting genuine movie DVDs, but were stamped "not to be used for rental outside of the United States." JIPO says it already has seen an improvement on this issue since the emergence of Entertainment Homes. ¶7. (U) The GOJ has been very keen to take advantage of training courses offered by the USG, in particular the enforcement academies offered by the United States Patent and Trademark Office (USPTO). In 2007, three Jamaicans attended training in Alexandria, Virginia, and Post continues to seek nominations of qualified individuals for such courses. As always, a lack of resources means that the GOJ is unable to send personnel for training at its own expense. ¶8. (U) Action Request: JIPO's Simpson said she was looking at holding a major training conference once the proposed Patents and Designs Act is passed. They requested USG assistance in identifying judges and attorneys with the requisite skills and knowledge to present at a seminar. Post requests that EEB/IPE assist in identifying USG and/or private sector individuals with expertise in this area. Post point of contact is Economic Officer Nathan Carter (CarterNC@state.gov); please cc Elvis James (jamesem@state.gov). COMMENT -------------- ¶9. (SBU) Post believes that continuing presence on the Special 301 Watch List is required to encourage Jamaica to pass the Patents and Design Act. Nevertheless, Post believes that the GOJ makes a sincere effort to comply with its IPR obligations in other areas. Considering the severe financial limitations under which the GOJ operates, and given the vast resources that must be diverted to security issues, it is commendable that the GOJ makes the level of effort that it does. Given that these constraints are not limited to Jamaica, a regional training in the Caribbean by USPTO may allow the smaller economies to find funds to participate. At the same time, it would leverage the assets of USPTO: rather than funding various (and relatively few) participants to travel to Washington, a regional seminar in Kingston, for example, would allow more people to attend, and would contribute to efforts to raise the profile of the issue in the Caribbean. End Comment JOHNSON