NICARAGUA: MIXED RESULTS ON POLICE IPR ENFORCEMENT

UNCLAS MANAGUA 001051 STATE FOR WHA/CEN, EB/TPP/IPE DEPT PLEASE PASS TO JUSTICE FOR OPDAT ROBERT LIPMAN STATE PLEASE ALSO PASS TO USTR FOR ANDREA MALITO TREASURY FOR SARA GRAY USDOC FOR 4332/ITA/MAC/WH/MSIEGELMAN USDOC PLEASE PASS TO USPTO FOR BARBARA MCCAFFREY SENSITIVE SIPDIS E.O. 12958: N/A TAGS: ECON ETRD KIPR USTR NU SUBJECT: NICARAGUA: MIXED RESULTS ON POLICE IPR ENFORCEMENT STRATEGY REFS: A) MANAGUA 225, B) 07 MANAGUA 2654 SUMMARY -------------- ¶1. (SBU) In 2008, the Nicaraguan National Police is implementing a strategy to improve intellectual property rights (IPR) enforcement that includes a public awareness campaign, training for staff, and raids against the producers and distributors of pirated goods. In addition, the police seek better cooperation with industry to combat piracy and trademark and copyright infringement. We share the concerns of the police and working-level Government of Nicaragua (GON) officials that recent reforms to the new Criminal Code undermine efforts to improve IPR enforcement. The GON has yet to convict, fine, or imprison any IPR offender this year. IMPROVING IPR ENFORCEMENT -------------- ¶2. (SBU) In 2008, the National Police has been implementing its strategy to improve IPR enforcement. The components of this strategy are a public awareness campaign against piracy, training for staff on the application of IPR laws and the detection of pirated goods, and raids and seizures of pirated goods and production equipment. The police conducted its public awareness campaign from January until March, targeting three open air markets in Managua where pirated goods are abundant. Police officers informed vendors of pirated goods that piracy is illegal and anyone caught producing and selling these products will be arrested and prosecuted. The campaign also attempted to dissuade customers from purchasing pirated goods and highlighted the adverse impact of piracy on the Nicaraguan economy. ¶3. (SBU) With regard to training, the police participated in two capacity building workshops this year. In February, Nicautor, an association that advocates IPR enforcement and protection for authors and composers, trained a class of 30 police officers and public prosecutors on IPR enforcement under the new penal code. The GON also organized a training course in July for 110 police officers in the Department of Leon on the new penal code. The Embassy has also arranged training for judges and patent and trademark officials. In May, the Embassy sent three judges on a U.S. Patent and Trademark Office (USPTO) IPR course. In September, we will send two GON officials responsible for patent and trademark protection to USPTO's course on the Madrid Protocol for trademark protection. ENFORCEMENT RESULTS -------------- ¶4. (SBU) As of July, the GON has conducted six raids. The police seized a total of 938 drums of bottled water in which the trademark rights of "Pura Fuente (Pure Fountain)" had been violated. The police also seized 80,000 blank CDs and DVDs and six recording units, 350,000 pirated music CDs and music video DVDs, and 12 computers, 46 televisions, and 3 multipurpose copiers. The monetary value of the seized goods is approximately $803,000. [Note: The police calculated the monetary value of the pirated CDs and music video DVDs based on the market price of 20 cordobas or $1.00 per disc. The sales price for blank CDs is five cordobas or 25 U.S. cents.] ¶5. (SBU) The Prosecutor General's Office indicted thirteen IPR offenders as of the end of June. Seven cases await adjudication by the courts. Six cases were dismissed for a lack of sufficient evidence. Dr. Leyla Prado, head of the Prosecutor General's IPU Unit, complained that the loss of key staff and budget cuts this fiscal year limited her unit's ability to participate in raids, conduct investigations, and file cases with the local courts. She added that there have been no arrests, convictions, or fines against any IPR offender this year. At the same time, she noted that there has been an increase in IPR related complaints, particularly trademark infringement infractions. INDUSTRY COOPERATION -------------- ¶6. (SBU) The police have sought improved cooperation with industry to combat piracy and other IPR crimes. On June 26, Econoff met with Major Francisco Obando, National Police Director for the Economic Crimes Unit. Obando stated that although Nicautor organized IPR training for the police in February, the police want more assistance from industry on detecting trademark and copyright infringement, and need better equipment, such as computers and scanners, digital cameras, and digital product code scanners, to enhance the Unit's capabilities. To facilitate the cooperation with industry, the Embassy will host industry and police representatives in a meeting on August 26 to discuss IPR enforcement and protection. CONCERNS ABOUT NEW CRIMINAL CODE -------------- ¶7. (SBU) Privately, Obando and Prado complained that reforms to the new Criminal Code weaken IPR enforcement. The National Assembly approved amendments to the Copyright Law in 2006 to add a provision that the Prosecutor General's Office could investigate an IPR crime ex oficio, without a formal compliant. The Criminal Code approved in November 2007 repealed this provision. [Note: In separate meetings with Embassy officials, Ministry of Trade, Industry and Development (MIFIC) officials have argued that the Procedural Criminal Code allow for ex-officio enforcement.] ¶8. (SBU) The National Assembly also weakened penalties for copyright violations in the new Criminal Code. In 2006, amendments to the Copyright Law stiffened penalties for IPR crimes, including fines ranging from 3,000 to 25,000 cordobas ($160 to $1,315) and prison sentences of up to two years. The new Criminal Code adopts aspects of Sweden's penal code to calculate the fine for an IPR offender based on one-third of that person's daily salary multiplied by 90 to 150, depending on the severity of the crime. The new Criminal Code also reduces prison sentences to a maximum of one year (Ref A). The new Criminal Code came into effect on July 9, 2008. ¶9. (SBU) Obando said the new Criminal Code restricts the police's ability to act independently because they must wait to receive a formal complaint about IPR violations before they can undertake a raid. He asserted that the police would like the flexibility to conduct surprise raids. Prado noted that her unit, the police, and some MIFIC officials have raised these concerns during interagency meetings. She added that her MIFIC colleagues have stressed that GON commitments made as a party to the United States - Central America - Dominican Republic Free Trade Agreement (CAFTA-DR) in 2006 were in line with Nicaragua's obligations as a member of CAFTA. Prado added that she and her GON colleagues are trying to persuade senior-level government officials to revert to the 2006 amendments, or introduce new legislation that is consistent with the country's CAFTA commitments. COMMENT -------------- ¶10. (SBU) The National Police is confident that its strategy will improve IPR enforcement, but so far this year the GON has not convicted, fined, or imprisoned any IPR offender. Although the police appear to be committed to improving IPR enforcement, we are concerned that the new Criminal Code limits the ability of the police to conduct raids and seize pirated goods. Meanwhile, it appears as if IPR protection continues to be a low priority for senior-level officials. End Comment. SANDERS