Philippines: 2008 Special 301 Report

UNCLAS SECTION 01 OF 05 MANILA 000497 SIPDIS SENSITIVE SIPDIS STATE FOR EAP/MTS, EAP/EP, AND EB/IFD DEPARTMENT FOR EEB/TPP/MTA/IPC STATE PASS USTR FOR BWEISEL, RBAE AND KEHLERS STATE ALSO PASS USAID, OPIC, USDA BANGKOK FOR USPTO JENNIFER NESS TREASURY FOR OASIA USDOC FOR 4430/ITA/MAC USDOC PASS USPTO STATE ALSO PASS LOC E.O. 12958: N/A TAGS: ETRD KIPR ECON RP SUBJECT: Philippines: 2008 Special 301 Report REF: A. State 9475 ¶B. 07 Manila 552 ¶1. (SBU) Summary. Embassy recommends retaining the Philippines on the Special 301 Watch List. The GRP increased its IPR enforcement actions during 2007, especially against optical disk piracy. The number and value of seizures in 2007 rose significantly. There remain issues of serious concern, especially the lack of convictions of IPR violators and the need for further coordination of IPR enforcement agencies. Retention on the Special 301 Watch List will signal our recognition of the GRP's progress and also will maintain the leverage which has been responsible in some part for this progress. End summary. ¶2. (U) This report is divided into three sections: Part I on the GRP's progress on IPR protection, Part II on areas that warrant GRP attention, and Part III on our recommendation. Part I: GRP Progress on IPR Protection -------------- ¶3. (U) In February, 2006, USTR lowered the Philippines from the Special 301 Priority Watch List to the Watch List. At that time, USTR issued a Special 301 Action Plan for the Philippines. Over the past two years, the GRP has stepped up its efforts to protect intellectual property, focusing on seizures of counterfeit goods, especially optical media disks. The GRP has actively engaged the USG on intellectual property protection, meeting regularly with Embassy and USTR representatives, and seeking training opportunities with the USPTO. Around 30 GRP officials received training at USPTO's Global Intellectual Property Academy in Virginia in 2007, and two IPO officials completed the six-month Foreign Examiners in Residence program. Three other officials participated in an International Visitor Leadership Program on IPR. Enforcement actions against IPR violations were more numerous and widespread in ¶2007. While serious deficiencies remain, the GRP has taken positive steps over the past year to improve its IPR protection regime. Committed Leaders on IPR within GRP Ranks -------------- ¶4. (SBU) Among Philippine champions of IPR, we would highlight in particular Adrian Cristobal, the Director General of the Intellectual Property Office, Peter Favila, the Secretary of Trade and Industry, Eduardo Manzano, Chairman of the Optical Media Board, and Dennis Gonzalez, Chairman of the National Book Development Board. These officials have worked hard to raise the profile of IPR protection within the GRP, and they have been behind the increased public attention that President Arroyo now pays to intellectual property issues. The Intellectual Property Office -------------- ¶5. (U) The Intellectual Property Office (IPO),by statute, is the coordinating body for IPR enforcement in the Philippines. It has functions equivalent to the USPTO, and also coordinates the interagency National Committee on Intellectual Property Rights, hosting its biweekly meetings. Its Director General, Adrian Cristobal, reports to the President through the Secretary of Trade and Industry. Industry representatives praise Cristobal's efforts, describing him as dedicated and energetic. ¶6. (U) In addition to its coordinating role, the IPO also organizes campaigns to enhance the public profile of IPR protection. Over 2007, it continued to organize an average of one public lecture or workshop per week, holding events throughout the country. It held events for government agencies, both national and local, for private business, and conducted seminars at five universities. Cristobal remarked to Post officers that as the IPO does not have primary jurisdiction over enforcement of IPR law, he views public education as his office's most important responsibility. ¶7. (U) The IPO maintains an online database of intellectual property cases intended to permit real-time verification of the status of intellectual property criminal cases. Six agencies have now contributed information to the database. However, the IPO has companied that the legal representatives of some intellectual property owners have not provided information on cases that are MANILA 00000497 002 OF 005 still before the courts. In January 2007, the IPO signed a Memorandum of Understanding with the United States Patent and Trademark Office that aims to improve the intellectual property protection system through information sharing and capacity building. The MOU has not been implemented by the IPO, and the IPO has yet to submit the implementation work plan it is responsible for under the MOU. The Optical Media Board -------------- ¶8. (U) The GRP created the Optical Media Board (OMB) in early 2004, and over the past three years the OMB has asserted its role as the regulatory authority for the licensing of replicating machines and equipment and the materials used for making optical disks. The OMB has been fully operational over the past year, and now carries out raids on a fairly continuous basis. The chairman of the OMB, popular film actor Eduardo Manzano, has leveraged his public persona into media attention for the OMB and its work. Manzano appears frequently in the local media, both in interviews and in staged events such as the destruction of seized pirated DVD's. ¶9. (U) The OMB estimates that most pirated optical media purchased in the Philippines is imported, principally from China, Indonesia, and Malaysia. However, based on increased seizures of replicating machines and mass burners, it believes that the share of pirated media produced in country is growing. The OMB seized over 4.8 million optical discs in 2007 valued at USD 28 million, compared to 1.6 million disks in 2006. It carried out 2,504 inspections over the course of 2007 compared to 942 inspections the previous year. ¶10. (SBU) Manzano's public profile also makes him a lightning rod for criticism. He is often accused of using the OMB as a tool for obtaining publicity for his television projects. Manzano's critics accuse him of spending less time and putting less effort into his duties at the OMB than into his show biz career. As we noted in ref B, the OMB remains understaffed by perhaps half and its budget is grossly inadequate. Manzano reportedly has paid some of the costs of undertaking raids out of his own pocket. Manzano's rocky relationship with many in Congress has not helped the budget situation. After Manzano did not show up to testify personally in budget hearings, the Senate initially granted the OMB a budget of one peso (2.5 U.S. cents) for 2008, though it finally relented and straight-lined the agency from 2007. ¶11. (SBU) The OMB has had mixed success with its search warrants, many of which have been quashed on appeal, an apparent result of its weak legal office. The work of the OMB needs to be better integrated with that of the Philippine National Police and the National Bureau of Investigation. The Optical Media Act of 2004 gives OMB the lead in all matters involving pirated optical discs, but in practice large raids and seizures typically require the assistance of law enforcement officers. Interagency coordination remains poor. ¶12. (SBU) Manzano told Post that he plans to spend the coming year fighting not only for more resources, but for improvements to the Optical Media Act that enumerates the Board's powers. Manzano hopes that the OMB's jurisdiction will be expanded to include Internet piracy--which will be a more significant problem in the Philippines as home broadband access becomes more common--in addition to optical disks. Manzano is also calling for legislation that will make it easier to prosecute "camcording" of movies in theaters, reportedly a growing problem. Philippine National Police and National Bureau of Investigation -------------- ¶13. (U) Within the Philippine National Police, intellectual property cases come under the jurisdiction of the Anti-Fraud and Commercial Crimes Division, led by Colonel Rene Ong, who replaced Noel delos Reyes in the middle of 2007. In 2007, the Division served 241 search warrants and made 59 arrests, filed 28 cases, and made seizures worth more than USD 9 million. During the past year, the Division stepped up its enforcement actions on trademark infringements, conducting several raids against warehouses that stored counterfeit products. Police carried out enforcement actions against internet cafes in Metro Manila, Cebu. and Davao City, cracking down on the use of illegal software, and on the downloading of copyrighted files in the cafes. MANILA 00000497 003 OF 005 ¶14. (U) The Intellectual Property Rights Division of the National Bureau of Investigation, led by Elfren Meneses, served 310 search warrants, filed 423 cases and seized goods worth nearly USD 6 million during the year. The Bureau conducted raids against retailers, call centers, internet cafes, construction and engineering design firms, as well as business establishments that use illegal copies of computer software. These high-profile raids were conducted in Metro Manila, Nueva Ecija Province, Cavite Province, Cebu and Laguna Province in 2007. Bureau of Customs -------------- ¶15. (U) While the Intellectual Property Unit at the Bureau of Customs remains a small ad-hoc group, it had many important seizures of trademark-infringing goods from China during the year. In January 2007 it assisted in seizing four DVD replicating machines being smuggled into the country, other items seized included pirated DVDs, counterfeit cellphone accessories, bags, shoes & apparel, and cigarettes. Overall, the Unit made 34 seizures worth about USD 22 million in 2007. National Book Development Board -------------- ¶16. (U) Over the past two years, the GRP has increased the amount of attention it pays to copyright piracy. Book piracy in the Philippines focuses on academic textbooks. The National Book Development Board (NBDB),a policy making body created by an act of the Philippine Congress, works with the Philippine Reproduction Rights Organization to monitor book sellers and copy shops. ¶17. (SBU) The Philippine government is considering methods for licensing the photocopying of copyrighted materials. While the absence of a licensing scheme may be contributing to the widespread unauthorized photocopying of textbooks, U.S. publishers have expressed concerns about this proposal, given that early versions of it suggested that publishers would be compelled to participate, royalties would be low, and payments would go mainly to Philippine publishers. The "Cheaper Medicines" Bill -------------- ¶18. (U) For the second straight year, the highest profile IPR issue in the Philippines was the Congressional proposal for a "Cheaper Medicines Act" to reduce the prices of prescription drugs, the highest in Asia after Japan, by regulating drug prices, loosening patent protection for pharmaceuticals, and permitting parallel imports. ¶19. (SBU) After the May 2007 elections, legislators introduced 25 different versions of the bill, though over the following months consolidated House and Senate versions emerged. We remain concerned that both the House and Senate bills bar the issuance of new use patents and have provisions on compulsory licensing that are not fully consistent with TRIPS. The legislation is expected to pass congress in 2008. Part II: Areas of Particular Concern -------------- ¶20. (SBU) Despite the progress that the GRP made in enhancing IPR protection during the year, there are still issues that warrant the continuation of the Philippines on the Special 301 Watch List. The most important areas of concern remain the institutionalization of IPR protection, and the inability of GRP authorities to translate raids into convictions of IPR infringers. The Department of Justice (DOJ) and Prosecutions -------------- ¶21. (SBU) The lack of prosecutions and convictions of IPR violators continued to be the biggest weakness in IPR enforcement this year. A year that saw 468 search warrants issued and USD 73 million in seizures produced no convictions. ¶22. (SBU) In late 2005, the Department of Justice reconstituted its MANILA 00000497 004 OF 005 Task Force on anti-Intellectual Property Piracy. Despite its name, the 10 prosecutors on the task force spend only around 10% of their time on IPR. DOJ's backlog of unresolved IPR cases may soon reach 1,000 cases. However, Senior Prosecutor Aileen Marie Gutierrez has distinguished herself in pressing forward with the criminal prosecution of notorious Cotabato City cable pirate Estrellita Tamano despite Tamano's political influence locally and in Manila. ¶23. (SBU) The failure of the Department of Justice to prosecute IPR cases is just one aspect of a weak criminal justice system in the Philippines. Only seven percent of all trials result in convictions. Procedural rules on appeals afford defendants many opportunities to delay the progress of cases, and judges across the system lack what one local attorney calls "a sense of judicial urgency." Progress on a host of issues that interest the USG are contingent on improvements in the judicial system, and significant USG resources are being invested in efforts to help the Philippines improve its judicial system. Institutionalization and Financing of Enforcement -------------- ¶24. (SBU) Progress needs to be made in the development of enforcement institutions, and funding for enforcement needs to be set aside. A reorganization of the Bureau of Customs, which would make the IPR unit permanent, has been pending for several years without action. The annual enforcement budget of the OMB has been PHP 1 million (about USD 25,000) for the past three years, a level that would permit only a few actions per year without outside sponsorship. WIPO Internet Treaties -------------- ¶25. (U) The Philippine Congress has yet to pass legislation amending the Intellectual Property Code to incorporate the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. When the new Congress assembled after the May 2007 elections, Sen. Edgardo Angara reintroduced Senate Bill 880 to implement the Treaties. The International Intellectual Property Association has said that the bill, if enacted, would establish "world class copyright legislation." Cable Piracy -------------- ¶26. (SBU) The illegal retransmission of pay-TV signals continues to be a problem in the Philippines, especially outside Manila. In rural areas, some smaller regional companies take broadcast signals, often using illegal decoders, and redistribute them to customers without payment to rights-holders. The National Telecommunications Commission renews the licenses of these companies without regard to whether they engage in signal theft. Notorious Markets -------------- ¶27. (SBU) There remain many places in Manila where pirated and counterfeit merchandise is openly sold. The most notorious are in street stalls the neighborhoods of Quiapo and Binondo. Several shopping malls openly sell counterfeit goods, including Makati Cinema Square, 168 Mall, and Greenhills Shopping Center. Executive Order of November 17, 2006 establishes landlord liability for tenants who sell pirated merchandise. Part III: Post Recommends Retention on the Special 301 Watch List -------------- ¶28. (SBU) The Embassy recommends retaining the Philippines on the Special 301 Watch List this year. Years of pressure have raised GRP awareness of the importance of IPR protection, and the government has begun to take action as documented above. GRP officials are sensitive to the country's 301 status. If the Philippines were to be raised back to the Priority Watch List, we believe it would undermine those in the GRP who are working to promote intellectual property protection. Far from increasing GRP efforts to combat IPR violations, elevation to the Priority Watch List could reduce the influence of our allies and discourage them. We believe our continued engagement and sustained efforts will bring about more MANILA 00000497 005 OF 005 progress in 2008. Kenney