2009 SPECIAL 301 REVIEW - ASUNCION INPUT

UNCLAS ASUNCION 000135 SIPDIS WHA/BSC MDASHBACH, CCROFT, EEB/IPE TMCGOWAN USTR FOR KDUCKWORTH, JGROVES COMMERCE ITA FOR SCOOK E.O. 12958: N/A TAGS: ECON EFIN ETRD KIPR PA SUBJECT: 2009 SPECIAL 301 REVIEW - ASUNCION INPUT REF: SECSTATE 08410 -------------- SUMMARY -------------- ¶1. (SBU) SUMMARY: Post recommends Paraguay remain under section 306 monitoring. Post encourages the Special 301 Report to acknowledge, as the industry has, Paraguay's positive efforts on enforcement, particularly the work of the Intellectual Property Rights (IPR) Specialized Investigative Unit (UTE). Post concurs with the International Intellectual Property Alliance (IIPA) description of a strong enforcement effort by UTE, although piracy and counterfeit volumes remain high. Limited inter-agency cooperation and coordination reduce the applicability of coercive measures. A new penal code that strengthens IPR statutes will go into effect in July 2009. However, a weak judiciary continues to undermine Paraguay,s capacity to prosecute IPR violations. The Ministry of Industry and Commerce (MIC) is restructuring its IPR Office to address growing irregularities in the registration of patents, trademarks, and copyrights. Institutional weaknesses in customs and the Paraguayan National Police impair the country's ability to effectively control the trade of counterfeit and contraband goods. These two institutions are reform targets of President Fernando Lugo's six-month-old administration, and part of Paraguay,s anti-corruption efforts in the U.S.-funded Millennium Challenge Corporation (MCC) Threshold Program Phase II (TP II) to begin in early 2009. The U.S. and Paraguay signed in April 2008 a two-year IPR Memorandum of Understanding (MOU). END SUMMARY. -------------- Optical Media Piracy -------------- ¶2. (U) The International Intellectual Property Alliance (IIPA) noted in its 2009 Special 301 Report that optical media piracy remains a serious problem in Paraguay in terms of the transshipment and production of blank discs and the burning of music, movies and games. Paraguay has five optical disc manufacturing plants, four of them established in the last three years in Ciudad del Este in the Tri-border Area (Paraguay, Brazil, Argentina). The IIPA noted that the output from these plants increased from 150 million units in 2006 to more than 370 million units in 2008. The amount of optical media produced in Paraguay significantly exceeds possible local use, and most of the production is exported legally and illegally to Brazil. ¶3. (SBU) Post concurs with industry's positive feedback about the work of the INL-funded Intellectual Property Right (IPR) Specialized Investigative Unit (UTE) in the Ministry of Industry and Commerce (MIC). An election year, the first three quarters of 2008 were marked by a general slowdown of government operations. UTE, however, conducted 64 raids and seized over 21 million USD worth of pirated and counterfeited goods. Despite limited government funding and reduced inter-agency coordination, UTE's strategy continues to successfully target high impact, illegal trading schemes. New MIC Minister Heisecke has given UTE the lead in his fight against piracy and contraband. ¶4. (SBU) Post recognizes that for all of UTE's good work, however, the volumes of piracy and counterfeit have not significantly declined. Corruption and institutional weaknesses in the judicial system, customs, and the Paraguayan National Police (PNP) greatly undermine the effectiveness of coercive measures to combat piracy. Customs and the PNP are plagued with low levels of human capital that sustain "rent-seeking" patronage structures. After taking office in August 2008, President Lugo replaced the Director of Customs and announced a strong anti-corruption campaign to "clean-up" the institution. Likewise, President Lugo announced anti-corruption efforts to professionalize the PNP. Paraguay will target and apply anti-corruption controls in customs and PNP through the U.S.-funded Millennium Challenge Corporation's (MCC) Threshold Phase II (TP II) to begin in early 2009. The MCC TP II will also include anti-corruption measures for the judicial system. ¶5. (SBU) In 2008, Brazil implemented new controls at its checkpoint at Foz do Iguazu, and in coordination with Paraguay attempted to reduce the flow of "sacoleiros" (thousands of individuals smuggling goods to Brazil across the Friendship Bridge that connects Brazil and Paraguay). As the movement of "sacoleiros" was curtailed, river trafficking increased. The overall flow of smuggled goods remains high. ¶6. (U) Decree 603 requires importers of optical media, the raw materials associated with optical media, and recording devices or equipment used in the manufacture of optical media to obtain prior authorization from the MIC. The decree also requires that optical media production centers submit to the MIC production plans specifying how the output will be sold. Importers must submit sworn affidavits before receiving import authorization, and the release by Customs of merchandize can be prevented if fraud is detected. The MIC adequately applied Decree 603, and continued its cooperation with industry to share data on importers and shipments of optical media. -------------- Legal System Issues Affecting IPR -------------- ¶7. (U) Approved in July 2008, the new penal code contained significant improvements to the IPR statute. IPR violations are designated as a major crime and prison terms increased, taking probation away as a preferred sentencing option. A minimum and maximum mandatory sentence of no less than two but no more than eight years imprisonment now exists for manufacturing, importing, and distributing pirated or counterfeited goods. The new statute protects against acts of piracy involving sound recordings. Copyright violations are punishable by imprisonment of up to five years. The new penal code will go into effect July 16, 2009, and training for prosecutors and judges is critical to its implementation. ¶8. (SBU) Though the new penal code is a positive step, weaknesses in the judicial system remain a critical constraint to enforce punitive measures for IPR violations. Post agrees with industry's characterization of the legal and judicial system where lack of independence, corruption, patronage and bias are pervasive features. -------------- Use/Procurement of Government Software -------------- ¶9. (SBU) Paraguay has not audited its government computers to assess the legality of installed software. In the past, the MIC was unable to reach agreement with the Business Software Alliance (BSA) on how to carry out such an audit, which BSA believes is Paraguay,s responsibility. Paraguay maintains that all new software procurements adhere to international standards, and a retroactive audit of mostly obsolete computer systems is too costly and counterproductive as the government's new operating systems were procured under strict guidelines. Procurement rules require that government agencies acquire legal software. Paraguay's web-based procurement system allows for individuals to question procurement awards via the procurement website. The website is: http:/www.contratacionesparaguay.gov.py/. Paraguay,s Controller General, which performs a function similar to the GAO in the U.S., reportedly requests to see software licenses when auditing government offices. Government implementation of a software legalization decree, as required by the IPR MOU, is long overdue. -------------- TRIPS Compliance and Other IP-related Issues -------------- ¶10. (U) Paraguay's patent law provides for the granting of pharmaceutical product patents. Congress, however, in response to pressure from the local pharmaceutical industry, passed in 2005 a bill modifying the patent law in a way that local IPR attorneys believe violates Paraguay's TRIPS obligations. The modification introduced several requirements that would make it very difficult for a patent holder to successfully obtain injunctions against infringers, a seeming violation of TRIPS provisions requiring real, practical access to protections. The modification also applies only to pharmaceutical products, a seeming violation of TRIPS provisions requiring that rights be non-discriminatory as to product type. ¶11. (SBU) MIC officials expressed willingness to seek a legislative change to repair the problem. To date, the MIC has not drafted or sought to introduce any legislation to modify the patent law. Post will continue to work with MIC officials in resolving this issue. ¶12. (SBU) MIC is restructuring its IPR Office to address growing concerns about irregularities in the registration of trademarks, patents, and copyrights. MIC efforts represent a positive step in tackling persistent and known problems. The restructuring plan will roll out in 2009, and aims to streamline the IPR Office's operations, building in practices that adhere to international standards. -------------- Data Protection -------------- ¶13. (SBU) Paraguay enacted laws to protect data, including law 3283 in 2007 to protect undisclosed pharmaceutical test data submitted for the approval of drugs, and law 3519 in 2008 to protect data for the approval of phyto-sanitary products. Three different government agencies deal with potentially sensitive data, making a single executive branch solution difficult. Paraguay also enacted in 2008 an agricultural chemical product data protection law, which requires an innovator to make its first regulatory filing in Paraguay. There is no legislation related to traditional knowledge or genetic resources. -------------- WIPO Treaties -------------- ¶14. (U) Paraguay has ratified both the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, and both Treaties have precedence over national law. -------------- Training -------------- ¶15. (U) Post continues to support a working group comprised of judges and prosecutors in the drafting of regulations to govern the use of expert witnesses. Though a work in progress, the proposed regulations will establish guidelines for the qualification of expert witnesses and outline the removal and disciplinary process by which expert witnesses can be sanctioned when they testify falsely. The expectation is to have the expert witness regulations adopted in 2009. ¶16. (U) Post is working with the MIC on an IPR outreach campaign to raise awareness about the negative economic impact of IPR violations. The launching of the campaign is expected in the second half of 2009, and it will involve the active participation of private sector representatives. Post will also held in September 2009 an IPR training course for prosecutors and government enforcement officials. -------------- Notorious Markets -------------- ¶17. (U) Paraguay's notorious markets remain: Zona Baja area, Gallery La Esperanza, and Paseo San Blas in Ciudad del Este; Mercado 4 in Asuncion; and, Shopping West Garden in Pedro Juan Caballero. -------------- Internet Piracy -------------- ¶18. (U) Although internet piracy is a growing global trend, it is not yet a serious concern in Paraguay. Internet connectivity in Paraguay is one of the lowest in the region at less than 6 percent of the population. Broadband access is usually limited and connectivity often below par. In 2008, however, IIPA notes that BSA supported criminal actions against two big internet sites which offered unauthorized software products. Please visit us at http://www.state.sgov.gov/p/wha/asuncion AYALDE