SPECIAL 301 REVIEW: MALAYSIA

UNCLAS SECTION 01 OF 03 KUALA LUMPUR 000177 SIPDIS DEPT FOR EB/TPP/IPE: T McGowan AND EAP/MTS: D Bischof DEPT PASS USTR FOR B. WEISEL, D. BELL USDOC FOR ITA/MAC/OIPR USDOC ALSO FOR USPTO GENEVA FOR USTR E.O. 12958: N/A TAGS: ECON ETRD KIPR MY SUBJECT: SPECIAL 301 REVIEW: MALAYSIA REF: STATE 8410 Summary and Recommendation -------------- ¶1. In 2008 Malaysian IPR enforcement authorities continued to make progress in fighting IPR piracy. The most promising development of the year was the continued progress and expansion of the specialized intellectual property courts. The United States and Malaysia continued to cooperate closely, in particular through IPR training programs and ongoing negotiations on IPR issues within the framework of a free trade agreement. The overall piracy rates remain high for most types of IP, and the government will need to continue to strengthen its enforcement and prosecution efforts, and to seek certain legislative changes to strengthen Malaysian authorities. ¶2. Recommendation: The Malaysian Government's record in 2008 showed a commitment to strengthening IPR protection with improvements in training, prosecution, and IPR courts. Continued training and negotiations either in the context of the U.S. - Malaysia Free Trade Agreement (FTA) or other forum will provide a way to discuss best practices and obtain stronger commitment from GOM especially in enforcement issues. Despite the many positive trends, however, industry estimates on current IPR piracy levels indicate that it remains a serious problem. Piracy will require sustained government attention in many areas for the foreseeable future, and improved government attention in some areas that are currently deficient. Embassy therefore recommends that Malaysia remain on the Special 301 Watch List. End Summary and Recommendation. Enforcement Slows Down -------------- ¶3. The new Minister of Domestic Trade and Consumer Affairs (MDTCA) Shahrir Abdul Samad has instructed the enforcement division to only act on the basis of right holder complaints. Thus, MDTCA officials can not proactively conduct raids without a specific request from a right holder. This is contrary to Trade Marks Act of 1976 and Copyrights Act of 1987, which allow enforcement officials to act if the officer suspects the goods to be counterfeit or infringed. As a result, the number of enforcement actions has reportedly dropped down significantly during the tenure of the new Minister. According to industry statistics, the number of cases launched by MDTCA dropped from 2,333 raids in 2007 to 668 in 2008. The official number of raids, arrests, and prosecuted cases in 2008 is not available from MDTCA at this time, but Post will report septel when the statistics are available. ¶4. Besides the IPR enforcement unit of MDTCA, the Royal Malaysian Customs (RMC) also has authority to enforce IPR under ex-officio capacity under the Trade Marks Act of 1976. RMC detains goods on suspicion of infringing or counterfeit only if the rights holder files a complaint with the Register of Trade Marks under MDTCA. (NOTE: Since the rights holder seldom would have prior knowledge of infringed goods, RMC usually does not get involved with interception counterfeit goods at the ports of entry.) Optical Media -------------- ¶5. In 2008 Malaysian IPR enforcement officers continued to exert some pressure on the producers and exporters of counterfeit optical disc media. While the number of enforcement actions slowed down, the IPR courts established in 2007 were able to more effectively hear complex cases involving IPR infringement issues. ¶6. Statistics compiled by the industry indicate increase in estimated level of piracy in records and music, but no significant change in business software. The estimated piracy level of records and music increased from 45 percent to 60 percent, but the business software piracy rate was unchanged, at 60 percent. ¶7. MDTCA works with the Business Software Alliance to target students, company directors, and employees, and include both educational efforts as well as targeted enforcement. The program was launched in 2007 and targets the use of pirated software, with focus on business software. Book Publishing -------------- ¶8. The book publishing industry reports that the situation worsened in Malaysia in 2008, especially due to commercial, large-scale illegal photocopying in and around university campuses. Reportedly, photocopy pirates now also save soft copy scans of books onto KUALA LUMP 00000177 002 OF 003 portable hard drives or computers, and can either transfer the illegal copy electronically or print directly from the computer. These new technologies can make detection of infringement more difficult. ¶9. Illegal copying of text books is widespread especially in Klang Valley university campuses, where some lecturers are actively involved and sometimes provide sample copies of textbooks to infringers. Pirated books are often delivered by vans directly to students. Some websites also offer scanned copies of books for download. Internet Piracy -------------- ¶10. Music piracy from the Internet remains the most significant form of Internet piracy in 2008. Recording Industry Association of Malaysia (RIM) has claimed a significant increase in demand for digitized music in Malaysia, which has eroded the sales of compact discs (including pirated discs). According to industry statistics, legal compact disc sales dropped 20 to 25 percent in 2008. Much of the demand is being met by foreign websites offering free music downloads. Despite industry demands, the Malaysian Communications and Multimedia Commission (MCMC),Malaysia's regulatory body for telecommunications, has not blocked internet users from accessing illegal song download sites. ¶11. Illegal use of gaming software over the Internet and at Internet cafes remains a significant problem. Some of the "business models" used by the infringers are becoming more complex and more difficult to track down. For example, the game software may be installed on servers off-site, sometimes off-shore, and used in the caf's premises or by access codes issued by the infringers. ¶12. Industry is pushing legislation that would address the liability of landlords who allow their premises to be used for copyright infringement. RIM has been pushing Malaysian authorities to take stronger enforcement action against landlords who allow pirating operations at their premises. RIM has also taken direct action against such landlords by filing a number of lawsuits seeking damages as well as the closure of such operations. RIM has also sent out warnings of imminent lawsuits to hundreds of landlords, many of whom have complied with the warning by expelling the pirates. Motion Picture Piracy -------------- ¶13. Malaysian authorities successfully attacked the problem of pirate recordings in Malaysian cinemas detecting eight illegal recording cases in 2008. However, camcorder piracy remains a significant problem, especially with the proliferation of advanced cell phone technology allowing less detectable recording. ¶14. Malaysian authorities currently use existing Malaysian statutes to arrest and prosecute those caught recording movies in cinemas. However, such arrestees can be charged only with theft, not piracy. The Motion Picture Association continues to push for the implementation of standalone anti-camcording legislation, both to strengthen the authorities' hands (by broadening the scope of illegal activity and by increasing fines) as well as to promote the problem among the Malaysian public. ¶15. The export of pirated discs, in particular those purchased over the Internet, remains a significant problem, although most industry sectors report fewer exports of pirated material from Malaysia than in previous years (with the one exception being the entertainment software industry). Increased access to broadband Internet may contribute this trend reduced exports of physical pirated materials. ¶16. Based on the positive publicity from the seizure assisted by two sniffer dogs resulting in confiscation of more than 1.6 million illegal hidden discs in 2007, MDTCA has decided to establish a permanent canine enforcement unit. Prosecution Improved -------------- ¶17. Special intellectual property courts now operate in Kuala Lumpur, Penang, and Johor Bahru. The first branch was launched in Kuala Lumpur in July 2007. The plan is to expand the IPR courts to Malaysia's all 14 states and the administrative capital region of Putrajaya. Six high courts, holding both civil and appellate jurisdiction, will be established in Kuala Lumpur, Selangor, Johor, KUALA LUMP 00000177 003 OF 003 Perak, Sabah and Sarawak. The IP courts are organized to operate independently of the rest of the court system, with both judges and prosecutors assigned exclusively to the IP courts. ¶18. The industry associations hope that the new courts will increase efficiency of the judicial system in processing IPR related cases. The MDTCA has also taken steps to build capacity of its enforcement officers to handle complex evidence in order to build strong criminal cases against IP pirates. Local industry associations continue providing this training, although they report that number of training opportunities went down in 2008 due to lack of interest from MDTCA. ¶19. According to industry reports, sixteen prosecutors will be permanently assigned to prosecute IPR cases. The combination of special prosecutors and IPR courts should lead to a more effective prosecution of infringers. The combined efforts of investigation and prosecution should be targeted to detecting the source of the pirated copies and not just raids to the retail sales outlets. While retail raids may generate a lot of publicity, the confiscated goods often are stolen before they are destroyed, and make their way back to the market. U.S.-Malaysia IPR Cooperation -------------- ¶20. In 2008 the U.S. government continued close cooperation with the Malaysian government to promote increased IPR protection. 23 Malaysian officials attended USG-funded IP training programs that were offered in 2008 by the U.S Patent and Trademark Office (USPTO). Among the programs attended by Malaysian officials were USPTO Global Intellectual Property Academy programs on enforcement, patents, and trademarks. Malaysian officials were from MyIPO (Malaysian Intellectual Property Organization),MDTCA, IPR Courts, Attorney General's office, and Ministry of Science, Technology, and Innovation (MOSTI). ¶21. During 2008 U.S. and Malaysian officials continued to negotiate the IPR chapter of the proposed U.S.-Malaysia Free Trade Agreement. These negotiations provided an unprecedented opportunity for both sides to learn the details about each other's enforcement regimes. Malaysia's International IP Obligations -------------- ¶22. Malaysia has made progress towards ratifying multilateral IP treaties. Malaysian government officials hope to secure parliamentary ratification of Malaysia's accession to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty by the end of 2009. The GOM also foresees Malaysian accession to several other IP treaties, including the Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite; the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks; the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure; and the Trademark Law Treaty. Malaysia has not committed yet to joining the International Convention for the Protection of New Varieties of Plants (aka the UPOV Convention),preferring to wait until it can evaluate the effect of its newly-implemented domestic plant protection legislation. ¶23. The Ministry of Health announced in 2007 that the government would implement a legal framework to protect pharmaceutical data in order to meet the data protection obligations under TRIPS Article 39.3. The announcement indicated that such protection would be extended for 5 years for new products, and 3 years for new indications of existing products. The time period in both cases would begin from the date that such protection was extended in the product's country of origin. Extensive discussions of the issue have taken place at each round of the U.S.-Malaysia FTA negotiations. RAPSON