BOLIVIA: INPUT FOR 2009 SPECIAL 301 REVIEW

C O N F I D E N T I A L LA PAZ 000268

SIPDIS

IPE TIM MCGOWAN AND ROBERT WATTS

E.O. 12958: DECL: 02/18/2019
TAGS: ECON EINV ETRD KIPR BL
SUBJECT: BOLIVIA: INPUT FOR 2009 SPECIAL 301 REVIEW

REF: A. SECSTATE 8410

B. 08 LA PAZ 2221

C. 08 LA PAZ 301

Classified By: EcoPol Chief Mike Hammer for reasons 1.4 b,d


1. (C) Summary: Post recommends that Bolivia remain on the
Special 301 Watch List in 2009. Piracy and counterfeiting
are serious problems, existing intellectual property rights
(IPR) legislation is weak, and enforcement is inadequate.
Post believes prospects for improvement are slim, especially
given the Morales's administration's inattention to IPR.
Post does not recommend any stronger steps against Bolivia at
this time, however, as such an action could encourage
anti-American actions and damage ongoing efforts to educate
the Bolivian public on IPR. End summary.

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IPR Violations Widespread
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2. (U) Piracy and counterfeiting are nearly universal.
Bootleg CDs, DVDs, and other goods are sold on street corners
and in stores across the country, and vendors operate with no
fear of punishment. There are no legal sources of
audio-visual materials in most of the country: in the capital
of La Paz there is only one store that sells legal CDs. Drug
counterfeiting, according to Pfizer executives, is an equally
serious problem, with their domestic sales undercut by
copycat products while ineffective or dangerous knockoffs
damage corporate reputations.

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Legislation and Enforcement Weak
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3. (U) Bolivia's 1992 Copyright Law predates the
international standards established under the WTO Agreement
on Trade-Related Aspects of Intellectual Property (TRIPS) and
falls short of obligations under the WIPO Copyright Treaty
and the WIPO Performances and Phonograms Treaty, both of
which Bolivia has signed but not yet ratified. The Morales
administration has actively discouraged neighboring countries
(particularly within the Andean Community--CAN) from entering
into free trade agreements with the United States: one of
Morales' stated objections to these agreements is the
inclusion of IP protection. A former lawyer with the
Bolivian IP Agency SENAPI (who attended a USPTO Global
Intellectual Property Academy in May 2008) is now working on
Morales' "trade agreement" team, where he is in charge of
helping the Bolivian government avoid any inclusion of IPR
protection.


4. (U) IPR enforcement efforts are inadequate, despite
recognition of copyright infringement as a public offense in
the 1992 Copyright Law and provisions for criminal
prosecution of IPR violations in the 2001 Criminal Procedures
Code. Criminal charges are rarely filed, and civil suits, if
pursued, face long delays. Criminal penalties are limited to
up to five years in jail, and civil penalties are restricted
to the recovery of direct economic damages. Some Bolivian
customs authorities continue to try to intercept counterfeit
goods shipments at international borders, but the customs
service lacks the human and financial resources needed to be
effective.

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NEW CONSTITUTION WEAKENS PHARMA PROTECTION
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5. (U) Bolivia's new constitution, passed by referendum on
January 25, 2009, emphasizes protection of traditional
knowledge and cultural items. (Comment: The Bolivian
National Intellectual Property Service is already focusing on
a registry of traditional knowledge, to the detriment of
industrial intellectual property claims. End comment.) The
new constitution also states that "the right of access to
medicines can not be restricted due to intellectual property
rights..." The inclusion of the above text in the
constitution will likely mean that international companies
lose what little protection they have for their intellectual
property in Bolivia.

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Comment
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6. (C) Post is pessimistic about the short-term prospects for
greater recognition and protection of IP. Bolivia is the
poorest country in Latin America, and populist president Evo
Morales is not interested in protecting intellectual
property, particularly property belonging to non-Bolivians.
In 2008 the Embassy and USAID developed a public outreach
campaign to improve knowledge of IP in Bolivia, however the
Bolivian government's rhetoric against USAID prompted the
diversion of funding to a more receptive country. While the
IPR situation in Bolivia merits continued standing on the
Watch List, Post recommends against any stronger action at
this time. Placement of Bolivia on the Priority Watch List
would have no positive practical result, and the
effectiveness of any future IPR education and outreach would
be damaged by Bolivian government outrage at a change in
Special 301 status. For these reasons, Post recommends no/no
change to Bolivia's Special 301 Watch List status. End
comment.
URS