GCOB VOWS TO SIGN NEW COPYRIGHT LAW REPEALING

C O N F I D E N T I A L NASSAU 000486

SENSITIVE
SIPDIS

STATE FOR WHA/CAR

E.O. 12958: DECL: 08/16/2019
TAGS: BF PGOV
SUBJECT: GCOB VOWS TO SIGN NEW COPYRIGHT LAW REPEALING
COMPULSORY LICENCE

REF: A. NASSAU 280

B. STATE 415671

Classified By: DCM ELMO for reasons 1.4 (b) and (d).


1. (C) Summary. Ministry of Foreign Affairs Director
General, Ambassador Joshua Sears, told PolCounselor and USTR
officials privately on August 5th that the Governor General
will sign an amendment to the Copyright Act of 2000 in the
next few weeks, which would narrow the scope of the
compulsory license to permit only compulsory licensing of
copyrighted works broadcast free over the air. The amendment
was initially passed by Parliament in 2004 but never signed
into law. The existing copyright law allows Cable Bahamas to
intercept and distribute encrypted U.S. cable television
satellite signals. The message from the Government of The
Bahamas (GCOB) was delivered on the margins of an
Intellectual Property Rights (IPR) meeting between U.S.
broadcast industry members, Cable Bahamas and representatives
from both governments. If the compulsory license is not
repealed the GCOB risks losing this year,s Caribbean Basin
Initiative (CBI) benefits and being placed on the USTR
Special 301 Watch List next year. End Summary.

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Stakeholders Met to Resolve Impasse
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2. (SBU) On August 5, the Ministry of Foreign Affairs (MFA)
hosted a meeting between U.S. industry members, Cable Bahamas
and representatives from both governments in an effort to
resolve the long-standing dispute between Cable Bahamas and
U.S. network providers (REF A). The meeting was the
culmination of years of effort on the part of Post to achieve
resolution of the issue. Sears began the meeting by
reaffirming the close relationship between the GCOB and the
U.S. and stated that his government was committed to moving
forward and resolving the matter. He informed stakeholders
that the GCOB was conducting a comprehensive review of all
copyright legislation. Assistant Director of Legal Affairs
Shane Miller told participants that the GCOB was not
interested in establishing "maverick legislation" with their
compulsory license. Miller stated that the GCOB had met its
obligations and the issue was now considered a commercial
matter.


3. (C) Sears has participated in this issue throughout the
long and arduous process that began nearly ten years ago.
USTR placed The Bahamas on its Special 301 Watchlist for
several years based upon concerns over the country,s
compulsory licensing regime. Cable Bahamas countered for
many years that outdated distribution contracts being used in
the U.S. placed The Bahamas in the Latin American
distribution zone, providing Spanish-language programming
useless to the local population. The Television Assocaition
of Programmers (TAPLAT) made significant efforts to address
this issue and cable providers now offer over 90 percent of
their programming in English. The Bahamas was removed from
the Special 301 Watch List in 2006 and has remained off since
then, with the provision that the GCOB put forth good faith
efforts to address the compulsory licensing issue in 2009.

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USTR ) CBI Benefits and WTO
Application at Risk
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4. (SBU) The USG emphasized that IPR protection was the
cornerstone of economic development. USTR official Kent
Shigetomi told the participants that essentially nothing had
changed since 2000. Although the copyright amendments had
passed both houses of Parliament, they had not been signed by
the Governor General and entered into force. Shigetomi told
the GCOB that the benefits they receive under the CBI were at
risk if the compulsory license was not repealed. He also
noted that The Bahamas copyright protection laws were under
scrutiny as part of both the Special 301 process and The
Bahamas World Trade Organization (WTO) application.


5. (SBU) U.S. Industry representatives reiterated their
position that the GCOB was the only nation in the world with
such a license and that it established a dangerous precedent
in the region. Industry representatives noted that other
countries in the region had tried to enact similar licenses
but failed to do so in part because of the impact on other
international arrangements such as accession to the WTO.
They affirmed that a commercial solution could not be reached
as long as compulsory license was in place because it removed
the incentive for the cable company to negotiate in good
faith and that maintaining the status quo was unacceptable.

The industry representatives said that the arguments put
forth in defense of the license in 2000 by Cable Bahamas no
longer applied as 90 percent of programming is now available
in English. In addition, it was noted that commercial
solutions are widely available and are being reached without
compulsory licenses. HBO noted that they operate in 33
countries without the use of a compulsory license.

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Cable Bahamas: If we don,t steal
it, someone else will
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6. (SBU) Cable Bahamas stated that their main goal was to
obtain affiliation agreements in order to be able to provide
desired programming to Bahamians. Cable Bahamas pointed to
their affiliation agreements with MTV, Fox and Discovery and
said other providers have refused to negotiate with them
(industry reps noted that those providers can clear rights
because they own their own material, others do not). Cable
Bahamas requested a time table for affiliation agreements and
greater clearance of U.S programming. They claimed that a
compulsory license would only be used where a signal was
unavailable and when programmers have been unable to clear
rights. Legal Counsel for Cable Bahamas Mark Palchick said
that although he recognized that copyright owners had very
legitimate concerns, "absent the compulsory license there is
no legal way for Cable Bahamas to provide programming or for
copyright owners to receive compensation." He noted that the
compulsory license was "100 percent compliant with
international law." He asked industry representatives to
reconsider their refusal to participate in the copyright
royalty fund. He said the fund was not an acknowledgement
that the compulsory license was appropriate but a way for
copyright owners to receive compensation.


7. (SBU) Cable Bahamas maintained that since U.S. satellite
coverage extended to the whole of the Bahamas they were not
able to compete with illegal receivers. Cable Bahamas noted
the ease that Bahamians could procure DirecTV and Dish
Network accounts by citing a U.S. address and relocating the
dish and receiver to the Bahamas. They argued that Cable
Bahamas would need to offer the same package of programming
as was available in Florida to be competitive or risk a loss
of business to U.S. Direct TV and Dish Network. U.S.
suppliers countered that they would be willing to work with
the GCOB and Cable Bahamas to shut down the illegal boxes.

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GCOB ) We Understand our Obligations
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8. (SBU) The GCOB noted that they had no control over the
operation of Cable Bahamas and expressed a "clear commitment
to abide by international law." In this regard, Simon
Wilson, Director of Economic Planning said, "we understand
our obligations." Ambassador Sears told participants that he
would "faithfully report the views expressed" to higher
officials responsible for making decisions on the matters
discussed and that everyone in the room "was on the same
page." The USG reiterated the urgency of the issue and that
the deadline for the USTR report was looming. USG
representatives noted that USTR was required to submit a
report on the operation of the Caribbean Basin Economic
Recovery Act (CBERA) no later than December 31 of this year.
This review could affect The Bahamas, continued eligibility
to receive unilateral trade preferences under the Caribbean
Basin Initiative (CBI). In order to be considered in the
report, the Copyright Amendment should ideally be signed and
entered into force prior to October 31.

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GCOB DG ) Amendment WILL be signed shortly
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9. (C) In a sidebar meeting between government officials,
Sears affirmed that the law would be signed and that the
Cabinet was "resolute" on the issue. USG representatives
raised concerns that the effective date occur simultaneously
or soon after the law is signed. Sears affirmed that there
would be no delay. Senior U.S. Congressional staffer Shanna
Winters offered assistance in facilitating parties to take
part in commercial negotiations once the law is in effect.


10. (SBU) The GCOB requested assistance in addressing other
IPR issues that are limiting Bahamian access to legal U.S.
products and services via the Internet. For example,
Bahamians can not download songs from iTunes or watch TV
episodes on US network websites. Downloading/viewing is

restricted to the 50 U.S. states.


11. (SBU)Meeting attendees included: U.S. Participants: Jeff
Dubel, U.S. Embassy; Wendy Rejan, U.S. Embassy; Kent
Shigetomi, U.S. Trade Representative; Shanna Winters, Senior
Staff Member, Congressional Foreign Affairs Committee; CGOB
Participants: Ambassador Joshua Sears, Director General, MFA;
Rhoda Jackson, Minister Counsel/Deputy Chief of Mission;
Alexious Rolle, Multilateral Economics, MFA; Missouri
Sherman-Peter, Ministry of National Security; Peter Deveaux
Issacs, Under Secretary; Monique Morley, Officer Manager; Lt.
Moxey, Royal Bahamas Police Force (RBPF); Lisa Pratt,
Sergeant, RBPF;Simon Wilson, Director of Economic Planning,
Ministry of Finance; Tia Hanna, Economist, Bahamas Customs;
Brian Wallace, Customs Officer Grade I, Bahamas Customs; Kirk
Seymour, Chairman, Copyright Royalty Tribunal; James Gomez,
Member, Copyright Royalty Tribunal; Leroy Somner, Deputy
Permanent Secretary, Attorney General Office; Shane Miller,
Assistant Director of Legal Affairs, Attorney General Office;
Rose Green Thompson, Law Student, Attorney General Office;
Jucinda Butler, Director, Registrar General,s Office; Gayle
Davis, Office Manager, Registrar General,s Office; Cable
Bahamas Participants: Anthony Butler, CEO, Cable Bahamas;
Mark Palchick, Legal Counsel, Cable Bahamas; U.S Industry
Participants: Sean Spencer, President, Television Association
of Programmers; Jose Sariego, Chief Legal Counsel, HBO Latin
America; Ken Pierce, Legal Counsel, HBO Domestic; Bernard
Stewart, International Trade Specialist, ESPN Caribbean; and
Cameron Gilreath, Senior Vice President, Time Warner.


12. (C) COMMENT. The GCOB commitment to enact the 2004
Copyright Amendment appears to have been motivated by U.S.
congressional intervention, a legitimate fear of being put
back onto the 301 Watch List, concerns about WTO accession,
and losing CBI benefits. Enacting will force Cable Bahamas
to enter into negotiations with U.S. industry representatives
and hopefully put an end to this long-standing dispute.


13. (SBU) This cable has been cleared by StaffDel Shanna
Winters and USTR Kent Shigetomi.
ELMO