YEMEN VOLUNTARY INPUT FOR 2009 SPECIAL 301 REVIEW

UNCLAS SECTION 01 OF 03 SANAA 000401 SIPDIS DEPT FOR NEA/ARP ANDREW MACDONALD AND EEB/TPP/IPE TIMOTHY MCGOWAN PASS TO USTR FOR JENNIFER CHOE GROVES E.O. 12958: N/A TAGS: ECON ETRD KIPR YM SUBJECT: YEMEN VOLUNTARY INPUT FOR 2009 SPECIAL 301 REVIEW REF: STATE 8410 SUMMARY -------------- ¶1. In response to reftel, Post input for the U.S. Trade Representative's 2009 Special 301 review follows. ¶2. Yemen continues to face many obstacles to intellectual property rights (IPR),including a non-TRIPs-compliant IPR law, which it is seeking to amend. Copyright protection of optical media is provided by the Ministry of Culture, which registers CD/DVDs and refers infringement cases to the judiciary, but piracy is still widespread. No effective IPR protection of computer software and the internet exists. Pharmaceutical and agricultural products can be registered, but IPR enforcement is extremely limited. IPR enforcement within the ROYG is hampered by lack of equipment and training of staff. Post recommends continued USG technical assistance and training in the field of IPR. END SUMMARY. BACKGROUND ON YEMEN'S IPR ENVIRONMENT -------------- ¶3. Yemen joined the Paris Convention for the Protection of Industrial Property in November 2006 and acceded to the Berne Convention for the Protection of Literary and Artistic Works in 2007. The ROYG recently applied to join the Gulf Cooperation Council's Patent Organization. Yemen has had observer status in the World Trade Organization (WTO) since 2002 and is in the process of applying for WTO accession. The last WTO Working Party meeting was held in Geneva in October 2008. ¶4. Despite all of its efforts, Yemen has a record of inadequate protection of intellectual property rights (IPR), including patents, trademarks, designs and copyrights. Its IPR Law Number 19 of 1994 is not TRIPS-compliant. (Note: Yemen currently has only one law which addresses all areas of IPR, Law Number 19. End Note.) In order to strengthen IPR protection and enforcement, in 2007, the ROYG Ministry of Industry and Trade drafted new patents, trademark, design, and consumer protection laws with assistance from the World Intellectual Property Organization (WIPO). (Note: Yemen has been a member of WIPO since 1979. End Note.) In 2007, the ROYG Ministry of Culture drafted a new copyrights law, which was sent to the Parliament in 2008. As of February 2009, Yemen's Parliament has still not yet passed the new IPR laws, despite the fact that the ROYG had pledged that the law would be passed by the end of 2008. LIMITED COPYRIGHT PROTECTION ON OPTICAL MEDIA -------------- ¶5. The ROYG Ministry of Culture handles issues related to copyrights of optical media (i.e. music CDs, video CDs, CD-ROMS, and DVDs),computer software, books and magazines. Manufacturers of CDs and DVDs can register their products at the Ministry of Culture, which then issues an identification number and an official letter to all CD/DVD manufacturers in Yemen alerting them of the new product. The Ministry of Culture has twelve inspectors in Sanaa alone who investigate cases of CD/DVD copyright violations. If an inspector determines that a violation has occurred, he or she then types up an official letter, investigates the case, and refers it to the Office of the Prosecutor and/or Ministry of Justice. If a person is convicted of a copyright violation, penalties include a 6-month prison sentence and a 10,000 Yemeni riyal fine (approximately USD 50). Three cases resulted in convictions in 2007 and none in 2008, according to a working-level Ministry of Culture official. ¶6. Piracy of optical media remains widespread in Yemen and near-perfect quality Southeast Asian-produced CD and DVD copies can be found in shops across town. The ROYG claims it cannot control optical media piracy because any shop with a CD/DVD burner can produce counterfeit copies of the CD/DVD at will and Yemeni consumers are not able to tell the difference between genuine and counterfeit products. The ROYG also blames a lack of public awareness about copyright protection or other fields of IPR, primarly due to the high illiteracy rate and low income of the people. NO PROTECTION ON COMPUTER SOFTWARE AND THE INTERNET -------------- -------------- SANAA 00000401 002 OF 003 ¶7. Yemen's current IPR law does not cover computer software. Manufacturers, however, can register their products with the Ministry of Culture, which issues a certificate. The Ministry of Culture still has only one inspector who covers computer software issues. The only IPR protection for computer software inside Yemen is built-in protections from the computer companies (e.g. a person with a counterfeit computer software program would not be able to download an update of the same program from the internet). There is also no protection against internet piracy. Although the Ministry of Telecommunications handles internet use in Yemen, IPR internet protection is weak. LIMITED PROTECTION FOR PHARMACEUTICAL AND AG PRODUCTS -------------- -------------- ¶8. Pharmaceutical products in Yemen are covered under IPR Law No. 19 of 1994, which organizes the import and trade of pharmaceutical products, according to the Ministry of Industry and Trade. Within the ROYG Ministry of Public Health and Population is a Supreme Committee of Drugs and Medical Appliances, which oversees data protection of pharmaceutical products and is in charge of registering pharmaceutical companies and drugs. The Supreme Committee has 250 employees and has agents at every airport and seaport in Yemen. If a foreign drug company wishes to export its products to Yemen, the company approaches the Supreme Committee, which first runs lab tests on the products, then registers the company and product and issues a certificate. The company then brings the certificate to the MOIT, which issues a trademark. A company can also register its pharmaceutical products in Yemen through the Gulf Cooperation Council's Health Ministers Council Office in Riyadh. Through this second method, companies' products would be registered in all six GCC countries, plus Yemen. After the pharmaceutical product is registered, the Supreme Committee conducts random inspections of it in the marketplace. ¶9. If the Supreme Committee discovers counterfeit pharmaceutical goods in the marketplace, it has the power to confiscate the goods and even to close down the companies. It then refers cases to the Office of Public Prosecution. In reality, however, there are few serious consequences for producing counterfeit drugs. A draft IPR law focusing on pharmaceutical products is pending in Parliament, as of February 2009. ¶10. The process of data protection/registration for agricultural products follows the same procedure as pharmaceutical products, but takes place within the Ministry of Agriculture, which issues a certificate. The owner of the agricultural product then takes the certificate to the MOIT, which issues the trademark. WEAK IPR ENFORCEMENT IN YEMEN -------------- ¶11. The weak role of the ROYG in the field of IPR enforcement efforts is also demonstrated by the Ministry of Industry and Trade (MOIT) and the Customs Authority (CA). The Ministry of Industry and Trade has a staff of 32 people who focus on three areas of IPR: trademarks, patents and industrial designs. The Intellectual Property Department at the Ministry of Industry and Trade describes itself as an "observer" which records complaints about counterfeit goods but has no enforcement powers. Even though the MOIT can refer these cases to the judiciary, many judges are not knowledgable in the area of IPR. ¶12. The Customs Authority (CA)'s role in IPR enforcement takes place at the 25 Customs entry points located along Yemen's long and porous border. The CA claims that, like the MOIT, it does not have the right to arrest counterfeiters. The CA does have the right to confiscate and seize items and can refer counterfeit goods cases to the judiciary. Most counterfeit goods in Yemen come from smuggling, especially in electronics, basic commodities and cigarettes, according to a CA official. COMMENT -------------- ¶13. The lack of legislative action in Parliament, insufficient resources as the result of an ongoing ROYG budget crisis, and a lack of public awareness are all to blame for widespread IPR violations in Yemen. A January 2009 SANAA 00000401 003 OF 003 attempt by the ROYG Tax Authority to implement a general sales tax that has been on the books since 2001 could create an incentive for the ROYG to scrutinize more closely the activities of manufacturers and retailers throughout the country in order to increase government revenues. This scrutiny, in turn, could lead to a mechanism to clamp down on rampant IPR violations. Post will continue to leverage Yemen's ongoing interest in full WTO membership to push for IPR legislation and implementation of existing IPR laws. Post agrees with the decision not to place Yemen on the 2008 Special 301 Watch List or Priority Watch List and recommends doing the same in 2009. End Comment. SECHE