COSTA RICA: STRATEGY FOR ADVANCING IPR

UNCLAS SAN JOSE 000168 SENSITIVE SIPDIS EEB/TPP/IPE FOR JURBAN AND SKEAT PLEASE PASS TO DOJ FOR BLIPMAN PLEASE PASS TO USTR FOR DOLIVER, AMALITO AND GVETERE E.O. 12958: N/A TAGS: ETRD ECON KIPR PGOV PREL CS SUBJECT: COSTA RICA: STRATEGY FOR ADVANCING IPR REF: A) 07 SAN JOSE 0335 B) 08 SAN JOSE 0155 C) 09 SAN JOSE 0138 ¶1. (SBU) SUMMARY: Post leveraged the February 10-14 visit by Department of Justice OPDAT Program Director Robert Lipman and U.S. Judge Virginia Hernandez Covington to advance our three-point strategy on intellectual property rights (IPR) enforcement. Our strategy seeks to (1) facilitate USPTO, DOJ, and other sources of training for the Costa Rican judiciary, (2) encourage greater IPR cooperation between other Latin American countries and Costa Rica, and (3) collaborate on private sector IPR lobbying/pursuit of IPR case resolution. Our aim is to slowly move the cause of IPR ahead in Costa Rica, despite the minimal engagement of the Attorney General (AG) on these issues. Lipman and Covington met with a broad sampling of stakeholders (including the AG, and Mexican prosecutors, via a DVC) in order to present a thorough overview of IPR issues. Specific next steps include: pursuing DOJ-offered training for judges at Costa Rica's Judicial School, supporting a private sector alliance for prosecuting IPR crimes, engaging the AG's office on training opportunities for prosecutors, and encouraging further collaboration with the GOM and other regional countries on IPR training and DVC exchanges. END SUMMARY. -------------- SESSIONS WITH THE STAKEHOLDERS -------------- ¶2. (SBU) The Lipman/ Covington February 10-14 visit provided us the opportunity to engage with a variety of stakeholders on IPR issues. We arranged for meetings with the following institutions/ groups: -- Judicial Investigative Agency (OIJ, FBI-equivalent); -- University of Costa Rica; -- National Registry (similar to USPTO in function); -- Ministry of Public Security; -- Judicial School; -- Judicial branch IP attorneys; -- Costa Rican Attorney General; -- a forum of private sector executives; -- a forum of judicial and legal officials; and -- a DVC collaboration with Mexican IPR prosecutors (courtesy of Embassy Mexico City). ¶3. (SBU) Typically, DOJ conducts a training module when it arrives in country. However, due to the unique IPR circumstances in Costa Rica -- recently passed legislation as part of CAFTA-DR entry into force (EIF),an AG independent of the executive branch, and a lax legal environment (Refs A, B, and C) -- Post and DOJ decided a series of meetings with stakeholders would generate the best information and guide overall engagement on IPR and tactics for IPR training in Costa Rica. -------------- PROFILE OF AN OBSTACLE -------------- ¶4. (U) As reported in previous Special 301 Reports (Refs A, B, and C),the office of the Costa Rican AG sits in the judicial branch, (fiercely) independent of the executive branch. Within the judicial branch, the President of the Judiciary (the President of the Supreme Court) has only nominal authority over the office of Attorney General. Thus, the AG office holder, in this case, Francisco Dall'Anese, exercises broad powers and exerts independence from the other branches of government including the judiciary. ¶5. (SBU) Currently, our relations with the AG are cordial and formal. The formal aspect results from the AG's requirement that all contact with the office of the AG on any issue, consular, judicial, anti-drugs, trafficking in persons, IPR, etc., be channeled through the Director, Office of Technical Assistance and International Relations, Andrea Murillo. This "gatekeeper" approach tends to constrain the pace and efficiency of communication. Dall'Anese was re-elected to a second four-year term in late 2007, but our contacts speculate that he is unlikely to run for a third term in 2011. ¶6. (U) Regarding IPR, the AG repeatedly states two issues: -- the AG's office does not have the resources to pursue IPR crimes given other priorities, i.e. prosecuting two former Presidents and organized crime; and -- the private sector has the resources so it should prosecute IPR crimes through civil and/or criminal action. This publicly stated position posed a difficult issue for the GOCR during CAFTA-DR implementation. The Ministry of Foreign Trade (COMEX) agreed to USTR's request to establish a special IPR prosecutor's office, which required then Vice President Laura Chinchilla (now a presidential candidate) to request the AG to establish the office. The AG committed to assigning responsibility for IPR issues to an individual within the Miscellaneous Crimes unit, but not to setting up a dedicated unit/office per se. Thanks to USPTO and DOJ training opportunities in late 2008, we were able to establish relations with the Miscellaneous Crimes issues (through Director Murillo). -------------- ALTERNATIVE PATHS AROUND AN OBSTACLE -------------- ¶7. (SBU) Considering the AG's IPR views and tactics, we designed a three-point strategy for achieving IPR progress in the short and long run, which, we hope, will chip away at resistance in the judiciary. -- First, invite all relevant components of the judiciary to as many IPR-related training sessions (USPTO, DOJ, etc.) as possible. In a conversation with the Ambassador in August 2008, Supreme Court President Luis Paulino Mora indicated his interest in DOJ training while affirming that there is a "cultural or reluctance" in Latin America against IPR prosecution. We will use his interest to help support our efforts (even if the AG's office is less cooperative at times); -- Second, in the interest of broadening the horizons of Costa Rican prosecutors and attorneys, we contacted other U.S. Embassies in the region to identify IPR prosecutors/ supporters working on the frontline of enforcement. During the Lipman/ Covington visit, a DVC linked Mexican IPR prosecutors (broadcasting from Embassy Mexico) with Costa Rican prosecutors (broadcasting from Costa Rican prosecutor's office). The exchange produced an informative dialogue. In terms of pursuing cases and the formal organization of IPR within the respective judiciaries, Mexico is certainly ahead of Costa Rica. As a result of the DVC, Mexico offered to help Costa Rica with IPR training. (COMMENT: Embassy San Jose thanks Econoff Joseph Salazar of Embassy Mexico for making the arrangements with Mexican IPR prosecutors and facilitating the DVC in Embassy Mexico City. END COMMENT); and -- Third, the Costa Rican private sector maintains a very different view of IPR than the AG and believes that innovation must be protected. During the Lipman/ Covington visit, key officials from AmCham, the chamber of exporters, the chamber of information and communications technology, and private law practices met with Lipman, Covington and Emboffs to advance the idea of the private sector aggressively pursuing IPR cases through a cooperative alliance. Cases could be civil or criminal, since Costa Rican law allows for private parties to pursue criminal cases in loose cooperation with the AG's office. Such legal actions would (hopefully) force the judiciary to recognize the importance of IPR protection to Costa Rican commerce and highlight the issue in the local media. ¶8. (U) Separate but related to our efforts, COMEX is strongly supporting the IPR Council, a multi-agency body that meets weekly to discuss IPR issues. Headed by the Ministry of Justice, the Council's members include representatives from the Ministries of Public Security, Science and Technology, and Trade (COMEX); Customs; the National Registry; the Judicial School; the Judicial Investigative Agency; and the Fiscal General. Adriana Chaves, a prosecutor and a recipient of DOJ IPR training in late 2008, represented the Fiscal General at the most recent meeting. -------------- GOALS FOR THE SHORT- AND LONG-TERM -------------- ¶9. (SBU) The goals of our three-point IPR strategy (training, international collaboration, and private sector support) are A) to better collaborate with the Costa Rican judiciary in a variety of ways and B) to produce cases for prosecution by way of private sector pressure and involvement. Since Supreme Court President Mora in essence requested training assistance, we will provide it, using USPTO, DOJ, and even other countries in order to keep IPR issues on the judiciary's radar screen. Meanwhile, the private sector will mount a "flanking attack" by introducing cases into the court system which will be heard by some judges with USPTO and/or DOJ training. In the long run, i.e. post-2011, when Dall'Anese will likely have left office, we hope that the USG-provided training and the cases pushed by the private sector will have changed the "culture of reluctance" sufficiently so that prosecutors and judges will understand the importance of IPR enforcement and be more willing to prosecute cases. -------------- ONE OTHER LEVER -------------- ¶10. (SBU) The USG retains one other lever, of course, in the form of the Special 301 Report. With the necessary legislation in place, 2009 will be an interesting trial for Costa Rica's IPR resolve. We hope that the GOCR will make good use of training and collaboration opportunities this year. -------------- NOW WHAT? -------------- ¶11. (U) In the wake of the Lipman/ Covington visit and the Mexican DVC, Post has several immediate initiatives to pursue: -- a DOJ training session for judges at the Judicial School (in June); -- a meeting of the private sector alliance to outline a plan for lobbying and for prosecuting IPR crimes. The lobbying campaign would press the judiciary to prosecute IPR crimes, and the legislature to approve the yet-to-be passed, IPR-related 14th CAFTA-DR bill); -- continued dialogue with the AG's office to determine what type of training is appropriate for IPR staff prosecutors; -- provision of DOJ software -- the Real-Time Analytic Intelligence Database (RAID) application in Spanish -- to the Judicial Investigative Agency (OIJ) at no cost (COMMENT: Investigative analysts and document examiners in law enforcement use RAID to provide document and evidence intelligence in a distributive computer network environment. END COMMENT); and -- Mexican training of IPR staff in the office of the AG. -------------- COMMENT -------------- ¶12. (SBU) Ultimately, we cannot predict how successful our three-point strategy may be, but it underscores our commitment to focus Costa Rican attention on the IPR issue. We position our argument not only as a CAFTA-DR obligation but also as a fundamental building block to Costa Rican commerce and the arts since innovation and creativity are the basic ingredients of a flourishing business and cultural environment. We welcome any change, no matter how incremental, on the part of the AG regarding IPR enforcement. However, we also believe that the most progress can be gained by working around the AG, marking progress with cooperative partners in the quest of small victories now, while preparing for what we hope will be a more dramatic, positive shift in the attitude of the office of the AG in the future. CIANCHETTE