2009 Special 301 Review - TUNISIA - Post Input

UNCLAS TUNIS 000137 Sensitive SIPDIS STATE FOR EEB/TPP/IPE (MCGOWAN), EEB/CBA (WINSTEAD AND GILMAN),AND NEA/MAG (PATTERSON AND HAYES) STATE PASS USTR (CHOE GROVES AND BURKHEAD) USDOC FOR ITA/MAC/ONE (MASON) LONDON AND PARIS FOR NEA WATCHER E.O. 12958: N/A Tags: KIPR, ECON, ETRD, TS SUBJECT: 2009 Special 301 Review - TUNISIA - Post Input -------------- Summary -------------- ¶1. (U) Post recommends that Tunisia not be included on the 2009 Special 301 Watch List, given the GOT's improved IPR practices. While there is room for improvement in IPR enforcement efforts, particularly in the fields of optical media and software piracy, the GOT has set up inter-agency commissions to focus on this issue. Industrial associations are also becoming more vocal and are pushing local authorities for stronger enforcement of IPR protection. Post believes that Tunisia is headed in the right direction and placing it on the Special 301 Watch List would be counterproductive. End Summary. -------------- TRIPS Compliance and Data Protection -------------- ¶2. (SBU) The GOT states it is in compliance with the letter of the TRIPS agreement as of January 1, 2005. However there has been a longstanding difference of opinion between the GOT and the US pharmaceutical sector based in Tunisia, over the enforcement of WTO TRIPS Article 39.3 on "data exclusivity." GOT ministries have also issued administrative regulations that enhance the protection of data exclusivity, submitted in the course of patent or marketing license application. Tunisia has withdrawn from the Madrid Agreement concerning International Registration, and consequently requires that trademarks be registered in Tunisia to receive full protection. Patents, designs, and industrial models are also protected when registered with the National Patent Office. -------------- Treaties -------------- ¶3. (U) Tunisian Copyright Law was promulgated in Law No. 36/1994. Tunisia is a member of the Berne Convention for the Protection of Literary and Artistic Works. In addition to its national laws, Tunisia is a signatory of many international conventions related to IPR, including: WIPO treaties, WTO TRIPS, UCC and UPOV, Paris Convention Regarding Trademarks, the Nice Agreement Concerning the International Classification of Goods and Services and the Treaty on the International Registration of Audiovisual Works. Copyrights are registered with the Organisme Tunisien de Protection des Droits d'Auteurs (OTPDA). Tunisia is also a member of the Hague Agreement of November 6, 1925 for the International Registration of Designs and Industrial Models. Designs and industrial models are protected through registration with the Institut National de la Normalisation et de la Propriete Industrielle (INNORPI). The Civil Court prosecutes all violations and is entitled to confiscate revenues and counterfeit copies. Current legislation also permits customs officials to inspect and seize goods if copyright violation is suspected. -------------- Enforcement Efforts -------------- ¶4. (SBU) Post's continuous advocacy for improved IPR enforcement, as essential to improving the local business climate, has helped the GOT to undertake legal measures and administrative actions to address the problem. Amendments have been made to the Customs law that entered into force on January 1, 2009 and to the law on copyrights currently pending before the parliament. The GOT is currently working on a draft commercial law which would stem the sale and distribution of counterfeit goods by requiring permits for street vendors. In addition, inter-agencies strategies have been elaborated in order to coordinate raids and controls on main country's markets. ¶5. (U) Ministry of Commerce figures, over the period 2006-2008, show: - 4.6 million counterfeited items have been seized, including: - 1.979 million electrical components - 1.051 million office supplies - 448,274 health care products - Control agents accomplished 18,000 raids and registered 1,650 infractions. As a result of which: - 64 out of 76 complaints have been addressed, of which: - 40 belong to local companies - 12 related to foreign trademarks manufactured in Tunisia - 24 concern imported trademarks ¶6. (U) On February 10, 2009, the Tunis Court of First Instance sentenced two Tunisian companies, SOFICO and TUMAR, for marketing counterfeited products of the French company SEB's trademark "Moulinex." The court levied the following damages: SOFICO must pay a fine of TND 1,000 (US $820) and TND 1,086 dinars (US $890.52) in damages, as well as TND 100 (US $82) per day until the fines have been paid. TUMAR was ordered to pay a fine of TND 3,000 (US $2,460),TND 742.500 (US $608.85) in legal fees, and TND 50 (US $41) per day, until the fines have been paid. ¶7. (SBU) Over the 2006-2008 period the Ministry of Commerce created a section, within the Economic Control General Directorate in charge of combating counterfeiting. Minimum fines increased from TND 5,000 (US $3,950) to TND 10,000 (US $8,200). On December 23, 2008, President Ben Ali presided over a cabinet meeting that created the National Council for Combating Counterfeiting. The Council will become operational this year. The Ministerial Council is responding to the growing public outcry over the serious economic impacts of counterfeiting. ¶8. (SBU) The GOT has dedicated resources to increasing public awareness to combat IPR infringements, as opposed to imposing criminal penalties, feeling that the route to stopping piracy lies in cutting off demand. On February 6, 2009, the GOT held a public roundtable entitled "Counterfeiting and the Financial Crisis" which addressed the relationship between a financial crisis and the growth of parallel markets selling counterfeit products. There was much discussion about the fact that a financial crisis and parallel markets lead to the same outcome -- increased unemployment. Interlocutors stressed the importance of protecting IPR and combating counterfeit products as the means to protect jobs and economic growth. Many raised the issue of large parallel markets, such as Moncef Bey and Sidi Bou Mendil, which are attracting Tunisian consumers with their cheap counterfeit products. They called for increased public awareness campaigns to impress upon the consumer, the negative impact of his counterfeit purchases on safety and on the country's economy. Lawyers called for strengthened penal action, the enactment of adequate sanctions, and the creation of a commission that brings lawyers and specialists together to establish a viable response against counterfeiters. The GOT has implemented several public awareness campaigns, including radio and print media advertisements, advising the population on the importance of respecting intellectual property rights. -------------- Bilateral Engagement -------------- ¶9. (SBU) On March 24-25, 2008 Post supported a US Patent and Trademark Office (USPTO) seminar for judges, prosecutors, customs officials, and patent office representatives on IPR enforcement. Additionally, programs to educate consumers and manufacturers on the importance of IPR protection are also improving, including the February 6, 2009 seminar hosted by the Tunisia Polytechnic School that invited local authorities and private sector representatives to speak about counterfeiting phenomenon and the damage it is causing to the economy. -------------- Optical Media Piracy -------------- ¶10. (SBU) Optical Media Piracy exists in Tunisia. Major retail establishments (Geant, Monoprix) sell pirated DVDs on open shelves. Numerous smaller retailers and kiosks also sell pirated optical media products. Local vendors are unlikely to discontinue selling such media without greater interventions from the GOT. Political connections at the major retail establishments and some local popular markets may also contribute to the problem. In response to GOT enforcement action in October 2006, Carrefour, a major French retailer, no longer carries pirated CDs and DVDs. ¶11. (SBU) IPR infringement is also a problem in the satellite TV sector. A high number of end-users obtain European programming through pirated signals and tampered decoders, which are easily available. End-users must periodically reprogram their satellite signal decoders to receive European-based programming. Until now, GOT authorities have not made significant efforts to deal with the phenomenon. -------------- Software -------------- ¶12. (SBU) IPR enforcement in government procurement of software has progressed positively since the GOT signed an agreement with Microsoft in late 2006. Under the agreement, the GOT will pay TND 7.8 million (roughly US $5.66 million) in royalties to Microsoft in 2009, for the use of legitimate Microsoft software by government institutions. This represents a positive step toward progressive enforcement of IPR on software in a country where Business Software Alliance (SBA) statistics showed software piracy rates in 2006 reached 79 percent. Software piracy for end users also persists on the private market. Since 2000, well known stores located in "galerie commercial 7 novembre" provide the latest pirated software at prices as low as 5 dinars (roughly US $3.63). -------------- Comment -------------- ¶13. (SBU) Post recommends that Tunisia not be included on the 2009 Special 301 Watch List, in light of the GOT's improved IPR engagement. There has been a progressively improving change in attitude towards IPR among Tunisian officials, as they recognize the negative impact that counterfeiting has had on Tunisia's economy and in response to increased public and international pressure for more effective IPR enforcement. The GOT has taken a proactive legal stance toward IPR protection and has instructed local authorities to give customs and economic control officials ex-officio authority to seize counterfeit products, without requiring a prior complaint by the patent or trademark holder. Post believes that Tunisia is headed in the right direction and placing it on the Special 301 Watch List would be counterproductive. End Comment. GODEC