Identifier
Created
Classification
Origin
09TUNIS137
2009-03-10 08:57:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Tunis
Cable title:
2009 Special 301 Review - TUNISIA - Post Input
how-toVZCZCXYZ0002 PP RUEHWEB DE RUEHTU #0137/01 0690857 ZNR UUUUU ZZH P 100857Z MAR 09 FM AMEMBASSY TUNIS TO RUEHC/SECSTATE WASHDC PRIORITY 6070 INFO RUEATRS/DEPT OF TREASURY WASHINGTON DC PRIORITY RUCPDOC/USDOC WASHDC PRIORITY RUCNMGH/MAGHREB COLLECTIVE
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
-------
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 Tunisia has withdrawn from the Madrid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
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