POLAND: 2009 SPECIAL 301 REVIEW: POST

UNCLAS SECTION 01 OF 08 WARSAW 000225 SENSITIVE SIPDIS STATE PASS TO USTR USTR FOR DWEINER AND JCHOE GROVES STATE FOR EUR/NCE AND EEB/TPP/IBE TMCGOWAN E.O. 12958: N/A TAGS: ETRD ECON KIPR PL SUBJECT: POLAND: 2009 SPECIAL 301 REVIEW: POST RECOMMENDATION REF: A. WARSAW 46 ¶B. 06 WARSAW 280 ¶C. 07 WARSAW 407 ¶D. 08 WARSAW 237 WARSAW 00000225 001.2 OF 008 ¶1. (SBU) Summary: Post recommends that Poland be removed from the Special 301 Watch List. In 2008, Poland consolidated and extended the major advances it made during 2007 in protecting intellectual property rights (IPR). Improved enforcement was highlighted in February, when Polish police raided what appears to be the largest copyright infringing disc operation ever shut down in Europe. Contacts in the movie, film, software, apparel and cigarette industries all lauded police cooperation. While the courts remain congested, closure of a major loophole in 2007 led to improved prosecution in 2008. Counterfeit goods continue to be offered at bazaars on the German border, but those markets are shrinking. Since the Warsaw Stadium closed, markets in Warsaw are largely free of counterfeit products. Polish government authorities noticeably increased their understanding of how internet pirates operate, and effectively employed tactics to counter them, including shutting down three "top sites." Use of peer-to-peer networks dropped, and use of legitimate online music services increased. Despite increased revenues from sales of innovative drugs added to Poland's reimbursement list, the innovative pharmaceuticals sector's market access frustrations deepened. However, post has seen no new evidence of specific IPR violations related to data exclusivity with American firms in several years. While work remains to be done, we believe Poland has made substantial progress in protecting intellectual property rights. The overall impression is of a climate of increasing respect for IPR, reflecting a broad and deep commitment by the Polish government. End summary. -------------- Enforcement -------------- ¶2. (SBU) Rights holders reported excellent cooperation with the police during 2008: -- The local representative of a major American clothing label stated there has been a significant decline in counterfeit cases, in part because of "excellent enforcement," including markedly improved border controls. -- The music industry association, ZPAV, said cooperation with the police was first-rate, citing many well-coordinated raids in 2008. The police opened 317 investigations related to counterfeit music (and an additional 27 were begun by customs officials and four by border guards). -- The film industry association, FOTA, worked with the police on over 875 investigations, resulting in 863 police raids and 856 criminal cases. As a result of these raids, 89,367 DVDs and 154,532 DVD-Rs and CD-Rs with illegal content were seized. Three-quarters of these cases resulted in prosecutions. -- According to the Business Software Alliance (BSA) the Polish police were active in investigating software piracy and conducted at least 70 raids. BSA also noted a number of "ex officio" prosecutions, as well as prosecutions initiated at BSA request. BSA finds cooperation with the police so effective and efficient that it has not brought any civil law suits for several years. -- The Special 301 submission of the International Intellectual Property Alliance (IIPA) states that entertainment software publisher relationships with law enforcement authorities remain positive, and notes that in 2008 police quickly took action against a high-volume seller when his activities were brought to their attention. According to an official from the Polish Border Guards, following Poland's entry into the Schengen Zone, Border Guards now work throughout the country, using mobile patrols to detect counterfeit goods, which flow into Poland from Russia, Ukraine and Lithuania. The Border Guards are particularly focused on counterfeit alcohol and cigarettes, which present health risks as well as reduce excise tax collections. WARSAW 00000225 002.4 OF 008 ¶3. (U) An inter-agency committee, chaired by the Ministry of Culture, continued to meet and work to implement the Polish government's strategy for protecting IPR. Much of the Committee's work focused on improving information sharing and coordination. The Ministry of Culture and the Patent Office jointly set up a database of registered labels and trademarks in 2008. Access to the database should be extended to the police, Border Guards and prosecutors' offices in 2009. Customs officials also introduced an information exchange program called "Vinci," which is compatible with the World Customs Organization's standards. Under the program, rights holders can submit information (and photographs) to the Vinci database. Customs officials can then use the information to quickly and efficiently distinguish genuine merchandise from counterfeits. ¶4. (SBU) Officials throughout the Polish government continued to build capacity to protect IPR. In 2008-2009, four officials from the Ministry of Culture and one from the National Health Fund participated in training offered by the U.S. Patent and Trademark Office (USPTO). In fact, USPTO has now trained three-quarters of the personnel in the IPR office at the Ministry of Culture. The Patent Office organized a major conference around World Intellectual Property Day. An association of local rights holders organized 15 seminars in which the Polish Customs Service, police and Border Guards participated. A manual on handling evidence in IPR cases has been distributed throughout the country, and the main Polish Police Academy has a functioning e-learning platform with training materials on IPR. The Poles are also adapting their enforcement methodologies, as new channels for distributing pirated goods are discovered. For example, after it was discovered that relatively small quantities of pirate discs were being distributed by mail, all post office customs units were instructed to open suspicious packages containing discs. ¶5. (SBU) Contacts report that prosecution of IPR violations has improved since 2007, when Poland legislatively overturned a Supreme Court decision that had made it difficult to prosecute downstream sellers of pirated goods. The IIPA's Special 301 submission notes that only 10 percent of cases initiated by the police were dropped by prosecutors, a decline from 2007. Polish courts remain congested for all types of cases, including those involving IPR. Dockets are most congested in Warsaw, where it may take three to five years to reach a final judgment. One effect of this is that the number cases settled by plea bargain has increased to 50%-60%. Rights holders state that in most cases a fine or suspended sentence is imposed. (Note: Such sentences appear to be in the mainstream of prevailing judicial practice in Europe, although rights holders complain that they believe these sentences are insufficiently "deterrent." End note.) ¶6. (SBU) Following closure of the market at the Warsaw Stadium, a decline in physical goods piracy in Poland has made it easier for rights holders to cope with the overburdened court system; one major apparel company stated it used to have 200 open cases, but now only has 20-60. While rights holders state they would still like to see specialized IPR courts created, the need for such courts has lessened. Plans to create specialized IPR courts have been scaled back. A bill is pending in the Polish parliament that would designate one division of the district court in Warsaw to review schedules of payments made by "collecting rights societies." At least initially, the court would have no criminal jurisdiction. According to officials at the Ministry of Culture, this could be the first step toward developing specialized courts with jurisdiction over other IPR issues as well. Other reforms rights holders favor include abolishing the need for testimony of an independent expert to establish that the goods in question are counterfeit, and re-allocating prosecutors now assigned to organized crime cases to form a specialized cadre of IPR prosecutors. -------------- -------------- Production, Import and Export of Counterfeit Goods -------------- -------------- ¶7. (SBU) The executive director of Promarka, an association of about 35 brand owners in the food, cosmetics and chemicals industries (including such American firms as Proctor & Gamble and Coca-Cola),described piracy issues in Poland as "minimal WARSAW 00000225 003.2 OF 008 at the moment," and certainly less urgent than three to five years ago. Consequently, his association has shifted its focus from strengthening Polish legislation relating to enforcement to developing standards of conduct for online advertising and supporting social awareness campaigns in the media. A top concern for Promarka members is a shift of consumers from counterfeit products to "private label" products. Such goods are often of lower quality, and sell for a lower price, but are legally produced and marketed. ¶8. (SBU) In 2008, the Polish Customs Service seized over four million illicit goods. Of these, 93% violated trademarks, 5% violated copyright, and 1.6% violated a patent. Cigarettes accounted for 24% of seizures; chemical compounds for 24%; electronics, 16%; clothing, 6%; toys, games and sports gear, 4%; CDs and DVDs, 3%; pharmaceuticals, 3%; foodstuffs, 2%; computer equipment, 1%; and watches and jewelry, 1%. ¶9. (SBU) ZPAV states that about 20 percent of musical physical goods (i.e., CDs) in the Polish market are pirated, roughly the same as last year. In contrast to global trends, sales of CDs actually increased in 2007, thanks in part to "Polish pricing," which makes CDs available at 40% or 50% less than in other markets. In markets on the German border, one sees less and less music being sold, although the number of files per disc is increasing. "Burned," locally produced CDs, are increasingly displacing "pressed" CDs from Russia or Ukraine. FOTA states that they have seen a decrease in the number of seized discs containing pirated movies, but a pirated disc often contains four, six or even eight films. They estimate as much as 85% of the films sold in bazaars are pirated. ¶10. (SBU) A shift in the computer market may lead to a decline in pirated software. According to the General Manager of Dell Computer's factory in Poland, about 40% of Polish computers used to be assembled from components by "guys with screwdrivers," who would offer the machine with a pirated operating system and other software. However, laptop computers are becoming more popular. These are more difficult to assemble, and thus are more likely to be purchased from a producer offering legal software. The Business Software Alliance's focus remains on companies that are illegally running copies of software (often initially legally purchased and then illegally replicated) on several computers. -------------- Notorious Markets -------------- ¶11. (SBU) The Warsaw Stadium, Poland's most notorious market, closed in 2007. Although concern was expressed at the time that the illegal trade could simply migrate elsewhere in Warsaw, that did not happen. FOTA told EconOff that in Warsaw, markets are almost free of pirated products, thanks to aggressive policing. The IIPA's Special 301 submission noted that the Warsaw Wolumen market became almost completely free of counterfeited and pirated products after raids against the main supplier of such products in June ¶2007. Brand holders have been unable to determine where the large numbers of Asian, African, Russian and Ukrainian traders who formerly worked the Stadium went, but many or even most seem to have given up and moved on. Increased vigilance at the EU border (an important factor, since most pirated goods were imported),coupled with disruption of the market in Warsaw, may have pushed the traders past the tipping point in assessing the risk of having goods seized vs. the potential rewards. ¶12. (SBU) Open-air bazaars along the border with Germany continue to sell pirated goods, but in diminished quantities. In its Special 301 comments submitted to USTR, Phillip Morris (PMI) stated Poland has "...made significant progress in conducting regular ex officio reviews of such markets and in responding to specific complaints by PMI resulting in enforcement actions at such markets. This has led to a reduction, although not eradication, of counterfeit PMI cigarettes in these border markets." Similarly, the IIPA noted that there were several raids at border markets in 2008; that the music industry reported much lower quantities of pirated music; and that the film industry noticed a decrease in the supply of pirated audiovisual discs after WARSAW 00000225 004.2 OF 008 raids of three labs in 2008 led to seizure of over 70,000 pirated discs and 159 DVD burners. Contacts estimated that the markets have shrunk by 25%-30% in the last year, largely in response to Poland's entry into the Schengen Zone. Exchange rate differences between the zloty and the Euro continue to draw Germans to the border to buy gasoline. Following established patterns, they often buy cigarettes and shop for other goods while there. In addition, contacts speculate, while Poland's entry into the Schengen Zone means pirates could move their products closer to their German customers, the pirates continue to stop at the border because they fear German police more than Polish police. ¶13. (SBU) On February 21-22, EconOff inspected three markets identified by ZPAV: Zgorzelec, Sienawka, and Kostrzyn. At Zgorzelec and Sienawka, the market stalls were stocked with cheap but legal goods. No pirated goods were observed in Zgorzelec. Officials in the Sienawka local government stated that recently the market there has declined markedly. About half the stalls were empty during EconOff's visit. There was a healthy trade in cigarettes, some of which may have been counterfeit, but beyond that the only pirated good observed was a single "Moschino" shirt in the last stall at the back of the market. Border guards maintained a visible presence, both near the markets and on the roads approaching them. ¶14. (SBU) The situation in Kostrzyn was different. The Kostrzyn market covered an area about twice the size of Washington's Eastern Market, and perhaps 30% of the stalls openly displayed obviously pirated goods, including Lacoste shirts, Puma and Adidas shoes, Dolce & Gabanna and Chanel handbags, caps with the New York Yankees logo, perfume and sunglasses. EconOff counted only six stalls selling media carriers (three offering films (with German subtitles),two offering music, and one offering Nintendo games). EconOff did not notice any police or border guard presence. Kostrzyn sits on a road running straight into Berlin, and the majority of cars in the parking lot had German license plates. ¶15. (SBU) While Kostrzyn is clearly a pirate market, it is important to distinguish among countries in the region. A representative of an apparel company with responsibility for both Poland and the Czech Republic stated that the problem with border markets in the Czech Republic is three times worse than in Poland. Post has seen no evidence of new markets on Poland's eastern border springing up following Poland's entry into the Schengen Zone. -------------- Optical Media -------------- ¶16. (SBU) In early February 2009, Polish police dismantled the "Masterbox" organized crime operation. This operation distributed about nine million albums throughout Europe. Losses to the music industry alone were about EUR 19 million. The losses to the film industry may have been two or three times higher still. This is believed to be the largest copyright infringing disc operation ever shut down by police action in Europe. In a press release after the raids, IFPI, an organization representing the worldwide interests of the recording industry, commented that, "The decisive action taken by Polish police shows the country is no safe haven for such criminal enterprises." ¶17. (SBU) Disturbingly, it appears the Masterbox gang was using two legal and registered optical disc production facilities. Prior to the raids, contacts had indicated that while the current optical disc decree could be strengthened, it was adequate, and that pressed pirate discs with pre-release or newly released content had not been discovered in Poland for some months. The optical disc decree establishes controls on, and requires licensing of, optical media manufacturing capacity and equipment. It mandates the use of source identification (SID) codes on locally manufactured CDs. Producers should report material inputs and exports of optical media. In fact, contacts describe the reporting requirements under the decree as so detailed as to make it difficult for industry to comply, and for the Ministry of Culture to review industry submissions. -------------- Internet Piracy WARSAW 00000225 005.2 OF 008 -------------- ¶18. (SBU) Over the past year, Polish government authorities have noticeably increased their understanding of how internet pirates operate, and the tactics that can be used to counter them. The number of internet users has grown to about 16 million people, or about 41% of the population. IIPA monitored downloads of 13 game titles in December 2008. Polish BitTorrent eDonkey users were estimated to have downloaded more than 393,000 infringing copies, making Poland one of the top five infringing countries surveyed. According to ZPAV, 45% of internet users download music from the internet. However, compared to 2006, the number of peer-to-peers users significantly dropped, from 74% in 2006 to 41% in 2008. In constrast, the number of internet users downloading music from legitimate online music services is on the rise. Compared to 2006, this figure almost doubled, from 15% to 28%. ¶19. (SBU) Officials representing E-Bay in Poland, as well as ZPAV and FOTA, identified lack of access to credit cards among Polish youth as a key factor limiting legitimate online commerce. Internet shoppers can sometimes use the PayPal payment system, but otherwise there are no workarounds for the lack of credit cards. Even if consumers have credit cards, they may not be able to buy legally the products they want. For example, the Itunes online music store will not accept credit cards issued in Poland. FOTA notes internet delivery of view-on-demand video generally is not available in Poland, one reason movie theaters recorded record ticket sales last year. (One local satellite television company recently began offering view-on-demand services, but the selection of titles is very limited.) ¶20. (SBU) The police are increasingly active in internet piracy cases. FOTA stated 40% of the police investigations of pirated films were dedicated to internet piracy, and almost half of 863 police raids and 856 criminal cases involved internet piracy. ZPAV states that, at its request, the police initiated 703 cases against file sharers in peer-to-peer networks. In 2008, the Polish police took down three "top sites" located on university servers in Poland. ¶21. (SBU) Police knowledge of how to handle these cases has risen. Since October 1, 2007, the Police Academy issued a manual for police officers and prosecutors on the operation of peer-to-peer protocols, uncovering copyright infringement on the internet, and collecting evidence in such cases. A protocol for handling internet cases is available on the servers of the Police Academy. However, expertise and resources for handling internet cases are not evenly distributed among all police units around the country. ¶22. (SBU) ZPAV reported that most Polish Internet Service Providers (ISPs) do not proactively monitor their systems for pirated content. However, most ISPs did react promptly to requests from ZPAV to remove infringing music from their servers. Some were unwilling to block peer-to-peer service hubs simply at ZPAV's request, but generally will cooperate with the Polish police. Nevertheless, a study by ZPAV of cases initiated between October 2006 and November 2008 found that 30% of the cases were dismissed because it was not possible to identify from ISP records the individual user responsible for distributing illegal content. The Ministry of Culture was unaware of any cases where an ISP was held liable for copyright, trademark or patent infringement, but stated ISPs are required to provide information in such cases. Poland does not have a "notice and takedown" law. ¶23. (SBU) DC is the most commonly used peer-to-peer service, and is most frequently found on academic networks (because universities tend to have the best computer equipment and the largest concentration of users hungry for "free" music and films). In 2008, industry groups sent over 200 letters to Polish universities, and are working with the universities to adopt internal rules that would prohibit users of academic networks from using the networks to distribute pirated files. -------------- Government Software -------------- ¶24. (SBU) Poland's Law on Copyrights and Related Rights WARSAW 00000225 006.2 OF 008 requires all government institutions to use licensed computer programs. Post has received no reports of illegal software being used by the Polish government, and no rights holders have identified this as an issue in Poland. -------------- Treaties -------------- ¶25. (U) Poland has ratified both the 1996 WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Poland takes an active role in WIPO, and in 2008 the president of the Patent Office was a candidate to become WIPO Director General. The Patent Office has also been active in ensuring that key international texts relating to IPR are available in Polish. For example, in 2008 the Patent Office published the first Polish language legal commentary on the landmark Paris Convention for the Protection of Industrial Property. -------------- Pharmaceuticals -------------- ¶26. (SBU) In January 2009, the Polish Ministry of Health added 10 innovative drugs without generic competitors to its list of drugs eligible for reimbursement from the National Health Service. (ref A) This is in addition to the 33 new active substances added to the reimbursement list in 2007. Thanks to those 2007 additions, throughout 2008 most U.S. innovative pharmaceuticals companies operating in Poland told EconOff they were meeting or exceeding their earnings targets. Companies were also adding employees, at least until the global financial downturn began to hit the real Polish economy. ¶27. (SBU) Despite apparent growth in sales and revenues in the innovative pharmaceuticals sector in 2008, in several ways the industry's frustrations with market access deepened, as regulatory processes became even less transparent: -- It remains unclear what criteria the Health Ministry uses to determine which drugs, or categories of drugs, to add to the reimbursement list. -- The Ministry continued to fail to meet deadlines in Polish law for deciding whether to add a given drug to the reimbursement list. (However, whether there is a backlog of applications is not a straightforward matter. Ministry officials assert that in many cases companies have failed to update or re-file an application in accordance with procedures adopted subsequent to the original filing, or have failed to respond to requests for supplemental data. In some cases, the Ministry either decided a drug is not sufficiently cost effective to justify adding it to the list, or rejected the price proposed by a producer, but the producer refuses to accept this as final action by the Ministry.) -- The Ministry of Health met once in 2008 with the American Chamber of Commerce's Committee on Pharmaceuticals. Despite promises given by senior Polish officials to USG officials to continue a dialogue with American companies, the Ministry has not responded to repeated requests to set up another meeting. -- In an effort to prevent corruption, the Ministry introduced strict new rules for meetings of Ministry officials with individual companies. It now takes about six months to arrange a 30-minute meeting with regulators. -- The Ministry began requiring a positive assessment from the Health Technology Assessment Agency (AOTM). Similar assessments are required in many other European health care regulatory systems. However, the Ministry initially refused to permit AOTM to meet with company officials. Pharmaceuticals companies complain that AOTM's methodologies are either unclear or inappropriate, but AOTM officials told EconOff that their methodologies are publicly available and conform to general European practices. Companies complain that the AOTM process takes too long, but one should also note that companies would prefer to have an application delayed within AOTM rather than receive an expeditious negative recommendation on the cost effectiveness of their product. WARSAW 00000225 007.2 OF 008 -- At the end of 2008, the Ministry adopted a regulation prohibiting sales calls on doctors and hospitals during working hours. Companies assert this substantially disrupted their business plans. -- The Ministry is drafting an amendment to the Pharmaceuticals Law that would require companies to sell their drugs at fixed prices, eliminating their ability to give rebates to particular pharmacies. Innovative companies assert that this would limit their ability to compete and would raise prices for patients. A Deputy Minister of Health told EmbOffs that the Ministry is still discussing internally whether to include such a provision in whatever bill is eventually introduced. ¶28. (SBU) These genuine market access frustrations should be distinguished from failure to protect intellectual property. Three years ago post's input for the 2005 Special 301 report stated, "The Polish government has been less than aggressive in protecting intellectual property rights (read data exclusivity) in the past; however, now we are dealing with the legacy of the ghost of the data exclusivity past, with no strong evidence of new violation of TRIPS obligations being brought forth. It is understandable that the innovative drug industry is frustrated with its lack of market access, but we believe the best way to assist the industry is to focus on tangible issues that we can attack now, rather than go through the repetitive and less effective process of reminding the Poles of their international obligations." (ref B) That statement is even more applicable today. ¶29. (SBU) Polish legislation still provides six years of data protection for products registered in Poland. However, Poland does extend the European "8-2-1" term of protection to all products registered at the EU level. As a practical matter, all new products are in fact registered at the EU level (especially if the company producing the product is a major innovative pharmaceuticals company with international operations). Consequently, the lesser degree of protection for Polish-registered products is of little or no commercial significance. ¶30. (SBU) As stated in post's Special 301 submissions for both 2006 and 2007 (refs C and D),and as we reaffirm now for 2008, we have seen no new evidence of specific IPR violations related to data exclusivity with American firms, and no U.S. pharmaceutical firm has reported to us a new case of patent infringement. Moreover, PHRMA's Special 301 submission fails to identify a single instance of a specific drug's patent being infringed. ¶31. (SBU) The 2008 Special 301 Report cited as a reason for keeping Poland on the Watch List "Poland's lack of coordination between its health and patent authorities to prevent the issuance of marketing approvals for unauthorized copies of patented pharmaceutical products, as well as reported lack of adequate enforcement remedies when generic pharmaceutical products are launched during the term of an innovator's patent." However, post knows of no reason to believe that in fact any such products received marketing approval or were launched in 2006, 2007 or in 2008, and has no reason to believe that is likely to occur in 2009. -------------- Comment -------------- ¶32. (SBU) Poland has come a long way in protecting IPR. In 2007, Poland improved its IPR legislation, closed the most notorious market for counterfeits in eastern Europe, and improved control of its eastern border. In 2008, the Poles improved information sharing among enforcement agencies. Rights holders across the board praised cooperation with the police, who notably conducted a substantial number of investigations regarding internet piracy during the last year. The Poles also continue to build capacity, taking advantage of training offered by the U.S. government. We still have concerns about activity at markets on Poland's border with Germany, although these appear to be shrinking. In terms of legislation and education, we believe Poland provides fairly strong protections. Poland is not free from pirated goods, but the government recognizes the remaining problems, is addressing them, and generally making progress. WARSAW 00000225 008.2 OF 008 The IPR situation in Poland today is substantially changed from the situation several years ago. The Polish government's efforts to protect IPR should be recognized. Consequently, we recommend that Poland be removed from the Special 301 Watch List. ASHE