Special 301 La Paz Input

UNCLAS LA PAZ 000368 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: ECON ETRD KIPR BL SUBJECT: Special 301 La Paz Input REF: 10 STATE 3361 ¶1. (SBU) Summary: Post recommends that Bolivia remain on the Special 301 Watch List in 2010. Bolivia's new constitution, passed by referendum on January 25, 2009, includes references to protection of intellectual property rights (IPR),but only for indigenous groups by name. Bolivia protects copyrights and registers patents and trademarks through existing laws. However, concerns about trade secret protection, piracy, and counterfeiting continue to be serious problems. The Morales administration has installed new leadership at the Servicio Nacional de Propiedad Intelectual (SENAPI),the Bolivian intellectual property body, and these authorities appear more engaged. However, with limited resources and a history of lax enforcement, it remains to be seen whether significant progress can be made. End summary. New Constitution Limits IPR Protection ¶2. (U) Bolivia belongs to the World Intellectual Property Organization and is a signatory to the Nice Agreement and the Paris, Bern, and Geneva Conventions. As a member of the Andean Community (CAN) it has pledged to abide by the intellectual property decisions of the CAN. National law specifically supports IPR for genetic material, and indigenous groups and their patrimony, however, it limits protection for medicines. ¶3. (U) The constitution provides for protection of all domestic genetic and micro-organic resources, as well as the knowledge associated with their use and exploitation. This protection will be achieved in part through registry in a system yet to be created. For all the resources not registered, Article 381 of the constitution says the State will establish procedures for their protection with a law that has yet to be written. ¶4. (U) Article 100 of the new constitution states the State will also protect the learning and knowledge of indigenous people by means of intellectual property registration. The constitution acknowledges the right of indigenous nations and people to the collective intellectual property of their intelligence, sciences, and knowledge, as well as their valuation, use, promotion and development (Article 30). Article 304 further specifies that indigenous people can safeguard, through registration, collective intellectual property related to knowledge of genetic resources, traditional medicine, and germ plasma. ¶5. (U) The constitution specifically limits IPR related to medicines in Article 41 which specifies that the right of access to medicines cannot be restricted by intellectual property or trade rights. Significant Copyright Protection Exists on Paper ¶6. (U) Bolivia's copyright law (Law 1322, 1992) predates the international standards established under the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) and falls short of obligations under the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty. ¶7. (U) However, the existing copyright law does protect literary, artistic, and scientific works for the lifetime of the author plus 50 years. Bolivian copyright protection includes the exclusive right to copy or reproduce works; to revise, adapt, or prepare derivative works; to distribute copies of works; and to publicly communicate works. Although the exclusive right to translate works is not explicitly granted, the law does prevent unauthorized adaptation, transformation, modification, and editing. The law also provides protection for software and databases. ¶8. (U) The copyright law protects the rights of Bolivian authors, foreign authors domiciled in Bolivia, and foreign authors published for the first time in Bolivia. Foreigners not domiciled in Bolivia enjoy protection to the extent provided in international conventions and treaties to which Bolivia is a party. ¶9. (U) The film and video law (Law 1302, 1991) contains elements of IPR protection, establishing a National Movie Council (CONACINE) to oversee the domestic film industry and requiring that all films and videos shown or distributed in Bolivia be registered with the organization. However, IPR Violations are Widespread and Enforcement is Practically Nonexistent ¶10. (U) Video, music, and software piracy rates are among the highest in Latin America, with the International Intellectual Property Alliance estimating that piracy levels have reached 100% for motion pictures and over 90% for recorded music. There are no legal sources of audio-visual materials in most of the country, since it would be impossible to compete with pirated products prices: in the capital of La Paz there is only one store that sells legal CDs. Bootleg CDs, DVDs, computer software, pharmaceutical products, and other goods are sold on street corners and in stores across the country. A recent survey conducted by the Center for Investigation, Education and Services (Centro de Investigacion y Educacion y Servicio - CIES) in four cities involving 540 men and women, shows that 87% of the population buy pirated movies, music, software, and books. Vendors operate with no fear of punishment, relying on an agreement signed in 2006 by the Cinema Worker's Union (Sindicato de Trabajadores Cinematograficos de La Paz),the Mayor's Office, and local film vendors, which allows the selling of pirated CDs, but prohibits the sale of films of local production, pornography, and newly released films. ¶11. (U) The existing copyright law recognizes copyright infringement as a public offense and the 2001 Bolivian Criminal Procedures Code provides for the criminal prosecution of IPR violations. However, the enforcement of intellectual property rights remains insufficient. Criminal charges are rarely filed, and civil suits, if pursued, face long delays. Criminal penalties are limited to up to five years in jail, and civil penalties are restricted to the recovery of direct economic damages. Some Bolivian customs authorities continue to try to intercept counterfeit goods shipments at international borders, but the customs service lacks the human and financial resources needed to be effective. ¶12. (SBU) The Morales administration has drafted new medical legislation, which is still under debate. The proposed law would strengthen restrictions on the sale of pharmaceutical products and will impose harsh sanctions on companies or persons who operate outside this law. In spite of these efforts, foreign companies still have little confidence in the system. Drug companies, in particular, are reluctant to file patents in the country, fearing trade secret theft and counterfeiting. After six years, Merck recently won a validation patent lawsuit. However, the company is skeptical that the court's ruling requiring that all laboratories remove products from the market and pay compensation will actually be enforced. In December 2009, the Ministry of Health conducted an operation which uncovered the manufacturing of counterfeit pharmaceutical products and the repacking of expired products. The operation concluded with the authorities seizing over 30 tons of pharmaceutical products (anti-inflammatory agents, pain killers, and others). The authorities closed down the operation, revoked their license, and began a legal process against the owners of the charged company. Possible Opportunity for Improvement E ¶13. (U) In an effort to create a new image, as of December 2009, the GOB appointed a new executive director with a legal background to SENAPI. SENAPI's primary goal under this new administration is to establish an enforcement law and build a library to house Bolivia's intellectual property materials. However, although the government has increased patent fees to 20 times their previous rate (an action that is being contested by the Asociacion Boliviana de Propiedad Industrial or ABPI),the funds generated are distributed to the general fund and not allocated specifically to IPR efforts, and the organization's budget remains extremely limited. Comment ¶14. (SBU) Post continues to be pessimistic about the short-term prospects for greater recognition and protection of IPR. President Morales has shown little interest in protecting intellectual property, particularly property belonging to non-Bolivians. While the IPR situation in Bolivia merits continued standing on the Watch List, Post recommends against any stronger action at this time as placement of Bolivia on the Priority Watch List would have no positive practical result, and the effectiveness of any future IPR education and outreach would be damaged by Bolivian reaction to a change in Special 301 status. For these reasons, Post recommends no/no change to Bolivia's Special 301 Watch List status. Creamer