Cablegate: Ustr Visit Makes Progress On Ip Protection, Tifa Agenda

DE RUEHBD #0043/01 0290821
R 290821Z JAN 08





E.O. 12958: N/A

Ref: A) 07 Bandar 276 B) 07 Bandar 165 C) 06 Bandar 12


1. (SBU) Assistant USTR Barbara Weisel opened the door for closer
Government of Brunei cooperation with the USG and rights-holders on
enforcement of intellectual property rights. She also suggested
that the GoB submit comments for the Special 301 process by the
February 29 deadline and that it could review industry submissions
before drafting its own response.
Continuing a dialogue under the U.S.-Brunei Trade and Investment
Framework Agreement (TIFA), Weisel asked for greater transparency on
halal food certification and also encouraged Brunei to join the
multi-chip integrated circuit agreement (MCP). In an interagency
meeting and in side meetings conducted by USPTO Senior Director
Peter Fowler, the GoB representatives discussed how to take better
advantage of USG-supported training and agreed to reach out to
rights holders to coordinate new enforcement initiatives. END

IPR Enforcement - Way Forward

2. (SBU) In a brief visit to Brunei January 19, Assistant USTR
Barbara Weisel met with Ministry of Foreign Affairs and Trade
Permanent Secretary Dato Lim Jock Hoi to press for further
improvement in Brunei's IPR enforcement efforts (see also refs A &
C) and advance our dialogue on issues under the U.S.-Brunei Trade
and Investment Framework Agreement (TIFA) (ref B). Dato Lim brought
in representatives from the Police, Customs, and Attorney General's
Office to an interagency meeting to demonstrate the seriousness with
which the GoB is now addressing IPR enforcement issues. AUSTR
Weisel was joined by Rachael Bae of USTR, Peter Fowler, Senior
Counsel for Enforcement at the U.S. Patent and Trademark Office's
Global Intellectual Property Academy (GIPA) and DCM.

3. (SBU) Dato Lim opened the interagency meeting noting that as
Brunei seeks foreign direct investment, as well as to expand its
high technology and finance industries, it will need to do better on
IPR protection. Lim added that Brunei wanted to identify common
concerns wQh the USG and set a plan of action.

4. (SBU) Attorney General's Chambers (AGC) representatives briefed
that a draft law to address gaps in current legislation was under
review. The U.S. side noted that meeting TRIPs requirements was no
longer sufficient, as international best practices have advanced to
reflect the technological changes (i.e. the digital revolution) that
create new opportunities for IP fraud, as well as enforcement. AGC
reps stated that the draft law under consideration would add a range
of best-practice provisions, including setting a volume threshold
for a presumption that production was being made for resale; adding
documentation and jurisdictional presumptions; and allowing police
to seize reproduction equipment. Noting the small staff working IPR
issues, the AGC representatives welcomed technical assistance from
the USG. However, the GoB representatives did not immediately
accept a USG offer to review the draft law and provide expert

5. (SBU) Responding to U.S. questions about industry complaints of
pirated optical disks (OD) being produced in Brunei for export,
Police asserted that they have no information about mass production
of disks in Brunei, but would follow up on any specific intelligence
on this the USG or industry could provide. AGC and Police
representatives noted that no IPR complaints had been filed for all
of calendar 2007, and urged that rights holders come to Brunei and
work with law enforcement to protect their assets. They are aware
that some retail shops and individuals are burning ODs on a small
scale for retail sale. However, a lack of complaints filed by
rights holders limits police authority to initiate enforcement
actions under current law. AGC reps reinforced that without
assurances of industry cooperation, the AGC would be reluctant to
invest resources prosecutions that have limited chances for

6. (SBU) USTR's Bae noted that recent industry filings under the
Special 301 process would make it possible that the next 301 report
could mention Brunei. U.S. reps noted the February 29 deadline for
the GoB to respond to any 301 filings by industry. Bae and GIPA's
Fowler urged that the GoB amend its laws to give police greater
ex-officio authority to seize pirated goods. To encourage
cooperation, industry would want to see that there is a strong

BANDAR SER 00000043 002 OF 003

possibility of success in seizing counterfeit goods, prosecuting
violators, and more strongly penalizing the convicted to deter
future violations. Fowler observed that any legal changes should
also allow for so-called collecting societies representing broad
groups of rights holders to legally represent and initiate
investigation and prosecution of individual violators.

7. (SBU) GoB reps responded that they would welcome USG help in
encouraging industry representatives to come to Brunei. They stated
that police and customs could accept as sufficient to initiate
enforcement a simple letter from the rights holder asserting rights
to specific OD titles (or other products), and for Customs, also
indicating authorized distributors. Authorities could detain goods
on this basis, but would need to be assured that the rights holder
would quickly provide the technical and documentary assistance
necessary to begin a legal case against a suspected violator. It
was now Brunei practice to bring in a prosecutor into the earliest
stages of investigation to ensure that law enforcement actions would
lead to a prosecutable case.

8. (SBU) AUSTR Weisel wrapped up the IPR discussion by noting that
improving communication with rights holders was critical to
improving enforcement and that both sides could take concrete steps
to improve on the current situation. She challenged that as the USG
looks to deepening its trade relationship with Brunei, improved IPR
protection will be essential. Weisel suggested that a follow up,
detailed discussion on IPR issues be held in the near future and
said the U.S. would look at adding such a discussion as part of or
in parallel to the next U.S.-Brunei TIFA meeting in Washington.
Dato Lim agreed that a follow up discussion would be helpful.
Catching IPR violations at the border through Customs action offered
the best, immediate step forward, but he noted that cooperation with
rights holders remained essential.

Training Opportunities

9. (SBU) At the interagency meeting and in side meetings conducted
by USPTO GIPA Senior Counsel Fowler, the GoB requested capacity
building assistance, including training for Police, Customs, and
Attorney General's Chambers staff. Fowler offered to develop an
integrated training plan, including specific bilateral training, as
well as regional training for Brunei and its ASEAN partners. Dato
Lim suggested that Brunei might be able to host some of the regional
training events to maximize GoB agency participation.

Urge Joining MCP

10. (SBU) Weisel recapped the initiatives discussed under the
U.S.-ASEAN TIFA at the Senior Officials Meeting recently in
Singapore, stating that ASEAN members joining the Multichip
Integrated Circuit Agreement (MCP) could also move forward
bilaterally. Noting that the MCP was the next generation ITA,
Weisel said that the USG goal was ultimately to bind tariffs on
these products at zero. Dato Lim noted that Brunei was not party to
the ITA but adhered to its spirit in practice. He said that Brunei
would review the MCP internally, adding that ASEAN was discussing
whether its members should wait and, if all agree, join as a group.

Need Greater Clarity on Halal Rules

11. (SBU) Dato Lim briefed that he would be the technical lead for
Brunei's delegation to the WTO Trade Policy Review (TPR). Brunei
had completed its report on time in October, but Lim expected to
provide several updates at the TPR, given the impact of the global
credit crunch and the rising interest in the role of sovereign
wealth funds.

12. (SBU) Weisel stated that the United States would be likely to
raise agricultural policy, noting that Brunei's rules on halal food
product standards were difficult to understand. Lim said that
Brunei considers halal to be a phyto-sanitary issue (SPS) but had
also notified the WTO of its standards as a technical barrier to
trade. Lim assured that the GoB will apply halal rules uniformly
and in a non-discriminatory manner, and that the rules will be
transparent and available to all interested parties. Lim plans to
bring representatives from the Ministry of Religious Affairs, as
well as from the Agriculture and Customs Departments to the TPR to
help explain Brunei's halal food policies.

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COMMENT: Follow up needed

13. (SBU) Weisel's visit takes us a step further in our dialogue
(ref A) to improve the GoB's enforcement of intellectual property
rights. This is the first time we have heard all the key GoB
agencies speaking with the same voice on IPR issues. In a follow up
to this visit, DCM introduced Microsoft's resident representative to
senior Royal Brunei Police officials to help them begin to work more
closely with on enforcement activities. We believe that further
progress on IPR enforcement will depend, to a large extent, on our
continuing to help the GoB rebuild relationships with rights-holders
so that both sides will feel confident their interests are protected
and much-needed enforcement activities can be re-initiated.

14. (U) USTR cleared this message.


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