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Cablegate: 2008 Special 301 Review - Nigeria

VZCZCXRO3440
PP RUEHMA RUEHPA
DE RUEHUJA #0324/01 0520917
ZNR UUUUU ZZH
P 210917Z FEB 08
FM AMEMBASSY ABUJA
TO RUEHC/SECSTATE WASHDC PRIORITY 2123
RUEHZK/ECOWAS COLLECTIVE
RUEATRS/DEPT OF TREASURY WASHDC
RUCPDOC/DEPT OF COMMERCE WASHDC
RUEAWJA/DEPT OF JUSTICE WASHDC
RHEBAAA/DEPT OF ENERGY WASHDC

UNCLAS SECTION 01 OF 02 ABUJA 000324

SIPDIS

SENSITIVE BUT UNCLASSIFIED

SIPDIS

STATE PASS TO USTR FOR AGAMA
TREASURY FOR PETERS AND HALL
USDOC FOR 3317/ITA/OA/KBURRESS
USDOC FOR 3130/USFC/OIO/ANESA/DHARRIS
DOJ FOR MKOUAME
DOE FOR CGAY AND GPERSON

E.O. 12958: N/A
TAGS: ETRD KIPR PGOV PREL NI
SUBJECT: 2008 SPECIAL 301 REVIEW - NIGERIA

REF: STATE 9475

SENSITIVE BUT UNCLASSIFIED--PLEASE HANDLE ACCORDINGLY

1. (SBU) Intro and Summary: The Government of Nigeria (GON),
Nigerian industry and U.S industry recognize the serious
Intellectual Property Rights (IPR) problems in Nigeria. There have
been some successes in IP enforcement; however, convictions are rare
owing to long and tortuous judicial processes which discourage
rights owners from seeking redress in court. Nigeria is a member of
the World Intellectual Property Organization (WIPO), a party to the
Universal Copyright Convention (UCC), the Berne Convention, and the
Paris Convention for the Protection of Industrial Property, and has
signed the WIPO Copyright Treaty and the WIPO Performances and
Phonograms Treaty. Legislation pending in the National Assembly is
intended to establish a legal framework for an IPR system that
complies with WTO obligations, though current law, especially with
regards to copyrights, provides a solid basis for enforcing
copyrights and combating piracy. GON officials responsible for IPR
issues are open to cooperation and collaboration with the U.S. and
concerned industries; however, the GON IP agencies are not well
funded and have not yet worked out smooth coordinative mechanisms.
This message identifies steps the GON could take to avoid being
designated in 2008. Post recommends an approach focused on
continued cooperation rather than public designation. End Intro and
Summary.

2. (SBU) Optical disc piracy, software piracy, and counterfeit
pharmaceuticals are problems in Nigeria. The Nigerian and American
recording industries have raised serious concerns about optical disc
replicating plants mostly owned by Southeast Asians that are located
in the country. In an effort to combat optical disc piracy, the GON
enacted the Copyright (Optical Disc Plants) Regulations in December
2006. The regulations prescribe a registration process for all
optical disc replicating and duplicating plants in Nigeria;
prescribe the use of personal identification numbers and source
identification codes; and make it mandatory for every plant to
maintain a register for all works produced by them showing the name
of the author, title of work, year of production, and quantity of
work produced. Though the Nigerian Copyright Commission (NCC) has
raided and sealed up some optical disc replicating plants, no
convictions have been obtained; in one case, evidence was destroyed
at a public "anti-piracy" event and thus could not be used in court.
Some plants produce both legal and pirated disks from the same
machines. Team Nigeria Law Enforcement Working Group plans to meet
with the NCC in March to explore ways forward.

3. (U) There has been tremendous success in the fight against
counterfeit pharmaceuticals. The National Agency for Food and Drug
Administration and Control (NAFDAC) is responsible for regulating
drugs and food. NAFDAC has been able to reduce the number of
counterfeit pharmaceuticals consumed in Nigeria through conducting
raids in various markets nationwide, apprehending counterfeit
pharmaceutical imports at the borders, and closing down factories
manufacturing sub-standard pharmaceuticals. Though some people
complain that NAFDAC is high-handed, the authorities would prefer to
curtail the hazards posed by counterfeit and sub-standard
pharmaceuticals, thereby saving lives.

4. (U) Software piracy is a serious problem, though companies such
as Microsoft in conjunction with the NCC have been able to ensure
that some high profile violators such as banks obtain the required
software license. Though the use of unlicensed software is rampant,
the NCC advises that the rights holder makes a formal complaint
before it can conduct a raid in the premises of the software pirate.


5. (U) The GON IP agencies often complain about low funding from the
national budget. This problem is not only confined to IPR agencies,
however. Almost all GON agencies are not properly funded. The GON
agencies that receive good funding are the big spending ministries
such as defense and works (road construction). The NCC has
requested additional funding in the 2008 Budget awaiting passage by
the National Assembly.

6. (U) GON officials responsible for IP admit that there are
problems related to IP enforcement especially in the area of
building capacity. The United States Patents and Trademarks Office,
in collaboration with the U.S. Department of Justice and the U.S.
Department of Commerce's Commercial Law Development Program (CLDP),

ABUJA 00000324 002 OF 002


continues to provide training to Nigerian IP officials and Judges.
The training has improved the way the IP officials do their work
according to GON contacts. The January 30 - February 1, 2008 CLDP
training for Nigerian Judges was done in coordination with National
Judicial Institute and the Intellectual Property Law Association of
Nigeria (IPLAN), with the Chief Justice of the Federal High Court
present at the training, likewise Justice Niki Tobi, Justice of the
Supreme Court of Nigeria, representing the Chief Justice of the
Federation.

7. (SBU) Post agrees that IP enforcement is weak. This problem is
not confined to IPR issues, however. In virtually every field of
legal and criminal activity, enforcement is very weak. Even in high
profile, high priority areas for the GON such as anti-corruption
efforts and efforts to combat advance fee fraud popularly called 419
or areas where there is intense international pressure and scrutiny
such as drug trafficking, enforcement continues to be limited, slow
and ineffective, reflecting the very low capacity of Nigerian law
enforcement institutions. This is a systemic problem that will not
yield to quick fixes.

8. (SBU) Although post does not dispute that software, print and
particularly optical media piracy is a serious and growing problem
in Nigeria, post is concerned that placing Nigeria on the 301 Watch
List could be counterproductive to our overall and IPR goals. We
would note the GON is aware of the problem, is taking steps to
address the problem, and the attitude of GON officials responsible
for IPR issues is open and responsive to U.S. messages on the issue.
Recent IP trainings conducted in Nigeria by DOC's CLDP, DOJ, and
USPTO are part and parcel of a strategic approach towards building a
fruitful and lasting relationship which will eventually assist us in
achieving our IPR goals. Placing Nigeria on the Watch List risks
turning a cordial, cooperative relationship into one that is more
adversarial and defensive, and ultimately less productive.

9. (SBU) The timing in particular of this year's review is
problematic. The result of the last presidential election is being
challenged and the outcome could be known in the coming weeks.
Though the 2007 elections were flawed, the USG sees Nigeria as a
partner that needs to be encouraged on its path of reform. Embassy
continues to engage the host government on a variety of issues and
continues to receive a lot of cooperation from GON officials even at
the highest levels. There is a growing recognition of the need to
construct a robust, progressive, and enduring relationship between
our two countries.

10. (SBU) For the reasons given above, post would not recommend
putting Nigeria on the 301 Watch List for 2008, the admitted
problems with IPR enforcement notwithstanding.

11. (SBU) At the same time, we need to assure U.S. and Nigerian
industry--and make clear to our GON counterparts--that we are not
giving Nigeria a "free pass." While we do not recommend
designation, at the same time, we believe the GON needs to take at
least one of the following steps to stay off "The List" in 2008:
--Increased funding for NCC and clear plan to use it, especially
towards enforcement;
--Raids of illegal disc plants, with attention on proper evidence
collection during raids;
--A conviction and/or plant shut down;
--Dedicated NCC enforcement unit, led by a law enforcement
professional; stronger working relationship between the NCC and the
EFCC; or
--Other concrete bilateral cooperation on enforcement, whether at
the federal or state level,.

SANDERS

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