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Cablegate: Tunisia: 2008 Special 301 Review

VZCZCXRO6232
PP RUEHTRO
DE RUEHTU #0172/01 0561043
ZNR UUUUU ZZH
P 251043Z FEB 08
FM AMEMBASSY TUNIS
TO RUEHC/SECSTATE WASHDC PRIORITY 4483
INFO RUEHAS/AMEMBASSY ALGIERS PRIORITY 7620
RUEHEG/AMEMBASSY CAIRO PRIORITY 1566
RUEHLO/AMEMBASSY LONDON PRIORITY 1422
RUEHNK/AMEMBASSY NOUAKCHOTT PRIORITY 0960
RUEHFR/AMEMBASSY PARIS PRIORITY 1895
RUEHRB/AMEMBASSY RABAT PRIORITY 8509
RUEHTRO/AMEMBASSY TRIPOLI PRIORITY 0194
RUEHCL/AMCONSUL CASABLANCA PRIORITY 4190
RUEATRS/DEPT OF TREASURY WASHINGTON DC PRIORITY
RUCPDOC/USDOC WASHDC PRIORITY

UNCLAS SECTION 01 OF 04 TUNIS 000172

SIPDIS

SENSITIVE
SIPDIS

STATE FOR EEB/TPP/IPE (BOGER) AND NEA/MAG (HARRIS)
STATE PASS USTR (GROVES AND BURKHEAD)
USDOC FOR ITA/MAC/ONE (NATHAN MASON), ADVOCACY CTR
(REITZE), AND CLDP (TEJTEL AND MCMANUS)
USDOC PASS USPTO (ADAMS, BROWN AND MARSHALL)
CASABLANCA FOR FCS (ORTIZ)
EGYPT FOR FCS (MOEZIE)
LONDON AND PARIS FOR NEA WATCHER

E.O. 12958: N/A
TAGS: ECON ETRD KIPR TS
SUBJECT: TUNISIA: 2008 SPECIAL 301 REVIEW

REF: A. STATE 9475
B. TUNIS 68
C. 07 TUNIS 1249
D. 07 TUNIS 1135
E. 07 TUNIS 992
F. 07 TUNIS 271
G. 06 TUNIS 2771
H. 06 TUNIS 2424

-------
Summary
-------

1. (SBU) Post recommends that Tunisia not be placed on the
Special 301 Watch List. GOT officials at the highest levels
-- including President Ben Ali himself -- continue to
publicly stress the importance of intellectual property
rights (IPR), demonstrating the high-level commitment that
exists for IPR protection. While more work remains to be
done in preventing optical disc piracy, in 2007 the GOT's
interagency IPR enforcement brigade conducted 735 raids,
leading to the issuance of 314 infractions, the closure of 73
establishments and 34 court cases. This year several US
pharmaceutical companies received authorization to import
products that were previously restricted under the GOT's
"correlation system." However, not all US pharmaceutical
companies have been able to remove their products from the
list of correlated products. In addition, US pharmaceutical
companies express lingering concerns that Tunisia does not
protect data exclusivity, despite GOT assertions that it is
fully TRIPS-compliant. Although we would like to see more,
and faster, improvements on IPR enforcement and final
resolution of outstanding US pharmaceutical company concerns,
we believe that constructive engagement, including through
the TIFA process, is the best approach to resolve ongoing IPR
concerns. End Summary.

--------------------------------
Commitment at the Highest Levels
--------------------------------

2. (U) GOT officials at the highest levels -- including
President Ben Ali himself -- continue to publicly stress the
importance of intellectual property rights (Ref E). IPR is
considered a legal tool for the protection of products and an
incentive to stimulate economic development. The GOT's lead
agencies for IPR protection -- the National Institute for
Standardization and Industrial Property (INNORPI - Institut
National de la Normalisation et de la Propriete Industrielle)
and the Tunisian Copyright Protection Organization (OTPDA -
Organisme Tunisien de Protection des Droits d'Auteur) -- are
active participants in USG-funded training, including
workshops and seminars sponsored by the US Patent and
Trademark Organization (USPTO). Additionally, GOT officials
in ministries such as Commerce, Justice, Development and
International Cooperation, Public Health and Communications
are also stressing the importance of intellectual property
rights. In a February 15 meeting with Econ/CommercialOff to
discuss the Special 301 review Ministry of Commerce Director
of WTO Relations Wajdi Khemakhem maintained that Tunisia is
WTO compliant. He also said that the GOT continues to beef
up its IPR enforcement. According to Khemakhem, Tunisia's
Department of Economic Control and Competition continues its
efforts to prevent and control counterfeit products through
raids, warnings, and seizures, including working to get the
large retailers such as Geant and Monoprix to remove pirated
optical media from their shelves. Media coverage of GOT
enforcement operations, as well as official statements and
private sector commentary in support of IPR, continue to
raise public awareness on this issue.

--------------------------------------------- ------------
Compliance with TRIPS and Other International Obligations

TUNIS 00000172 002 OF 004


--------------------------------------------- ------------

3. (U) The GOT states that it is in full compliance with
TRIPS and all international obligations for which it is a
signatory. Tunisia is a member of the World Intellectual
Property Organization (WIPO) and is a signatory to
international conventions, including: the United Nations
(UNCTAD) Agreement on the Protection of Patents and
Trademarks, the Berne Convention for the Protection of
Literary and Artistic Works, and the Paris Convention
Regarding Trademarks, among others. Although GOT officials
note that in the case of a discrepancy international
obligations supersede Tunisian law, new legislation which is
ready to be submitted before President Ben Ali will remove
any potential contradictions (Ref E). (NOTE: Pharmaceutical
company concerns with TRIPS-compliance and the GOT response
to such concerns are addressed in para 8 and 9, respectively.
END NOTE.)

--------------------------------
Enforcement Steps Up... Somewhat
--------------------------------

4. (SBU) Enforcement of Tunisia's solid IPR legislation
remains the most significant weakness in the GOT's IPR
regime. During 2007, the GOT's interagency enforcement
brigade reported 735 control operations, which led to the
issuance 314 infractions. This represents a slight increase
from the nearly 700 raids conducted in 2006. In 2007,
enforcement raids led to the closure of 73 establishments and
to the submission of 34 cases before the courts. (NOTE:
These court cases are still pending. END NOTE.) New GOT
legislation that is ready to be submitted to the President
should improve enforcement capabilities by easing the
procedural burdens required to seize counterfeit goods and
granting OTPDA enforcement authority (Ref E).

------------------------------
Slow Progress on Optical Media
------------------------------

5. (U) Optical media piracy remains widespread. Although
French retail chain Carrefour voluntarily removed pirated
optical discs from its shelves in response to GOT pressure in
2006 (Ref G), several major retailers -- including
supermarket chains Geant and Monoprix -- continue to stock
pirated CDs and DVDs. GOT officials have sent warnings to
these retailers, but have yet to follow up the letters with
enforcement. In addition to retail sale, pirated optical
discs continue to be sold by small shop owners and at major
markets (Ref D).

--------------------------
Software Piracy Decreasing
--------------------------

6. (SBU) Software piracy remains a concern, but the rate of
software piracy appears to be decreasing annually. The
Business Software Alliance shows that while the overall rate
of software piracy remains high -- 79 percent for 2006 -- it
has decreased from a high of 84 percent in 2004. Following
the signature of an agreement with the GOT in 2006 (Ref H),
Microsoft has noted improved cooperation with the GOT --
including GOT purchases of licensed Microsoft software.

--------------------------------------------- ---
Pharmaceuticals: Progress and Lingering Concerns
--------------------------------------------- ---

7. (SBU) In January 2007, the GOT suspended the "correlation
system" which excluded drugs manufactured abroad in favor of
locally produced generics (Ref F). However, drugs placed on
the list of correlated pharmaceutical products prior to the

TUNIS 00000172 003 OF 004


suspension continued to be excluded from the marketplace.
Following the suspension of the "correlation system," several
US pharmaceutical companies have successfully removed their
products from the list of correlated products and can now
import them. In several cases where US company appeals are
still pending with the Ministry of Public Health, these
companies have been granted temporary import authorization.
Despite these successes, other US pharmaceutical companies
have thus far been unsuccessful in receiving import approval
for their products. During a recent meeting with the
Ambassador, Minister of Public Health Mondher Zenaidi
expressed his willingness to discuss and resolve any problems
US pharmaceutical companies were experiencing with regard to
correlation (Ref B).

8. (SBU) US pharmaceutical companies express lingering
concerns that the GOT does not meet its obligations on data
exclusivity and data protection (Ref F). The GOT continues
to assert that it is in full compliance with TRIPS and other
international obligations. The Embassy and other high-level
visitors have repeatedly raised pharmaceutical concerns with
data exclusivity during meetings with GOT officials.
Minister for Development and International Cooperation
Mohamed Nouri Jouini stated that if the United States
demonstrates that Tunisia is not TRIPS compliant, the GOT
will address the problem (Ref C). When asked about whether
the GOT was prepared to address the data protection and data
exclusivity concerns of the US phamaceutical companies,
Ministry of Commerce official Khemakhem said that if a US
company could provide specific case evidence, he would be
willing to investigate the issue.

---------------------
Geographic Indicators
---------------------

9. (SBU) The GOT passed a new law (no. 2007-68) in December
2007 setting up a regime for the creation and protection of
geographic indicators for Tunisian handicrafts. The Embassy
will monitor implementation of this law and report
accordingly.

-------
Comment
-------

10. (SBU) Although we would like to see more, and faster,
improvements on IPR enforcement and final resolution of
outstanding US pharmaceutical company concerns, we do not
believe that placing Tunisia on the Special 301 Watch List
would positively influence either course of events. In our
view, designating Tunisia as a Priority Watch List country
would not alter GOT behavior, but would reduce our ability to
press for enhanced IPR compliance. The Embassy actively
engages the GOT by stressing IPR enforcement and
pharmaceutical concerns in meetings with GOT officials and
through technical assistance programs and training. GOT
officials regularly participate in USPTO course offerings in
the United States and will participate in a USPTO copyright
enforcement seminar planned for March in Tunis. The TIFA
Council scheduled for March 10-11 will provide the best
opportunity to address continuing IPR concerns. IPR is the
focus of one of the four TIFA working groups and we encourage
private sector participation, particularly from
pharmaceutical companies, during these meetings. We believe
that constructive engagement between pharmaceutical companies
and the GOT through the TIFA process, rather than watch
listing, is the best approach to resolve ongoing
pharmaceutical company concerns and IPR enforcement issues.
End Comment.

Please visit Embassy Tunis' Classified Website at:
http://www.state.sgov.gov/p/nea/tunis/index.c fm

TUNIS 00000172 004 OF 004


GODEC

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