Cablegate: Got's Views On Special 301 Review Of

This record is a partial extract of the original cable. The full text of the original cable is not available.





E.O. 12958: N/A
SUBJECT: GOT's Views on Special 301 Review of
Intellectual Property Protection

1. (SBU) On April 10, Oya Karakas, Head of Department in
the MFA General Directorate of Multilateral Economic
Affairs, sent Embassy the following note on intellectual
property protection in Turkey. The note contends that
data exclusivity protection for pharmaceuticals is not
required by the TRIPS Agreement. Embassy recommends
that Washington agencies rebut Turkey's position on this
by providing talking points for Embassy and/or
transmitting a letter on this subject from a senior U.S.
official. We also wonder if it might be possible to
generate a letter from the WTO Secretariat confirming
that TRIPS does require data exclusivity. Once the
regional crisis is over, Embassy suggests Washington
agencies consider sending a representative to Ankara to
engage the Turks on IPR issues, and on data exclusivity
in particular. We note that the EU has recently stepped
up its campaign to persuade Ankara on this issue.

2. (SBU) Begin Text MFA Note:



Since we consider protection of intellectual property as
an important tool to encourage and promote human
creativity and productivity, we aim at meeting
international standards and fulfilling our commitments
stemming from international agreements in the area of
intellectual property protection.

In this context, we have already adopted relevant
international agreements in order to create an
environment where a certain level of intellectual
property protection is ensured. However, a transition
period is required before full implementation and
enforcement of new legislation. The process to impose
new trade rules takes a certain time even in developed
economies. As a developing economy Turkey has so far
achieved a significant progress despite risks of
unemployment and short-term losses of income.

So far, we have welcomed criticisms brought forward by
our trade partners in the framework of our international
commitments, such as those voiced at the World Trade
Organization TRIPS Council during the review of our
legislation, which was successfully concluded. In this
connection, we attach importance to comments of the
United States Government and its "Special 301 Review".

In the context of "Special 301 Review", we have had a
satisfactory level of cooperation with the US Government
up to now and we expect this to continue. We are also
pleased with the interest of the US companies and the
concerned specialised associations in the implementation
and enforcement of intellectual property protection in

The points, raised by these associations, namely IIPA,
IACC and PhRMA, and the comments mentioned in their
submissions, have received Turkish Government's due
consideration and our relevant authorities have studied
them in detail with respect to their technical aspects.

Regarding the comments of IIPA and IACC, we have noted
the mentioned problems of implementation and
enforcement. Our efforts to improve the capacity and
expertise of law enforcement authorities in this field
are further increased. In this connection, we should
also take into account the economic situation in the
aftermath of a severe financial crisis. Since, immediate
implications of enforcement of intellectual property
protection are unemployment and loss of income for some
segments of society; in some cases this issue becomes
very sensitive. As we all know, accommodation of
intellectual property protection and development issues
is a widespread matter of debate in various
international fora. We should also bear in mind that
some alleged copyright violations concern educational
materials and this requires a special attention.
Nevertheless, we appreciate the relatively balanced
approach of these two associations and again we assure
that these comments will receive our due consideration
and appropriate measures will be taken accordingly.

In the reports of the IIPA and IACC, there are certain
remarks concerning the court proceedings and the
sentences, which claim that the courts are not
sufficiently expedient, the procedures are extremely
burdensome for the right holders, the sentences are not
deterrent and there are delays and procedural hurdles.
In general these observations do not reflect the whole
picture. The Turkish legislation and the relevant
regulations, concerning the intellectual property
protection and its enforcement are in conformity with
the international agreements, which both Turkey and the
US are party of. The competent judicial authorities are
implementing this legislation accordingly. We are aware
of some practical shortcomings about the implementation;
nevertheless the Ministry of Justice is taking measures
to eradicate these problems.

Some of the complaints are stemming from the fact that
the Turkish legal system has characteristics different
from the US system. Therefore, American companies, which
are not accurately informed about the procedural details
of legal proceedings, are sometimes facing some
unexpected developments, which are interpreted as delays
and burdens. If these problems are brought to the
attention of relevant authorities, further clarification
can be made in order.

As for the criticisms regarding the administrative
measures, relevant instructions given to the
administrative authorities. In this context, we should
bear in mind the dynamic nature of the intellectual
property rights to be protected and the advantages of
the counterfeiters who make use of modern technology.
However, the Turkish Government is taking measures to
cope with the piracy to ensure proper enforcement and
enhance the existing infrastructure. On the other hand,
we also see cases where American companies are not well
aware of the administrative procedures and details and
their complaints are not justified in all cases. Again,
if the problems faced are brought to the attention of
relevant authorities, further clarification can be made
in order.

In this connection, we also wish to emphasize the fact
that positive developments are not properly reflected in
these reports. The implementation and enforcement of
intellectual property rights has been improved in the
course of the last year and there is growing level of
awareness in this issue.

As for the comments of PhRMA, needless to say health
issues have a special dimension in the context of
international trade regulations. Public health is such
an issue that it cannot be regulated only by trade
concerns. Special considerations of governments in
health and social policies should be given due respect.
As we know, one of the most heated debates of the WTO
Doha Development Agenda Negotiations is on this very
issue and there is a growing global concern on the
relationship between public health and intellectual
property protection.

Compared with other social policy issues, health
policies have a particular significance, since in some
cases it is a question of life or death. It is not a
surprise that health issues have a priority among others
for governments and they have particular connections
with economic and social policies. Therefore, in the
context of international trade, they require flexibility
more than other trade issues.

The comments of PhRMA, which seem to have a more bitter
tone, have also received our due consideration and
appropriate measures are taken accordingly.

Regarding these comments we wish to present an overview
of the current situation of intellectual property rights
and their implementation, concerning pharmaceutical

The Agreement on Trade-Related Aspects of Intellectual
Property Rights (the TRIPS Agreement) is the most
comprehensive international instrument ever negotiated
on intellectual property rights. TRIPS Agreement
established minimum universal standards concerning
patents and undisclosed information (trade secrets) as
well as copyrights, trademarks, industrial designs,
geographical indications and integrated circuits. Since
Turkey is a member of WTO and thus, a signatory to TRIPS
Agreement, our legislation on patents and protection of
undisclosed data is in compliance with the TRIPS

Although, Article 65 of the TRIPS Agreement gave Turkey
the right to delay granting pharmaceutical process and
products patents until 1 January 2000 and 1 January
2005, respectively, the Patent Decree No 551 came into
force in 1995. The new legislation was prepared in the
light of the TRIPS Agreement and the European Patent
Convention (EPC). Turkey began to file applications in
1995 and patents are granted since 1 January 1999.

Patentability criteria, protection term of 20 years,
compulsory license provisions of the Turkish legislation
are all compatible with the TRIPS Agreement.

A careful evaluation of the relevant Turkish legislation
clearly shows that Turkey provides higher patent
protection standards for pharmaceuticals than required
by TRIPS Agreement. The review of Turkish legislation on
intellectual property by TRIPS Council also proved the
conformity of the legislation in Turkey with the TRIPS

Data Protection

Data protection is an obligation foreseen by Article 39
of the TRIPS Agreement. Article 39 of the TRIPS
Agreement requires Members to protect undisclosed
information submitted to governments or governmental
agencies, as a condition of approving the marketing of
pharmaceutical or of agricultural chemical products
which utilise new chemical entities, against unfair
commercial use. Turkey also fulfilled its commitments on
data protection (protection of undisclosed data against
unfair commercial use) by amending its legislation.

There are five specific provisions of Turkish
legislation which should be mentioned: Firstly, Contract
Law, No. 818 brings obligation on the workers not to
divulge business secrets of the employee. They may also
be prohibited from dealing with competing works. The
remedy for the infringement is compensation of the
damages. Secondly, the Commercial Code provides that
seducing the employees, agents etc. into divulging
trading secrets of their employer, taking an illicit
advantage from trade secrets obtained incompatible with
good faith, or divulging them to others, constitute
unfair competition. The Code provides civil
(compensation for damages), and criminal sanctions
(Imprisonment and/or fire). Thirdly, the provisions of
the Patent Decree No. 551 are in conformity with Article
39.3 of the TRIPS Agreement concerning the marketing
procedures. Within this framework the Patent Decree No.
551 obliges public authorities (who take application for
marketing permission for pharmaceutical, agrochemicals
or veterinary products) not to disclose information and
test results, and keep them secret; and fourthly the
Regulation for Pharmaceutical Products which is in force
since 1996, brings the same responsibility to the
Ministry of Health to protect secrecy of information and
test results disclosed by the applicant during marketing
approval for pharmaceutical products. Lastly, the Civil
Servants Act No 657 supports the implementation of last
two pieces of legislation by bringing responsibility on
civil servants employed in the Ministries and public
institutions not to divulge secret business information
related to their services. Infringing the act of those
two pieces of legislation brings responsibility of the
public administration in accordance with Administrative
Law Principles and legislation prepared within the
framework of Article 125 of the Turkish Constitution
(Article makes available to bring action against all
acts and transactions of the public administrations).
In such cases the remedy is compensation apart from the
disciplinary and criminal responsibility of the civil

Data/Marketing Exclusivity

Data exclusivity and marketing exclusivity are not
covered by Turkish legislation, as it is the case in the
EU and the US. Only patented product is protected by the
Patent Law until the due date of the patent expires.

The data exclusivity is a provision of Article 4 of
Directive 65/65/EEC in EU and 21 U.S.C. Sec. 355
(c)(3)(D)(ii) in USA. The term "protection of
undisclosed information" in Article 39 of the TRIPS
Agreement is not the same as the "data exclusivity"
concept in the EU and USA, and it is misleading to treat
them as being synonymous.

Article 39 of the TRIPS Agreement only requires
protection of undisclosed information against unfair
commercial use. Data exclusivity is a TRIPS-plus
provision. Article 1 of TRIPS Agreement states that
"Members may, but shall not be obliged to, implement
their law more extensive protection than required by
this Agreement." Therefore, Turkey should not be imposed
to provide data exclusivity immediately.

Considering the competitiveness of domestic
pharmaceutical industry, it shall adopt its legislation
to include data exclusivity provision after a
transitional period through negotiations for full
membership to EU.

In return of our good will on the issue of intellectual
property protection, we expect the same positive and
reasonable attitude from the US Government throughout
the exchange of views on this issue prior to the
finalization of the "Special 301 Review".

End Text.

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