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Cablegate: Special 301 - Raise Turkey to Priority Watch

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

UNCLAS SECTION 01 OF 02 ANKARA 000977

SIPDIS


DEPT FOR EB/TPP/MTA/IPC - SWILSON/JURBAN AND EUR/SE
DEPT PASS USTR FOR LERRION/BPECK
DEPT PASS LIBRARY OF CONGRESS
DEPT PASS USPTO FOR ELAINE WU
USDOC FOR ITA/MAC/DDEFALCO


SENSITIVE


E.O. 12958: N/A
TAGS: ETRD KIPR TU
SUBJECT: Special 301 - Raise Turkey to Priority Watch
List


Ref: (A) State 29549 (B) Ankara 608 and previous
(C) Ankara 866


1. (U) This cable contains action requests in para 10.


Summary
-------


2. (SBU) Although there are signs that the GOT is
preparing to improve enforcement through a ban on street
sales, copyright and trademark piracy has remained
persistently high in Turkey. Turkey has also failed to
provide data exclusivity protection, or to address
policies which discriminate against or disadvantage
foreign drug companies. Embassy supports elevating
Turkey from the Watch List to the Priority Watch List in
the 2004 Special 301 Review, and urges Washington
agencies to pursue sustained engagement with the GOT on
intellectual property issues. End Summary.


3. (SBU) Post has lobbied the GOT repeatedly at senior
levels over the past few years on lack of data
exclusivity protection and other issues facing the
pharmaceuticals sector, and on improving
copyright/trademark enforcement. Thus far, the GOT has
not taken major steps on either set of problems.
Raising Turkey to the Priority Watch List would send an
appropriate signal of concern about gaps in Turkey's IPR
regime.


Pharmaceuticals
---------------


4. (SBU) Citing concerns on data exclusivity, patent
linkage and market access barriers which could cost
member companies USD 600 million this year, the
Pharmaceuticals Research and Manufacturers Association
(PhRMA) recommended elevating Turkey to Priority Foreign
Country status in its recent Special 301 submission.
The GOT has said that it plans to take a decision on
data exclusivity soon, but the Turkish proposal is
likely to include a lead time of at least two or three
years and might be limited to only a few years of
protection initially (ref B). Furthermore, the GOT has
at times disputed the U.S. position that the WTO TRIPS
Agreement Article 39.3 on protecting test data requires
data exclusivity.


5. (U) A February 14 GOT decree limits pharmaceuticals
prices in Turkey to a maximum of 90 percent of the
average of the lowest two prices prevailing in a group
of five European countries. While the measure does not
appear to have an intellectual property angle, it may
contain WTO-inconsistent provisions giving preference to
local manufactures, does not set objective pricing
criteria or remedy mechanisms for companies applying
under the decree and worsens an already problematic
policy environment for the industry.


Copyright and Trademarks
------------------------


6. (U) Both the International Intellectual Property
Alliance (IIPA) and the International AntiCounterfeiting
Coalition (IACC) recommend that Turkey remain on the
Watch List based on continued high levels of piracy and
counterfeiting, and call on the GOT to improve
enforcement. Embassy agrees that enforcement has been
the key failing in Turkey's copyright/trademark regime.


7. (U) The Culture Ministry has drafted legislation
aimed at strengthening IPR protection. The bill, which
has been vetted by Parliament's Education Commission,
would ban street sales of all copyright products and
authorize all law enforcement units to make seizures
(ref C and previous). However, it would also reduce
penalties for piracy, on the rationale that current
penalties are perceived by the judicial system to be too
severe and are thus not applied at all. Although IIPA
members have some reservations about the bill, Turkish
artists have publicly expressed support for the bill.


8. (U) The GOT intends to join the WIPO "Internet"
treaties in the near future. The treaties are currently
under review at MFA's legal division. While encouraging
GOT officials to join the treaties, Embassy has pointed
out to the Culture Ministry that implementing
legislation will be necessary to address some gaps in
current copyright law. Culture Ministry officials are
of the opinion that current Turkish law, along with the
amendments currently under consideration, is sufficient
to implement the treaties, but they are receptive to a
dialogue with USG experts on this question.


9. (U) A decree directing use of authorized software by
GOT agencies was issued in 1999.


Action Request
--------------


10. (SBU) Over the last few years, Embassy has pressed
the GOT on IPR concerns at senior levels without results
on pharmaceuticals issues, and with only limited results
in the copyright/trademark areas. We support raising
Turkey from the Watch List to the Priority Watch List in
the 2004 Special 301 review. With appropriate,
sustained engagement with Washington participation on
IPR issues, we believe this step could prod the GOT to
action. AUSTR Novelli's January letter to Foreign Trade
Undersecretary Kayalar in January was helpful in raising
the profile of this issue. Embassy recommends that
Washington agencies also consider dispatching an
interagency IPR delegation to Ankara, and sending high-
level correspondence, such as a joint letter from USTR
Zoellick and Commerce Secretary Evans to State Minister
Tuzmen.
Edelman

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