Cablegate: Ipact Workshops On Ipr Enforcement Advance Stop -

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: IPACT Workshops on IPR Enforcement Advance STOP -
Strategy Targeting Organized Piracy

REF: (A) Pretoria 1697

(B) 2004 Pretoria 4424
(C) State 129471

1. Summary. This wrap-up cable reports on the seven
workshops on IPR enforcement funded by INL that the U.S.
Embassy organized with IPACT. The workshops succeeded in
raising awareness of the seriousness of IPR issues and of
ways to enforce the law more effectively in South Africa.
Some 244 prosecutors attended the workshops held in seven
provinces. The workshops promoted a common cause and good
relations between the prosecutors and private sector
defenders of IPR. Many of the attorneys who made
presentations represent U.S. companies with IPR interests in
South Africa. The workshops established a useful precedent
for future workshops with South African prosecutors and
magistrates. We hope INL will continue to assist with
funding for future projects. End Summary.

2. South Africa has an advanced legal framework of
intellectual property rights (IPR) on the books. Because of
the demands on prosecutors to deal with the widespread
vicious and violent crimes occurring daily in South Africa,
however, it can be difficult to get them to focus on IPR
crimes. In order to help remedy this situation, the U.S.
Embassy brainstormed with the Intellectual Property Action
Group (IPACT) to come up with a practical way to improve the
enforcement of IPR laws in South Africa. Working together,
we decided to organize a number of workshops on IPR
enforcement in eight of South Africa's nine provinces
between September 2004 and May 2005. (The sparsely
populated Northwest province was the only one where we did
not organize a workshop.)

3. As we were formulating the project, the former INL
officer at post raised the proposal generally with South
Africa's Director of National Prosecutions, who supported
the idea. The National Prosecuting Authority of South
Africa was instrumental in the success of the project.
Following a meeting with members of IPACT and the U.S.
Embassy in early 2005, the Deputy Director of the National
Prosecution Service advised prosecutors throughout the
country to attend the workshops. Her active coordination
accounts for the large turnout of prosecutors (244), which
roughly ranged from 61% (Port Elizabeth) to 84% (Durban) of
all the national prosecutors in the seven provinces invited
to attend. Some drove over a hundred miles to attend. Many
of the absences were due to illness or distance.

4. Microsoft, one of the members of IPACT, hosted the pilot
workshop for this series at its offices in Johannesburg
(reftel A) in September 2004, in which scores of prosecutors
from the Gauteng province attended. Subsequently, the
Department of State's Office of International Narcotics and
Law Enforcement Affairs (INL) provided funding for follow-up
workshops as follows:

Place Date Number of

Polokwane, Northern Province March 7, 2005 32
Nelspruit, Mpumulanga March 8, 2005 18
Kimberley, Northern Cape April 6, 2005 28
Bloemfontein, Free State April 7, 2005 36
Cape Town, Western Cape May 3, 2005 65
Port Elizabeth, Eastern Cape May 4, 2005 27
Durban, KwaZuluNatal May 5, 2005 38

Total 244

5. The local chief prosecutor and an IPACT representative
opened each workshop with welcoming remarks. A member of
the U.S. Embassy's Economic Section also spoke to underscore
the economic significance of IPR to the United States and to
South Africa and underlined the Administration's new
Strategy Targeting Organized Piracy (STOP) initiative. The
one-day workshop featured IPR attorneys from IPACT speaking
on particular features of South Africa's intellectual
property laws, followed by Q&As and a discussion with the
prosecutors. Presenters included the Recording Industry of
South Africa (RISA), the South African Federation Against
Copyright Theft (SAFACT), the Business Software Alliance
(BSA), Microsoft, and attorneys from the law firms of Adams
& Adams, Bowman Gilfillan, DM Kisch, and Spoor and Fisher.
Presenters also ran various anti-piracy videos, including
one on counterfeit goods and one currently shown daily in
cinemas by SAFACT. The topics covered were:
-- Copyright
-- Trade Mark
-- Procedures under Counterfeit Goods Act of 1997 ("CGA")
- Elements of Offence
- Time Periods and Sentencing
-- Presentation on Films and Publications Act
-- Expert evidence preparation and procedure
-- Admission of Guilt in terms of S 115A of the Criminal
Procedure Act ("CPA")and Plea Bargain
-- Evidence and presumptions in terms of S 16 of the CGA
-- Chain of Evidence
-- Analysis of product
-- The use of civil orders in criminal proceedings
-- Sentencing in terms of S 19 of the CGA read with the
Adjustment of Fines Act
-- Section 10 of the CGA
-- Knowledge in terms of S 2(2) of the CGA

Practical success advancing enforcement

6. The workshops were successful in advancing enforcement
of IPR law with those responsible for prosecuting the laws
in the following ways:

-- Clarifying the timetable for actions under the
Counterfeit Goods Act, e.g., deadlines for issuing seizure
notices and summons

-- Addressing the issue of how to access court transcripts

-- Encouraging better ways for case planning prior to
seizures and arrests

-- Developing cases more adequately and sufficiently

-- Eliminating flight risk of defendants

-- Answering questions on practical enforcement issues

-- Delivering counterfeit goods to brand owners for
destruction to reduce the risk of counterfeit goods making
their way back to the streets

-- Considering which laws would be most useful to
prosecutors in pursuing counterfeiters - Financial
Intelligence Sector Act, Terrorist Prevention Act, or the
Criminal Procedures Act

-- Addressing issues surrounding the constitutionality of
the "presumptions" in the Counterfeit Goods Act

-- Reminding prosecutors that the Adjustment of Fines Act
gives prosecutors additional leverage in the sentencing
aspects of cases

-- Facilitating cooperation between prosecutors and brand

-- Explaining techniques for discerning between counterfeit
and legitimate products

-- Evaluating issues of flexibility between the Criminal
Procedures Act (CPA) and the Counterfeit Goods Act (CGA)

-- Considering issues of admissibility of statements made by
suspects to police officers, DTI inspectors, and customs

-- Clarifying the difference between an "expert statement"
(CPA) and an "analysis statement" (CGA)

-- Discussing how many samples of counterfeit goods had to
be analyzed in order to satisfy the requirement that a "fair
sample" be tested, such as in a case where 5000 CDs/DVDs may
be seized

-- Describing the difficulty in getting expert testimony
from overseas witnesses due to distance and expense in
flying them to South Africa

-- Considering the acceptability of using satellite
testimony using SABC facilities as well as those of private
law firms

-- Helping prosecutors become better aware of the tools at
their disposal to enforce intellectual property rights

-- Providing the public with greater awareness of the issues
through interviews with the media

-- Promoting the Strategy Targeting Organized Piracy (STOP).

Upcoming USPTO Regional Conference

7. In September 2005, the U.S. Patent and Trademark Office
(USPTO), with funding from EB and INL, will host a regional
African conference on counterfeit medicines in Johannesburg
(reftel C). Post is currently working with SAG officials
and various IPACT members to identify appropriate speakers
and participants for this event. We attribute much of the
cooperation that we have received from the SAG and the
private sector in our request for assistance on this event
to the goodwill that was established in the course of
setting up the IPR workshops for prosecutors.

Next steps

8. The prosecutors at each workshop recommended that IPACT
conduct the same workshop with South African magistrates.
Post has proposed such a project in reftel B. Prosecutors
also expressed their hope that this was just the beginning
of an ongoing effort to provide better training and
education to prosecutors and that follow-up workshops would
be available. Post endorses the idea of follow-up
workshops. Prosecutors expressed appreciation for the U.S.
funding of the events. IPACT presenters were equally
generous in their acknowledgement to the United States for
making these events possible through INL funding. We want
to maintain the positive momentum that we have helped to

Recent SAG Successes

9. On May 31, 2005, the Department of Trade and Industry
(DTI) issued the following press release to announce a
landmark case in the criminal prosecution under IPR law:



In a watershed ruling on the criminal conviction and
sentencing of counterfeiters, Mr Ferhard Mohamed was found
guilty by the Pretoria Specialised Commercial Crimes Court.
He was sentenced R90 000 or 18 months imprisonment with a
further 18 months suspended for 5 years. This means the 18
month imprisonment will come into immediate effect should
Mohamed again be convicted of counterfeiting within the next
five years.

The sentence is the result of the actions by inspectors from
the DTI in September 2004. The DTI acted on a complaint
lodged by Adidas SA (Pty) Ltd, Levi Strauss (Pty Ltd,
Ferrari S.p.A and Nissan South Africa (Pty) Ltd against
Mohamed who operates from the business, City Wholesalers, in
the Asian Bazaar in Pretoria.

The DTI inspectors seized more than 440 products. This was
not the first time Mohamed had been found to be in
possession of counterfeit goods. During a previous raid by
the DTI inspectors approximately 1800 counterfeit products
were seized. Counterfeit goods destined for Mohamed were
also previously detained and seized by the customs officials
from the South African Revenue Services. The Court
considered this to be aggravating circumstances in handing
down the sentence.

The sentence sends a clear message from all law enforcement
authorities that counterfeiting will not be tolerated and
speaks out about the seriousness with which South African
courts view counterfeiting.

Note: Ms Lana van Zyl, Director of Investigations,
Office of Company and Intellectual Property Enforcement in
DTI, issued this press release. She has been accepted into
the USPTO's Enforcement Academy class in September. Her
deputy, Ms. Amanda Lotheringen, attended the Enforcement
Academy recently. Both of these SAG officials have attended
IPACT workshops in the past year.

10. The local media also reported on July 26 that the
police, working with the South African Federation Against
Copyright Theft (SAFACT), had raided the Montana flea market
near Pretoria four times in recent weeks. The most recent
raid resulted in the seizure of 1,848 counterfeit DVDs from
four stalls.

11. Counterfeiting remains a serious issue in South Africa.
It is an uphill fight. Still, the recent examples in
prosecuting IPR criminals and raiding flea markets shows
that South African government officials are aware of the
problem and are taking steps to promote IPR protection. The
Embassy hopes that INL will continue to assist us in our
efforts to promote a culture favoring IPR enforcement by
funding future projects with IPACT.


© Scoop Media

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