Cablegate: Intellectual Property Rights (Ipr) Roundtable In

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

271526Z Oct 05




E.O. 12950: N/A

1. (U) Summary: U.S. Commerce Deputy Assistant Secretary
Eric Stewart and Spain's Under Secretary of Culture
presided over a day-long U.S.-Spain IPR Roundtable in
Madrid on September 28. This event stemmed from former
Commerce Assistant Secretary William Lash's February 27
Roundtable proposal to his Spanish interlocutors (reftel).
Two issues emerged as key: the alleged lack of
implementation of the GOS's IPR anti-piracy plan, and a
provision in Spain's draft implementing legislation to the
EU's copyright directive to allow three "private copies" of
CDs. The head of the local association representing video
store owners also criticized GOS anti-piracy actions
aggressively. The GOS actually invited USG comments on the
anti-piracy plan, which gives us a good opening for follow-
up. There was also positive press coverage. The Roundtable
intentionally focused on copyright because this is where
USG commercial interests are at stake; the U.S. currently
has few patent and/or trademark related problems in Spain.
End Summary.


2. (U) DAS Stewart was accompanied by Deputy Office
Director Dascher. Other principal USG speakers included
Department of Justice Senior Counsel Eric Klumb and United
States Patent and Trademark Attorney-Advisors Michael
Shapiro and Michael Smith. SCO and Trade Policy Officer
also participated. Culture Ministry Under Secretary
Hidalgo, Technical Secretary Concepcion Becerra,
Subdirector Colmenares and Area Director Raquel Orts
participated. The Ministry of Industry, Tourism and Trade
sent one representative for a fairly technical segment.
Local trade associations sent representatives. MPA's
Brussels-based Europe anti-piracy director attended, as
well as a London-based Time-Warner executive.


3. (U) The Roundtable agenda included the following
elements. Opening Statements Presentation on Spanish anti-
piracy plan Presentation on U.S. domestic anti-piracy
strategy International Aspects of IPR Cooperation GOS-
Industry Working Group on Internet IPR Issues Intellectual
Piracy in the Age of the Internet, and the Challenge of
Reconciling Technology and Content Provider Interests.

Closing Statements - Press Conference. There were two hours
of time for comments/questions from attendees. In addition,
DAS Stewart hosted a lunch for Under Secretary Hidalgo and
DCM Manzanares hosted a reception for all the attendees.


4. (SBU) As expected, Spain's anti-piracy plan was the
center of the attendees' attention. All of the attendees
expressed support for the plan but felt that not enough was
being done on implementation. The Federacion para la
Proteccion de la Propiedad Intelectual de la Obra Audiovisual
(FAP) representative, Jose Manuel Tourne, Promusicae's D.
Antonio Guisola, and the head of Union Videografica Espanola
(UVE), Jordi Molist, were especially critical. (Note:
Promusicae is associated with the International Federation of
Phonographic Industries and FAP is associated with the Motion
Picture Association of America (MPAA). The Business Software
Alliance (BSA) did not send a representative, although they
were invited). Essentially, they said that not enough
resources were being devoted to the area, and that nobody had
been appointed to head the plan yet. The FAP representative
complained that the Ministry of Culture had reneged on a
commitment to allow FAP to use the Ministry logo on an anti-
piracy campaign. He also called for criminalizing the
consumption of pirated goods. All of the attendees had good
words for the police but complained about judges and
prosecutors - the plan envisages a Ministry of Justice
circular to prosecutors instructing them to take IPR crimes
more seriously, but this circular has still not been issued.
The UVE representative was particularly scathing, saying that
many of UVE's member firms were going out of business due to
piracy. The Ministry of Culture left the career official,
Pedro Colmenares, take the brunt of the criticism.
Colmenares asked for patience and noted that prior to April 8
this year no government had crafted anything similar to the
anti-piracy plan. He also suggested that market reasons were
negatively affecting video and DVD rental stores, as well as
piracy. (Note: The MPAA representative privately agreed that
business reasons, as well as piracy, was affecting DVD/video
rental stores. He said the trend now was for consumers to
buy the product or get it from other distribution channels.)
With respect to criminalizing pirated good consumption,
Colmenares said that France and Italy did indeed have such
legislation on the books, but that those countries did not
actually enforce it.


5. (SBU) Spain is currently crafting implementing
legislation for the EU Copyright Directive. The current
draft contains a provision allowing for three private copies
of CDs. Trade Policy Officer's understanding is that this
would, in effect, make Technological Protection Measures
(TPMs) for movie and music CDs illegal if they prevented
consumers from making private copies. The FAP representative
was particularly critical of this provision. He also noted
that the movie industry was different from the music
industry. He contended that there might be a legitimate
reason for consumers to make copies of music CDs. However,
this was not the case for movies because almost every copy of
a movie CD displaced a sale that would otherwise have been
made. He wants a provision in the law stating that rights-
holders have the right to determine whether private copies
are permissible, and that copies would only be allowed under
the TRIPS agreement's "three step test" (i.e. that exceptions
shall be limited to certain special cases which do not
conflict with the normal exploitation of the work and do not
unreasonably prejudice the legitimate interests of the rights
holder). The GOS concedes that there is no "right" to make
private copies. However, the Spaniards claim that the draft
legislation is sufficiently flexible to allow for more
restrictions if the private copy exception does indeed prove
to be ruinous to copyright-based industries in Spain. The
FAP representative said his organization would like to see
this organized more or less along the lines of Italy's draft
which would allow for only one copy. (Comment: This is
clearly a huge issue for some U.S. companies. The Time Warner
representative attended the Roundtable mostly to follow this
matter. She said that a similar provision was being proposed
in France, but that because the French movie industry finally
saw the dangers associated with uncontrolled private copying,
the French government might adopt legislation less
potentially prejudicial.)


6. (SBU) DAS Stewart hosted a lunch for Under Secretary
Hidalgo and his staff. Stewart mentioned the Special 301
process and noted that pharmaceutical problems related to
intellectual property, as well as copyright issues, influence
Special 301 determinations. (Note: In Spain, other
Ministries determine pharmaceutical market access issues.
The government's cost containment measures are, a concern to
the R&D-based pharmaceutical industry in Spain, including for
American firms. In another meeting described in septel, U.S.
pharmaceutical industry representatives told Stewart that an
agreement between the Ministry of Health and industry on this
topic has not been reached, which contradicted press reports
saying that a deal had been reached. Industry
representatives also raised concerns regarding patent
protection for goods covered by Spain's older process patent
system. Industry reps believe that Spain may not be
compliant with its TRIPS commitments, in this respect.
Technical Secretary Concepcion Becerra noted that industry
was never pleased with the government. She mentioned that the
government had had to beat back attempts by the local
industry to get the government to impose protectionist
measures (screen quotas, for instance). Later, during the
DCM's reception, Under Secretary Hidalgo also said that this
was a problem. Becerra added that she would welcome USG
comments on the government's anti-piracy plan. ( Comment:
This gives us an opening to continue the dialogue with the

7. (U) DAS Stewart and Under Secretary Hidalgo conducted a
press conference upon the conclusion of the Roundtable. The
daily, El Mundo, and press agencies EuropaPress and EFE
carried stories on the event on September 29. The stories
were factual and basically recounted statements made by DAS
Stewart and Under Secretary Hidalgo.

- -----------------------
Follow-up and Suggestion

8. (U) Trade Policy officer will draft a letter for DAS
Stewart's signature commenting on the anti-piracy plan. Key
elements in the draft will include praise for the
comprehensive nature of the plan; a plea for arriving at an
agreement with industry re: what to do about private
copies; appointing an accountable head of the plan
expeditiously; issuing a Ministry of Justice circular
emphasizing the importance of imposing deterrent-level
sentences on IPR violators; publicity campaigns developed in
consultation with stakeholders etc.

9. (U) One thing the Commerce Department might want to
consider is to invite Spain to a U.S.-Spain IPR conference
in the United States next year. This could be an important
tool in keeping momentum on IPR issues going, and in making
credible the notion that the U.S. and Spain are, in fact,
partners in combating IPR piracy.

10. (SBU) This was, at times, a confrontational event with
three industry representatives criticizing the GOS severely.
In the end though, the GOS and industry representatives
conducted animated and substantive conversations on the
margins of the Roundtable and during the reception. Our sense
is that this event may serve to galvanize the GOS into
stronger action in safeguarding copyrights, and was thus a
useful initiative in serving our IPR policy objectives in

© Scoop Media

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