Cablegate: Subject: Notification Demarche Delivered: Tunisia

VZCZCXYZ0010
PP RUEHWEB

DE RUEHTU #2140/01 2301150
ZNR UUUUU ZZH
P 181150Z AUG 06
FM AMEMBASSY TUNIS
TO RUEHC/SECSTATE WASHDC PRIORITY 1612
INFO RUEATRS/DEPT OF TREASURY WASHINGTON DC PRIORITY
RUCPDOC/USDOC WASHDC PRIORITY

UNCLAS TUNIS 002140

SIPDIS

SIPDIS

STATE FOR EB/IPE (CLACROSSE/MANDAMO) AND
NEA/MAG(MAYA HARRIS)
STATE PLEASE PASS USTR (DBELL)
STATE PLEASE PASS USPTO (MADLIN)
USDOC FOR CLDP (MTEJTEL) AND ITA/MAC/ONE (NMASON)

E.O. 12958: N/A
TAGS: ECON ETRD KIPR TS
SUBJECT: SUBJECT: NOTIFICATION DEMARCHE DELIVERED: TUNISIA
2006 SPECIAL 301 (INTELLECTUAL PROPERTY)

REF: A. STATE 75848

B. TUNIS 1091
C. STATE 66147

1. ON AUGUST 7, ECONOFF DELIVERED REVISED DEMARCHE POINTS TO
AMOR TOUMI, THE MINISTRY OF PUBLIC HEALTH'S (MOH) DIRECTOR
GENERAL OF THE NATIONAL LABORATORY FOR THE CONTROL OF
MEDICATIONS. DEMARCHE POINTS WERE ALSO DELIVERED ON AUGUST
11, TO THE MINISTRY'S DIRECTOR GENERAL OF HEALTH, MR.
NOUREDDINE BOUZOUAIA AND DIRECTOR GENERAL OF THE
INTERNATIONAL COOPERATION UNIT, DR. HICHEM ABDESSELEM.
ECONOFF INFORMED MOH OFFICIALS THAT TUNISIA WOULD NOT BE
LISTED IN USTR'S 2006 SPECIAL 301 REPORT, BUT THAT THE USG
HAS CONTINUING INTELLECTUAL PROPERTY RIGHTS (IPR) CONCERNS
WITH REGARD TO DATA PROTECTION, PATENT LINKAGE, BORDER
ENFORCEMENT, AND WIDESPREAD SALE OF PIRATED PRODUCTS IN
TUNISIA. DISCUSSION THEN TURNED TO THE SPECIFIC DETAILS
RELATED TO TUNISIA'S INTERNATIONAL IPR COMMITMENTS UNDER THE
WTO'S AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL
PROPERTY RIGHTS (TRIPS). ALL THREE INTERLOCUTORS REITERATED
THAT PUBLIC HEALTH CIRCULAR NO. 40 IS 100 PER CENT TRIPS
COMPLIANT AS THE LANGUAGE USED IN THIS CIRCULAR IS IDENTICAL
TO TRIPS ARTICLE NO. 39.9. WHEREVER TRIPS ARTICLE NO. 39.3
USES THE WORD 'COUNTRY' CIRCULAR NO. 40 REPLACES IT WITH
'TUNISIA'. THIS IS THE ONLY DIFFERENCE IN LANGUAGE BETWEEN
THE TWO PUBLICATIONS.

2. INTERLOCUTORS ALSO EXPLAINED THAT CIRCULAR NO. 78 NO
LONGER EXISTS AS IT WAS SUPERSEDED BY CIRCULAR NO. 40.
ARTICLE 3 OF CIRCULAR 40 GRANTS A FIVE YEAR TERM OF DATA
PROTECTION IN TUNISIA. THE CIRCULAR PROTECTS DATA AGAINST
ANY DIVULGENCE UNLESS NECESSARY FOR PUBLIC HEALTH. THEY
STRESSED THAT GENERICS ARE NOT ALLOWED UNTIL AFTER THE FIVE
YEAR DATA PROTECTION PERIOD HAS EXPIRED. AFTER THIS FIVE
YEAR PERIOD ANY GENERICS GRANTED MARKET ACCESS ARE REQUIRED
TO ADOPT THE CHARACTERISTICS OF THE PATENTED DRUG. DATA
PROTECTION ALSO EXTENDS TO VETERINARY MEDICATIONS.

3. ACCORDING TO MOH OFFICIALS, CORRELATION IS SCHEDULED TO
END ON DECEMBER 31, 2006. MR. TOUMI POINTED OUT THAT
CORRELATION DEALT WITH ONLY 2 PER CENT OF THE PHARMACEUTICAL
MARKET AND THAT HE BELIEVED THAT THE END OF CORRELATION WILL
PRESENT ITS OWN PROBLEMS. THE MARKET WILL NOW BE OPEN TO
DRUGS FROM ALL COUNTRIES. THE GOT'S CENTRAL PHARMACY, THE
NATIONAL IMPORTER OF ALL DRUGS ENTERING TUNISIA, HAS BEEN
ONLY IMPORTING DRUGS LISTED IN U.S., JAPANESE, AND EU
PHARMACOPIA. THE END OF CORRELATION MEANS THAT TUNISIA WILL
BE FACED WITH PERHAPS LESS RELIABLE DRUGS FROM INDIA, CHINA,
OR OTHER COUNTRIES.

4. WHILE DISCUSSING THE DEVELOPMENT OF A PATENT LINKAGE
SYSTEM TO PREVENT PATENT-INFRINGING PRODUCTS FROM BEING
REGISTERED, ALL THREE INTERLOCUTORS STATED THAT TUNISIA DOES
NOT INTENTIONALLY REGISTER OR ACCEPT PATENT-INFRINGING DRUGS.
THEY ALSO POINTED OUT THAT DEVELOPING A PATENT LINKAGE
SYSTEM WOULD BE TRIPS-PLUS.

5. CUSTOMS OFFICIALS HAVE CONFIRMED THAT THEy DO HAVE EX
OFFICIO AUTHORITY. CUSTOMS HAS THE AUTHORITY TO INTERCEPT
AND SEIZE PIRATED OR COUNTERFEIT PRODUCTS WITHOUT A COMPLAINT
FROM THE PATENT HOLDER.

6. ON MAY 29, 2006, IN OBSERVANCE OF NATIONAL CULTURE DAY,
PRESIDENT BEN ALI ORDERED THE UPDATING OF THE COPYRIGHT LAW
1994-36 ON THE PROTECTION OF ARTISTIC AND LITERARY PROPERTY.
NEW LEGISLATION CURRENTLY BEFORE PARLIAMENT SEEKS TO GRANT
ENHANCED AUTHORITY TO THE TUNISIAN COPYRIGHT AUTHORITY,
(ORGANISME TUNISIEN DE PROTECTION DES DROITS D'AUTEURS -
OTPDA).

7. COMMENT. THERE HAS BEEN A MARKED CHANGE IN ATTITUDE
TOWARDS IPR AMONG TUNISIAN OFFICIALS, LEGAL EXPERTS, AND
BUSINESSES. THEY NOW CONSIDER IPR NOT ONLY A LEGAL TOOL FOR
THE PROTECTION OF A PRODUCT BUT ALSO AN INCENTIVE TO
STIMULATE ECONOMIC DEVELOPMENT. THE GOT HAS LAUNCHED A
CAMPAIGN TO EXPAND IPR AWARENESS AND TO FIGHT COUNTERFEITING
AND PIRACY. CONCURRENTLY, THERE HAS BEEN A NOTABLE INCREASE
IN THE NUMBER OF MEDIA REPORTS ON PROBLEMS RELATED TO
COUNTERFEIT PRODUCTS AVAILABLE IN THE COUNTRY'S MARKETS.
THIS HAS LED THE GOT TO TAKE A PROACTIVE LEGAL POSITION ON
IPR FOR THE FIRST TIME, AND TO INSTRUCT LOCAL AUTHORITIES TO
GIVE CUSTOMS OFFICIALS GREATER AUTHORITY TO SEIZE COUNTERFEIT
PRODUCTS WITHOUT REQUIRING A PRIOR COMPLAINT BY THE PATENT
HOLDER. GOVERNMENT OFFICIALS HAVE STEPPED UP RAIDS AGAINST
THE WELL-KNOWN PARALLEL MARKETS IN THE TUNIS AREA. THAT

SAID, PERHAPS FOR POLITICAL REASONS, THERE DOES NOT SEEM TO
BE ANY CONCERTED EFFORT AFOOT TO PREVENT LARGE RETAIL
ESTABLISHMENTS, SUCH AS CARREFOUR, FROM OPENLY SELLING
PIRATED OPTICAL DISCS. END COMMENT.
BALLARD

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