VZCZCXYZ0000
RR RUEHWEB
DE RUEHBU #0336/01 0771824
ZNR UUUUU ZZH
R 171824Z MAR 08
FM AMEMBASSY BUENOS AIRES
TO RUEHC/SECSTATE WASHDC 0480
RUCNMER/MERCOSUR COLLECTIVE
RUCPDOC/USDOC WASHINGTON DC
RUEHRC/DEPT OF AGRICULTURE USD FAS WASHINGTON DC
RHMFIUU/HQ USSOUTHCOM MIAMI FL
UNCLAS BUENOS AIRES 000336
SIPDIS
EB/TPP/IPE FOR RWATTS, RWALLACE AND CLACROSSE
DEPT PLS PASS TO USTR JCGROVES, KDUCKWORTH
DOC/ITA/MAC/OIPR FOR CATHERINE PETERS AND JENNIFER BOGER
PLEASE PASS TO USPTO JURBAN AND LOC STEPP
SAO PAULO FOR USPTO DMAZURKEVICH
SIPDIS
SENSITIVE
E.O. 12958: N/A
TAGS: KIPR ETRD ECON AR
SUBJECT: Embassy Buenos Aires' IPR Strategic Plan: 2007 Report Card
and 2008 Goals
REF: A. BUENOS AIRES 231
B. 07 BUENOS AIRES 1720
C. 07 BUENOS AIRES 927
This cable contains sensitive information - not for internet
distribution.
------------------------
Summary and Introduction
------------------------
1. (SBU) Post recently submitted our 2008 Special 301 recommendation
that Argentina remain, for the 13th consecutive year, on USTR's
Priority Watch List (Ref A). Given the myriad challenges and
deficiencies of the Argentine IPR regime, Post in 2007 developed a
strategic plan (Ref C) to integrate efforts of all Mission elements
to address specific deficiencies in IPR legislation, regulation and
enforcement and to mobilize and coordinate Mission IP education,
training and public outreach efforts. This cable reviews our IP
strategic plan performance in 2007, and outlines Post's goals for
2008. Our 2007 plan was ambitious and the results mixed: on
legislation, though there was little progress in improving either
patent or copyright protection laws, an AmCham IP Committee-drafted
trademark bill was introduced into parliament, and it appears the
GoA will draft and pass in 2008 an embassy-supported seed law which
we hope will help ensure royalty payments for GMO products. Post
efforts to have the GoA publish regulations implementing a law
authorizing Customs interdiction of any IPR violation failed, with
the GoA instead submitting to parliament a proposal to narrow the
law's scope. Enforcement and education efforts were our most
successful: with DoJ support, we brought together representatives of
nine different GoA law enforcement entities plus key members of the
private sector to draft a "best practices" manual for IPR case
investigation and prosecution (Refs A & B), and notable numbers of
pirated IPR goods were detained and destroyed. Public outreach was
also positive, with Post leveraging broad media coverage of a number
of Ambassador's IP presentations and op-eds to broadly disseminate
our message to the Argentine public.
2. (SBU) In 2008, Post will continue actively engaging GoA
executive, parliament, and enforcement officials as well as private
sector and NGO players on IP issues. An overarching priority for
the coming year will be to further leverage Mission IP efforts by
expnding contacts and ties to new individuals and organizations
with IP interests and responsibilities, seeking allies to move
forward on specific initiatives. Our primary 2008 target areas are:
working with the newly seated parliament to advance legislation and
regulation of existing laws to win better trademark and
pharmaceutical patent protection; working with federal, provincial,
and the city of Buenos Aires governments to improve enforcement of
copyright and trademark violations; producing and distributing the
above noted "best practices" manual for IPR case investigation and
prosecution; leveraging INL funds dedicated to IPR granted in FY 08
to expand training for judges and prosecutors; and working with new
and old contacts to get across the message that IP protection is
very much in Argentina's own interest. Finally, we have established
an inter-agency Mission working group, chaired by IPR Officer, to
enhance in-house coordination. While we do not anticipate
significant movement in any one of our target areas in 2008, we hope
that small advances in several will add up to significant progress.
END SUMMARY AND INRODUCTION.
3. (SBU) Review of Strategic IPR Plan:
I. New Legislation:
2007 Goals: We sought to (1) support a trademark law modification
drafted by members of AmCham's IP Committee to increase deterrent
penalties for violations and otherwise modernize a dated law; (2)
sound out USG and GoA support for Argentine accession to the WIPO
Patent Cooperation Treaty, which requires legislative action; and
(3) explore implementation of data exclusivity. Given a request by
AmCham members that our Mission refrain from direct advocacy with
parliament, we assumed this would be a difficult issue area to move
forward.
2007 Performance: Limited success.
-- We hoped to leverage a visit by Congressional Research Service
Specialist Jeff Hornbeck in April to make key contacts, but the
Argentine congress was on recess and he was only able to meet with
staffers. The trademark law modification by AmCham was presented
formally by a Senator, but has made no further progress.
-- USG working-level contacts in EEB and USTR supported our goal to
have Argentina accede to the multilateral WIPO Patent Cooperation
Treaty, which is also an EU IPR priority. In Argentina, INPI
resists accession both on grounds of reduced sovereignty in patent
decisions and over concern about the increased number of
applications they would receive.
-- Econ contacts in the GoA and the local international
pharmaceutical industry advise us that the thorny issue of data
exclusivity will only be addressed via a legislative fix, and that
the GoA will only undertake such a fix if forced to by a WTO
decision. Our pharmaceutical company and international chamber
contacts tell us their headquarters are hesitant to push for a WTO
case to be filed based on the possible worldwide consequences of an
unfavorable decision.
-- FAS ensured that a proposed new seed law (which would ensure
technology owners, including the U.S.'s Monsanto, receive payment
for their products) was discussed in a September meeting between
U.S. Acting Agriculture Secretary Conner and GoA Agriculture
Secretary de Urquiza, and a November meeting between de Urquiza and
SIPDIS
now-House Agriculture Committee Chairman Peterson. The law was also
discussed in November by Peterson and Argentine Congresswoman Ana
Maria Berraute, then head of the Agriculture Committee in the
Argentine House of Diputados, who made it clear that her committee
will approve whatever is presented by the GoA. (The 2008 Committee
Chair has not yet been named.) Congressional passage of such a law
would encourage development of new technology and investment in
Argentina, and would end Monsanto's longstanding dispute over
Roundup Ready soy. The law has not yet been fully drafted, but our
GoA Secretary of Agriculture contacts expect it to be presented in
Congress early in 2008 and easily passed by the current
administration's majority in both houses.
2008 Recommendations: Local research-based pharmaceutical chamber
CAEMe's IP committee plans to approach newly appointed parliamentary
upper and lower house chairs of Economy, Industry, Penal Code, and
Health committees, all of which have broad influence on IP issues.
At a December 2007 CAEMe Board meeting, the Econ section agreed to
work with CAEMe, the EU, PhRMA and other interested parties to
develop a coordinated legislative approach and parliamentary
education strategy. (07 BA 2267 suggested that President Cristina
Fernandez de Kirchner's (CFK's) service in the Senate may make her
amenable to pursue the legislative route more often than her husband
did.) Some pharmaceutical firms are considering linking improvement
in GoA IP protection to future investment in clinical research in
Argentina, and have even raised the possibility of not introducing
new medications in Argentina unless IP disciplines are strengthened.
To highlight these concerns and possible consequences of continuing
poor IP enforcement, we will explore having Ambassador host a
round-table discussion with appropriate GoA officials, company reps,
and perhaps Ambassador's EU and Swiss counterparts. AmCham has not
requested any specific support for their trademark proposal, but
will do so if they identify a way they believe we can be helpful.
The Motion Picture Association (MPA) has also requested embassy
support for their proposed law on protecting digital video content,
and will coordinate with Mission IP team.
II. Regulation/Implementation of Existing Legislation:
2007 Goals: We sought to encourage issuance of regulations of Law
25.986 (passed in 2004) that would give the GoA Customs agency the
authority to detain incoming shipments on the presumption of an IP
violation, and hold shipments long enough to obtain an official
determination. (Just as the U.S. Code of Federal Regulations
interprets and guides application of the United States Code, Customs
needs regulations in order to apply the law.) The GoA Customs'
trademark fraud alert program already in effect implements a portion
of this law. (NOTE: Law 11.723, Argentina's primary copyright law,
criminalizes the importation and sale of pirated products. Law
22.362, the main law regarding trademarks and patents, does not
address imports of violating products but only the sale of same.
Therefore, implementation of the law would, in practice, increase
import/export protection only for patented products.)
2007 Performance: Unsuccessful. Far from expanding GoA Customs'
authority to detain shipments on the presumption of IP violations,
the GoA is attempting to limit Customs' interdiction authority to
only copyright and trademark violations, whereas the passed version
of the bill includes all intellectual property rights. The GoA
proposal was sent to Congress on March 23 (but unbeknownst to us
until May), shortly before we finalized the plan on March 27.
Then-Secretary of Industry Peirano was especially unhelpful in this
area: on March 26, we asked him about the regulation of this law and
he feigned ignorance, though the proposal submitted the week before
(signed by then-Minister Miceli, as well as then-Health Minister
Gonzalez and Chief of Cabinet Alberto Fernandez) would likely not
have moved forward without his blessing.
2008 Recommendations: The GoA proposal to limit the GoA Customs
agency's authority advanced in Congress and has been passed by the
Diputados full chamber as well as by relevant Senate committees. As
we understand the legislative process, the Diputados' vote remains
in effect for the entire 2008 session, but is void if the full
Senate doesn't vote on the matter by the end of 2008. Mission will
encourage Customs to aggressively push its case within the CFK
administration. The Econ and Immigration and Customs Enforcement
(ICE) sections will consult with GoA Customs Director Echegaray to
affirm Customs' strong support for broader Customs IP authority and
to ask for his guidance on how we can best support.
III. Enforcement:
2007 Goals: We sought to organize (with Department of Justice
support) a conference to develop a "best practices" manual for
Argentine law enforcement and prosecutors to use in investigating IP
crimes. We also sought to support Customs in its efforts to
establish a new trademark fraud interdiction program, and to support
MPA's local enforcement activities.
2007 Performance: Successful. Our single most significant IPR plan
success this year was the DOJ-sponsored conference. Not only is the
draft manual nearly finished, but it resulted in public/private and
inter-agency cooperation on IP which did not exist previously. With
ICE cooperation, the Econ section encouraged DHS/Washington to offer
informal assistance to Customs on trademark fraud procedures.
Argentine Customs has not followed up on DHS' offer. Likewise,
local MPA counsel has yet to take us up on our offer for greater
Embassy engagement on MPA enforcement efforts. ICE has cooperated
with Customs on a significant seizure of contraband goods (many of
them trademark violations) which entered Mendoza from Chile. Per
Ref A, total seizures of counterfeit and pirated goods by GoA police
forces in 2007 were substantially higher than in 2006. According to
data provided by Argentine Customs, the total retail value of
trademark violations that agency seized was US$ 32.9 million - an
over 800% increase over the value of such seizures in 2006.
2008 Recommendations:
-- Next step on the GoA inter-agency best practices manual project
is for the original conference participants to meet again
(tentatively set for March 26) to finalize the manual, publish, and
distribute it. DOJ has committed $2,000 for printing, and Econ will
ask for LegAtt's assistance to obtain formal Public Ministry support
for the publication. We will also encourage the manual drafting
working group to seek permission to continue to meet and address
other issues.
-- We will work with Argentine Customs to follow up on DHS' offer
of informal assistance to Customs on trademark fraud procedures and
work with local MPA counsel to pursue our offer for greater Embassy
engagement on MPA enforcement efforts.
-- EEB's IPE office is considering initiating a tri-country (Arg,
Brazil, Paraguay) tri-border multi-year enforcement initiative; we
could offer to host the launch. Embassy BsAs ICE has also expressed
interest in coordinating an IP-based training conference designed to
inform Argentine and other Southern Cone customs, Treasury agencies
on international best practices.
-- In general, seek closer cooperation with new provincial and city
governments. For example, LegAtt will consult with new BA Province
Minister of Security Carlos Stornelli to encourage him to address
the La Salada market.
-- Letters from Ambassador to Ministers/appropriate authorities on
occasions of large IP-related seizures/enforcement actions.
-- Recommend, with authorities at all levels, organizing
"demonstration" raids/seizures which attract attention, and
therefore send deterrent message.
-- Seek ways to better support internet enforcement issues. CAPIF
is a leading actor in Argentina in this area.
IV. Education/Training:
2007 Goals: We sought to take advantage of existing resources -
particularly within the USG - to offer IP training opportunities to
GoA law enforcement, INPI and Customs officials and to encourage
better integration of GoA inter-agency IP law enforcement efforts.
2007 Performance: Mostly successful.
-- In response to our request for financial support from INL to
further our training of judges and prosecutors, INL approved $15,000
for FY 08. Funding remains pending INL confirmation, but can be
spent through FY 10.
-- Post nominated two officials who received USPTO training: one
from Customs for a border enforcement course, and one from INPI for
advanced patents.
-- The Econ section also obtained approval for 10 GoA officials
from five agencies to attend (9 did so) an INL Intl Law Enforcement
Academy (ILEA) IPR course in Lima in July.
-- Extensive efforts by the Econ section and ICE to secure
participation by Customs in a USPTO-sponsored tri-border conference
in Paraguay in May went for naught, as AFIP never gave formal
approval. (Contacts attribute this to tiff between the head of AFIP
and the head of Customs.)
-- On a trip for nine Argentine journalists funded by Monsanto in
August, FAS arranged meetings with USDA, USPTO, FDA and EPA
officials to discuss biotechnology and regulatory issues, including
intellectual property protection. FAS also funded one LES to
accompany group.
2008 Recommendations:
-- Key question is how best to use/leverage $15,000 in expected INL
monies. Sending GoA officials to the U.S. for training is
relatively expensive. INL funding could probably be best leveraged
by bringing U.S. experts to Argentina. One thought is to arrange
travel for U.S. IPR judges to provide multiple training
opportunities for local judges and prosecutors. IPR Officer will
consult with EEB/IPE to help identify appropriate trainers. INL
funds could also support a series of videoconferences to be held in
the PAS conference room or AmCham offices. USPTO's regional IP
officer posted in Sao Paulo, Dorian Mazurkevich, is willing to
conduct training/outreach here, or could do so via videoconference.
Dorian was a featured speaker at this year's annual AmCham IPR
Conference and after being posted in Brazil for the past year, and
plans to travel to Argentina more extensively in 2008. We will
propose to the GoA Supreme Court that the upcoming international
Supreme Court justices conference they are sponsoring include an IP
aspect. We have a strong indication of interest in supporting IPR
training efforts from the World Justice Project and Proyecto Acceso
- an NGO which promotes rule of law in Latin America.
-- INL monies could also be used to fund to deployment of CBP
advisory personnel to Argentina to train Customs personnel with the
identification and interdiction of potential IPR violations. Though
specific to Argentine Customs, this would have regional implications
as Argentine serves as a major consolidation point for IPR-suspect
cargo being shipped into the TBA. CBP, through the coordination of
DHS/ICE, has already undertaken "capacity building" country survey
visits to Uruguay and Paraguay at the conclusion of FY 2007. The
goal of these visits was to identify potential customs and
immigration border enforcement training opportunities in both
countries.
-- Work with new Minister of Health (Graciela Ocana) and her staff
(including continuing head of GoA FDA equivalent ANMAT, Manuel
Limeres) to arrange training and/or seminars on safety and
therapeutic equivalence evaluations of generic medications.
-- FAS has proposed a Cochran Fellowship program on IPR and seeds
for 2008, via a course offered by Michigan State University. FAS
and Econ will collaborate to identify a candidate.
V. Public Outreach:
2007 Goals: We sought to use appropriate outreach events as
opportunities to emphasize the value for Argentina, a nation with
notable human capital resources, to better protect the rights of
innovators. We explored the possibilities of having Argentines in
the creative industries collaborate with us to draw attention to the
anti-piracy/falsification theme.
2007 Performance: Successful. The Public Affairs section
highlighted Ambassador's addresses to four IPR conferences in 2007
and coordinated the timing and placement of linked op-eds under the
Ambassador's name to good effect. Combined efforts with AmCham -
World IP Day, the annual AmCham IPR conference, IP contest award -
proved especially positive. Argentina's two leading print dailies,
La Nacion and Clarin, proved willing allies in this effort, giving
prominent space to Ambassadorial editorials, Mission-supported IPR
events, and other IP issues.
2008 Recommendations:
-- Continue Working with AmCham: The Econ section and Foreign
Commercial Service (FCS) will continue to work closely with AmCham
and make IP Day and their annual IP conference permanent areas of
cooperation.
-- Joining Forces with Other Chambers: We will also look beyond
AmCham for allies. Other professional chambers - including the CAC
(Argentine Chamber of Commerce), which has an anti-piracy program,
and other bilateral business chambers with strong IP interests - are
good candidates and their assistance could also prove very useful in
areas such as support for new legislation and appropriate regulation
of existing IP legislation.
-- Working with Argentine Public Figures: Charly Alberti of local
rock mega-group Soda Stereo, who spoke at the DoJ seminar in favor
of music copyright protection, has expressed interest in further
joint IP efforts. Pablo Sonne, CEO of Argentine clothing firm Rever
Pass (and panelist at AmCham's conference) has also expressed
interest. One possible way to cooperate would be for these and/or
others to publish editorials promoting the value for Argentina of
protecting IP.
-- Find Outside Editorial Material: The Econ section will ask
EEB/IPE to identify good English editorials (preferably by non-USG
individuals) on the subject, and work with them to obtain permission
to translate the works and publish them in select other countries.
-- Counterfeit Auto Parts Publicity: With assistance from PAS,
encourage at least one car manufacturer (local GM rep has
substantial information) and/or ADEFA to publish editorial about the
dangers and other problems of counterfeit auto parts.
-- Book Fair: U.S. author Tom Wolfe has agreed to participate in
the annual May Argentine Book Fair. The Public Affairs section will
sound him out about addressing IP themes in his presentation.
-- Visits of senior USG IPR Officials: We will request a visit of
IPR AUSTR Chris Wilson, which would include appropriate outreach and
media coverage. Chris Israel, the Department of Commerce's
International IPR Enforcement Coordinator, has also expressed
interest in a visit.
-- PAS Programming: Regional or single country International
Visitor programs on specific IPR themes and/or host periodic DVCs on
IPR themes.
-- Film Showings with MPA: Expand on 2007 MPA coordination efforts
with targeted pre-screening or post-screening IPR messages.
-- Regional Efforts: Through the intra-region USG IP mailing list
the Econ section created this year, we can share editorials we have
used and solicit input from other Southern Cone posts. The AmCham
contest is also an idea which could be shared regionally, as a
suggestion in places where nothing similar has been done, and to
solicit different contest ideas where it has.
-- Publicity for Raids: Work with press to ensure broad coverage
of "demonstration" raids (see "III. Enforcement," final "2008
Recommendation.")
NEW AREA for 2008: Seek Increased Cooperation with Other Entities
This will be a primary, overarching focus of our 2008 efforts.
Greater links will be sought with various diplomatic missions in
Argentina (including the EU and Swiss missions), bilateral business
chambers other than the AmCham, other private business chambers in
Argentina such as the CAC and CIRA (Importers' Chamber), and new
administrations of the city and province of Buenos Aires. The
purpose will be to establish common ground on IP issues, identify
areas of potential cooperation and put that cooperation into
practice.
NEW AREA for 2008: Create Inter-Agency IP Working Group at Embassy
Create a group which will meet quarterly (and at specific other
times, if appropriate) to discuss progress of this plan and other IP
activities. The group will be chaired by IPR Officer and should
have representation from ICE, FCS, LegAtt, FAS, PAS and POL. Group
will seek to expand focus beyond domestic and TBA IP issues to
ensure that problems at borders with Bolivia and Chile are
addressed.
WAYNE