This morning the Interagency Special 301 Committee chaired by the US Trade Representative held a public hearing as part of its annual review of foreign countries that “deny adequate and effective protection of intellectual property rights” or that “deny fair and equitable market access” to American companies that rely on intellectual property protection. The Committee consists of officials from USTR, the Library of Congress, Immigration and Customs Enforcement, and the Departments of State, Commerce, DHHS, Treasury, labor and Agriculture.
The Committee will produce the 2013 Special 301 Report based on input from this hearing, written comments received earlier this month, and other less transparent consultations with governments and industry. At today’s hearing, the Committee heard testimony from five governments and eight civil society and industry representatives.
This blog summarizes the testimony and Q&A with government officials from the Czech Republic, Ukraine Paraguay, Mexico, and Italy. A subsequent blog has notes from the other testimony.
Jaroslav Zajicek, Deputy Chief of Mission for the Czech Republic noted that his country had not been included in the Special 301 Report for three years, but he wanted to highlight its work to strengthen IPRs.
The Czech government is increasing enforcement by cracking down on open markets in thorough, sometimes daily, raids. They also go after the offenders’ business licenses and accounts. There is a decline is sales of pirated goods in the open markets, and an increase in the number of people convicted. But open markets are no longer the primary venue for piracy and counterfeiting.
More infringement is taking place online – the trend is that piracy is moving from physical markets to the internet. The government is finalizing a review of these trends. It has created a committee on copyright that meets regularly with copyright owners.
The Czech Republic has invested in IPR education, with its main focus on training authorities and judges. The Department of Industrial Property has also organized events for entrepreneurs and students, and the Ministry of Culture is preparing a guide for teachers.
The government is preparing amendments to the copyright act which would extend the term of protection to 70 years and would raise fines.
The Czech Republic has formed an interagency committee with the Ministries of Trade, Culture, Health, and Customs working together with the office that licenses businesses. It has also worked extensively with the U.S. government, for example on the patent prosecution highway recently signed with the USPTO.
Serhii Nalyvaiko from State Intellectual Property Service of Ukraine testified next. He began on the topic of criminal enforcement, which is being expanded under a joint plan involving all relevant ministries (many of which are being reorganized and expanded to fight IP infringement). There has been an effort to crack down on camcording, and as a result, there have been fewer cases of camcording over the last two years. At the borders, smuggling through railways has been stopped.
Under Ukrainian law, the government needs a complaint from a rightholder in order to block websites and/or prosecute people for online piracy. However, the government receives hardly any rightholder complaints. When they do receive complaints, they get very few. Internet crimes usually have no organized character in the Ukraine – they are just spontaneous – which makes it more difficult to use criminal sanctions.
Regarding government software legalization, the Ukraine has committed ₴100 million to purchase new software in our budget. This should be approved in 2-3 weeks.
There is legislation pending that would help the Ukraine fight international piracy. Bill 6523 was approved at the first reading and registered as a Bill numbered 0902 on December 12, 2012. There is domestic opposition – some argue that the bill would limit freedom of speech and access to knowledge. Internet providers have a strong lobby and they are arguing against it. This is similar to other cases outside of the Ukraine.
Finally, the Ukraine is a member of WTO, and it complies with international treaties in the field of intellectual property.
AUSTR Stan McCoy asked Mr. Nalyvaiko to further discuss the government’s initiative to stop use of infringing software. He said there are comments in the record alleging that the ₴100 million Ukraine has budgeted for this comes to about USD 12 million, which is about 10 to 20% of what would be needed. He asked for a response to this and for information on the government’s timeframe for acting.
Nalyvaiko answered that the funds allocated were substantial for the Ukrainian government. Furthermore, the Ukrainian government will save money by moving to open source software where possible.
Victor Luis Benítez testified for the Embassy of Paraguay. He reported that the status of Paraguay’s national IP office has been upgraded. It now reports directly to the president. Similarly, within the attorney general’s office, a special unit for IPR was restructured and now reports directly to the AG.
More generally, attention to IP matters has grown. There have been more enforcement actions, as well mas more capacity building exercises for judges, clerks, etc. The trend will continue in 2013. There is an effort to coordinate actions by different parts of the government, so when infiringing goods are found, those involved are arrested and prosecuted. To this end police, customs officials and prosecutors are working tirelessly, and their efforts are done within the constraints of a limited budget and personnel shortages. They have seized millions of dollars of counterfeit goods.
There is also a new office in charge of implementing legal or free software for government.
McCoy asked Mr. Benítez to elaborate on software legalization. Benítez said that last March an agency was created goal to implement plans address the issue. There had previously been no institution in charge of this.
McCoy noted that Paraguay has an unusual ‘306’ status in the Special 301 Report, which reflects the fact that Paraguay and the U.S. have a bilateral Memorandum of Understanding which sets up government-to-government consultations on IPRs.
Kenneth Smith Ramos testified for the Government of Mexico. He noted that IPR protection is important for Mexico, and the country is working to advance their IPR framework. Last year Mexico joined the TPP negotiations. Mexico has shown it is committed to establishing high levels of IPR protection, and is committed to fighting counterfeiting and piracy. Mr. Smith gave statistics on their fight against counterfeiting.
Mexico is dedicated to education on IPRs. It participated in 116 international IP forums last year, including seminars to train officials in how to increase protection of IPRs. To educate students, there is now a chapter about intellectual property rights in all elementary school civics text books.
Mexico has many programs where it collaborates with the United States to strengthen IPR. One positive example of this is that the examination process for patents has shortened thanks to the highway thing.
McCoy asked Smith to elaborate on two points made in last year’s Special 301 Report – the need for more greater enforcement resources and tougher penalties, and various legislation that the U.S. would like to see enacted (regarding ex officio powers, bringing the copyright regime into compliance with the WIPO internet treaties, and anti-camcording). Smith said that Mexico is implementing the WIPO treaties. They are currently working with the United States to finazlize the legislation and intend to present it to Parliament. They also have pending legislation on patent linkage, but judicial review has been requested for this legislation.
Smith ended by noting that in 2012 Mexico signed ACTA and joined the Madrid Protocol – further signs that the administration is committed to IP.
Lorenzo Galanti testified for Italy. He began by noting that Italy and the U.S. have had fruitful dialogues on IPRs. Italy works with the U.S. government and Chamber of Commerce regularly. There was a recent Parliamentary commission to DC, and the U.S. government and Chamber of Commerce are cohosting a workshop in Italy on IPRs in the spring.
There is draft anti-piracy legislation being drafted, and new regulations on copyright on the internet are expected in mid-2013. ‘AmCham’ is monitoring the progress
A detailed description of Italian efforts to fight piracy is including in the written submission. Highlights include judgments with civil and criminal penalties ensuring timely protection against illegal uploads. Italy had a record €6.4 billion judgment a few days ago against the so-called “Italian share” network.
Under Italian laws, commercial use is not a requirement for a criminal charge. For instance, self-employed professionals that use illegal software have committed a crime.
