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Viewing cable 09ANKARA326, TURKEY 2009 SPECIAL 301 REVIEW
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Reference ID | Created | Released | Classification | Origin |
---|---|---|---|---|
09ANKARA326 | 2009-03-02 13:59 | 2011-08-24 01:00 | UNCLASSIFIED//FOR OFFICIAL USE ONLY | Embassy Ankara |
VZCZCXRO6791
PP RUEHAG RUEHAST RUEHDA RUEHDBU RUEHDF RUEHFL RUEHIK RUEHKW RUEHLA
RUEHLN RUEHLZ RUEHNP RUEHPOD RUEHROV RUEHSK RUEHSR RUEHVK RUEHYG
DE RUEHAK #0326/01 0611359
ZNR UUUUU ZZH
P 021359Z MAR 09
FM AMEMBASSY ANKARA
TO RUEHC/SECSTATE WASHDC PRIORITY 8946
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE PRIORITY
RUEHDA/AMCONSUL ADANA PRIORITY 3646
RUEHIT/AMCONSUL ISTANBUL PRIORITY 5457
RUCPDOC/DEPT OF COMMERCE WASHDC PRIORITY
UNCLAS SECTION 01 OF 06 ANKARA 000326
SENSITIVE
SIPDIS
DEPT FOR EUR/SE DMARSH AND EEB/TPP/IPE FOR TMCGOWAN AND
JURBAN
DEPT PLEASE PASS USTR FOR JCHOE-GROVES AND MMOWREY
E.O. 12958: N/A
TAGS: ETRD KIPR USTR ECON TU
SUBJECT: TURKEY 2009 SPECIAL 301 REVIEW
REF: A. STATE 8410
¶B. 08 ANKARA 1471
¶C. 08 ANKARA 1605
¶D. 08 ANKARA 2175
¶E. 08 ANKARA 2128
¶F. 08 ANKARA 2191
¶G. ANKARA 48
¶H. ANKARA 117
ANKARA 00000326 001.2 OF 006
¶1. (SBU) This report is sensitive but unclassified. Please
protect accordingly.
¶2. (SBU) Summary. The last year has been a mixed story for
IPR protection in Turkey, with several positive developments
but two high-profile setbacks - a regression in the
protection of confidential pharmaceutical test data and a
legislative fiasco involving the criminal provisions of the
trademark law that ended in the downgrading of 9000 trademark
violation cases due to GOT inaction. Following Turkey's
move in 2008 from the Priority Watch List to the Watch List,
these developments are especially disappointing. Despite
these setbacks, however, Turkey has made progress on many
fronts, including three of the six action items agreed to in
the 2007-2008 IPR Action Plan. The Ministries of Culture and
Justice, as well as the Customs Undersecretariat and Turkish
National Police, have recognized the seriousness of Turkey's
IPR problems and are taking some steps to address the lack of
public awareness and the lack of training in both law
enforcement and the judiciary. The Ministry of Health,
however, remains a serious obstacle to progress on IPR
issues. MOH violated outright the protection of confidential
pharmaceutical test data for a U.S. company's product and
circulated a draft regulation that would further reduce data
protections for fixed combination products. We recommend
that Turkey remain on the Special 301 Watch List this year,
and that the report focus attention on the need to address
pharmaceutical sector concerns and to continue harmonizing
Turkey's regulations and practices with its EU and
international commitments. End Summary.
---------------------------------------------
The Good: Incremental Progress on Many Fronts
---------------------------------------------
¶3. (SBU) The consensus in recent years has been that Turkey's
IPR legislation, while flawed in some ways, is generally
sound and that the real problems are in public awareness,
enforcement, and judicial action. We hoped that the GOT
would seriously tackle all these fronts in 2008, but instead
much of its attention was absorbed by the filing of a closure
case against the ruling party in March and the onset of the
global economic crisis in the third quarter. This led to
lack of policy coordination on many fronts. Nonetheless,
there were several noteworthy positive developments in IPR
over the last year, including:
(* indicates an item from the 2007-2008 IPR Action Plan)
-- In February 2008, the GOT passed a new Copyright Law,
harmonizing copyright law with the new Turkish Criminal Code.
There are some problems with the law (see para 10) but it
ensured that copyright violations would continue to be
treated as criminal offenses. (*)
-- On April 24 (World IPR Day), in conjunction with the
Business Software Alliance (BSA), the Ministry of Culture
(MOC) launched an IPR public awareness campaign known as the
"3 Monkeys." This included a large billboard provided by the
MOC in Istanbul's Taksim Square - the campaign is estimated
to have reached 7.5 million people. (*)
-- In May, the Ministry of Justice (MOJ) increased the number
of specialized IPR courts by two, bringing the total to 23.
-- On May 12-13, the MOC and MOJ held a conference in Izmir
on the criminal provisions of the Copyright Law.
Approximately 100 officials attended, including law
enforcement as well as 60 prosecutors and judges dealing with
IPR issues. (*)
-- On May 29-30, forty Turkish Customs officials participated
in a two-day Embassy-sponsored, INL-funded, USPTO training in
Istanbul focused on detecting trademark and copyright
infringement, with participation from the private sector.
ANKARA 00000326 002.2 OF 006
Further follow-up trainings in other cities are planned for
March 2009. (*)
-- On May 30, the Turkish Patent Institute (TPI), MOJ, and
European Patent Institute held a seminar on patent litigation
for 30 judges and prosecutors.
-- On June 1, the MOC implemented a certificate system for
all participants in the copyright production chain, including
an electronic track-and-trace component and an automatic
auditing mechanism that should ease the process of
investigating suspect sellers. (Ref B)
-- In June, Turkey formally opened the IPR accession chapter
with the European Union. This in and of itself indicates
that Turkey had sufficiently improved its IPR environment to
meet the chapter-opening benchmarks, but it also opens the
door for further harmonization with the EU as Turkey
negotiates to close the chapter.
-- On July 15, the Prime Ministry issued a circular to all
government agencies reminding them that public agencies must
use only licensed software and requiring that they establish
a mechanism to track and audit software licenses. (Ref B)(*)
-- On August 28, Turkey formally acceded to the WIPO
Copyright Treaty and the WIPO Performances and Phonograms
Treaty, with no reservations. The treaties entered into
force on November 28, 2008. (Ref C)(*)
-- In October, the GOT held the first meeting of the
Undersecretary-level IPR Coordination Council to ensure that
GOT policies across ministries are not working at
cross-purposes. This idea was pushed by the EU as part of
the opening of the accession chapter.
-- In November, MOC, MOJ, and Istanbul Bilgi University held
a two-week training session in Antalya on all aspects of IPR,
focusing especially on judges and prosecutors who had not yet
participated in long-term or specialized IPR training. 40
officials participated. (Ref D)
-- In November, MOJ also issued a regulation requiring all
prosecutor's offices to designate a specialized IPR
prosecutor, and for offices with more than 500 cases per
annum to establish a special IPR bureau. (Ref D)
-- On November 22, the GOT held the first meeting of a
"Juridical Consultation Group for IPR" to issue
recommendations on improving the coordination of judicial
decisions on IPR, including involvement by judges and
prosecutors of the Supreme Court. (Ref D)
-- In January and February 2009, the Turkish National Police
held two three-day training sessions on all aspects of IPR
for police and prosecutors charged with IPR enforcement.
These were the fifth and sixth meetings in a longer-term
training program. (*)
-- Throughout the year, the MOJ worked on establishing the
National Judiciary Network Project (UYAP), which aims to link
various agencies and electronify records to speed the access
of judges and prosecutors to case-relevant information. The
technical infrastructure is now in place, although several
IPR-related agencies are still awaiting legislative action to
permit their connection to the network.(Refs B and D)
-- The MOC sponsored a short-film contest on IPR among
graduate-level film students in which 170 students
participated. Television stations will be required to show
the winning film, "Don't Kill the Original," as part of a
public awareness effort. The Ministry plans to make this
into an annual program. The MOC has also reached out to
prominent television studios to ask them to include IPR
themes in their programs. (*)
¶4. (SBU) The above list is by no means exhaustive, but does
indicate that the Ministries of Culture and Justice, as well
as the Customs Undersecretariat and Turkish National Police,
have recognized the seriousness of Turkey's IPR problems and
are taking some steps to address the lack of public awareness
and the lack of training in both law enforcement and the
judiciary. Much work remains to be done, but Turkey's
incremental progress in a number of areas should be
recognized.
ANKARA 00000326 003.2 OF 006
--------------------------------------------- ---------------
The Bad: Legislative Incompetence/Inaction, and Enforcement
Problems Continue
--------------------------------------------- ---------------
¶5. (SBU) The low point of the past year was the GOT's lack of
timely response to a Constitutional Court decision annulling
the criminal provisions of the Trademark Law. (Refs D, E, F,
G and H) On July 6, the Court ruled that the criminal
penalties in the Trademark law were unconstitutional because
the law was issued by decree rather than passed by
Parliament. The Court gave the GOT six months, until January
5, 2009 to pass a new law through Parliament to maintain
these criminal penalties in force, and the government was
well aware of the deadline (Refs D and E). Due to what can
at best be described as GOT incompetence, the deadline passed
with no new law, resulting in the invalidation of
approximately 9000 pending criminal trademark cases.
Following this debacle, the GOT sped a new law through
Parliament in near-record time, drafting it on the January 6
and promulgating it on January 29, but the damage had already
been done. In an effort to prevent IPR criminals from
getting away completely, the MOJ has decided to prosecute the
same 9000 cases under unfair competition provisions of the
commercial code, but this reduces the maximum penalty, and it
is unclear if convictions under this provision will be upheld
on appeal. Many attorneys representing rights holders also
are concerned that the fake goods confiscated in these 9000
cases will be returned to the counterfeiters, which would
flood literally millions of fake products into the
marketplace. The only encouraging part of the whole episode
is that the Constitutional Court's decision was not based on
any objection to IPR. Had the GOT acted in time, it would
have been a side note to the year.
¶6. (SBU) At the same time that Parliament was busy not
dealing with this specific trademark issue, it was also
unable to make much progress on the new patent law or the
full trademarks law, both of which have been languishing for
several years now (Ref E). Indeed, until the new patent law
passes there is some confusion as to whether criminal
penalties still apply to patent violations - the new Turkish
Criminal Code made all criminal penalties in other laws null
and void as of January 1, 2009, unless they had been
harmonized with the Code. Copyright and trademark penalties
have now been harmonized (the latter by accident), but until
the patent law passes there are theoretically no criminal
protections (civil penalties still apply).
¶7. (SBU) Both the patent and trademark laws also contain some
troubling language, which the private sector and post are
working to fix. For example, a requirement in the trademark
law that a copy of the original product must be submitted in
every trademark case could cause substantial costs to the
victimized rights holder when dealing with items worth
thousands of dollars. The Turkish Patent Institute has taken
private sector concerns seriously, however, and in late
February 2009 even allowed for private sector interests to
see the draft law and provide comment, which is almost
unheard of within the Turkish legislative system and an
encouraging sign. There are frequent rumors regarding
several amendments to both the patent law and trademark law
that would make them applicable only to goods produced in
Turkey, but the technical agencies involved (TPI, Foreign
Trade, etc.) have so far been diligent in ensuring that these
amendments are not included in the legislation.
¶8. (SBU) There was some marginal improvement in the
enforcement environment in 2008, but serious problems remain.
Anecdotally, rights holders have told us they are pleased
with the enforcement activities of the specialized IPR units
within the Turkish National Police and with the
responsiveness of MOC, MOJ and the Customs Undersecretariat.
One software representative noted that 90% of their requests
for warrants are granted by the specialized IPR courts as
long as there is sufficient evidence of infringement,
representing a huge shift in judicial attitudes. However,
outside of these specialized units (i.e. outside of the large
cities), rights holders find themselves in a constant battle
to convince police to take action and to persuade judicial
authorities to take the crimes seriously. This is compounded
by the fact that such authorities are often themselves
involved in IPR-infringing activities. Rights holders (and
the police themselves) also note that even the specialized
ANKARA 00000326 004.2 OF 006
units are underfunded and lack
appropriate equipment.
¶9. (SBU) Enforcement statistics show an overall increase in
seizures of counterfeit products, although they have fallen
in some categories where the products are either becoming
outdated (music and video cassettes) or moving online (music
CDs). The following chart highlights statistics from the
Security General Directorate - also reflected in the
submission of the International Intellectual Property
Alliance (IIPA).
------------------
Seizure Statistics 2007 2008
------------------ ---- ----
Operations 3741 2847
Persons Arrested 4132 3226
Non-Banderoled Products
-----------------------
CD/VCD 2.1 million 1.4 million
DVD 490,000 1.3 million
Books 235,000 575,000
Video Cassettes 400 250
Music Cassettes 28,000 8,100
Banderoled Products
-------------------
CD/VCD 12,000 6,000
DVD 1 700
Books 10,000 22,000
Music Cassettes 55,000 15,000
CD/VCD/DVD Inlays 8.2 million 24.2 million
¶10. (SBU) As noted in the IIPA submission, there has been
considerable confusion over whether or not Police and
Inspection Committee officials possess ex officio power to
conduct raids. The language in the previous Copyright Law
was deleted from the February 2008 version, not because the
power was removed but because it is enshrined elsewhere in
law and the amendment drafters felt it was redundant. Post
agrees with IIPA that a formal circular confirming ex officio
power could help to reduce this confusion and encourage
police to initiate raids without a complaint from a victim.
¶11. (SBU) Internet piracy is a growing problem in Turkey,
especially as more Turks gain broadband access to the
Internet. The GOT has been active in providing support to
fight Internet piracy, and both the copyright law and the
recent trademark amendment contain specific, strong language
to fight abuse of IPR on the Internet. Rights holders report
that GOT authorities also respond quickly to requests to
block access to various piracy sites. As broadband access is
expanding rapidly, the GOT is in a constant race to keep up
with the widening scope of the problem, but has shown a good
effort to date.
¶12. (SBU) Certain Customs regulations continue to pose
problems for rights holders. Trademark owners are still
required to file in paper to every Customs site on a monthly
basis in order to receive protection for their goods, an
exhausting and expensive process. A new Customs law is under
consideration that would replace this system with a
centralized electronic, yearly filing requirement (Refs B and
H) and passage is expected this year. Customs is also only
allowed to hold suspected counterfeit goods for 10 calendar
days absent a formal complaint from the rights owner.
Because of time differences, these days are rapidly used up
when trying to coordinate with a rights holder in the U.S.,
especially if the victim must travel to a remote portion of
Turkey to identify the goods.
¶13. (SBU) There has been little to no improvement on speeding
up judicial cases, although this may change once the UYAP
system is fully implemented and judges and prosecutors have
direct access to copyright, trademark, and patent files.
Almost all IPR cases are appealed and the average time to
process an appeal is still well over two years. Even when
convictions are achieved and upheld, sentences also lack
deterrent effect and frequently end in suspended sentences or
nominal fines.
--------------------------------------------- -------
ANKARA 00000326 005.2 OF 006
The Ugly: Pharmaceutical Protections Moving Backward
--------------------------------------------- -------
¶14. (SBU) The most troubling developments in the last year
occurred at the Ministry of Health (MOH), which violated
outright the protection of confidential pharmaceutical test
data for a U.S. company's product and which circulated a
draft regulation that would further reduce data protections
for fixed combination products.
¶15. (SBU) In January 2009, in violation of the data
exclusivity rights of a U.S. pharmaceutical company, the MOH
issued marketing approval for a copycat generic product.
This action occurred just days after the approving official,
Dr. Mahmut Tokac, told Assistant USTR Christopher Wilson in a
formal U.S.-Turkey bilateral trade meeting that Turkey's
obligations on data protection for fixed combination products
were "unclear" and that the EU had not yet provided
instruction on the matter (Ref H). Rather than place the
approval application on hold pending that clarification
(which had in any event already been provided by the EU in a
series of letters dating back four years), MOH went ahead and
approved the product. Despite the intervention of the U.S.
company, the U.S. Embassy, and the European Commission
Delegation to Turkey, the MOH has refused to withdraw its
approval and the product was approved for pharmaceutical
reimbursement by the Social Security Administration just a
few weeks later and is now on the market (and is being
marketed for just 30 kurus less than the US company's product
- the equivalent of about 18 U.S. cents). A second U.S.
product from a different company now faces the same problem.
This constitutes a serious violation not only of Turkey's WTO
TRIPS and its European Customs Union obligations, but also of
internal Turkish law and of the national treatment principle
(foreign companies' approval and reimbursement applications
routinely take years). Post continues to work with relevant
Turkish agencies to rectify this situation, but for the time
being, the attitude of MOH remains a significant black mark
against Turkey.
¶16. (SBU) At the same meeting with AUSTR Wilson, MOH
officials denied that they had proposed amending the
regulations on pharmaceutical data protections, even though
the industry had been formally requested to provide input in
December (in some ways a positive sign, as they were at least
consulted first). The amendment would have, among other
things, specifically changed the recipient of data protection
from its current form of "product" to "molecule." This would
have had the effect of removing fixed combination products
from the group of protected products. The amendment would
also have eliminated the requirement for testing if a
combination product's individual ingredients had previously
been approved - leaving aside the troubling IPR aspect of
this rule, it poses serious public health risks. Although
this amendment has not moved forward, it may have been
intended to provide cover for the MOH's later actions
violating data exclusivity.
¶17. (SBU) In other issues of concern to the pharmaceutical
sector, there has still been no progress on the patent
linkage proposal (i.e., a formal system in which MOH checks
to see if a patent has been issued before issuing a marketing
approval). GOT officials privately recognize that the idea
has some merit, but argue that Turkey has no obligation to
implement the system under its existing obligations. Data
exclusivity also remains tied to the remaining term of the
product patent and dates from the first approval in the
European Customs Union. Turkey will eventually need to
harmonize its data exclusivity rules entirely with the EU
(meaning an 11 year period of protection), but has indicated
that it plans to tie this harmonization to the date it
becomes a full member of the EU. This could push back
implementation by over a decade.
-------------------------
Where Do We Go From Here?
-------------------------
¶18. (SBU) Post recommends that Turkey remain on the Special
301 Watch List. We recognize that considerable problems
remain in Turkey's IPR regime and that the failure to amend
the trademark law in a timely manner and MOH's actions
against data exclusivity provide some justification for
raising Turkey back to the Priority Watch List. In our
judgment, however, penalizing Turkey this year is likely to
ANKARA 00000326 006.2 OF 006
dishearten those in the MOJ, MOC and Customs Undersecretariat
who are making good faith efforts to improve Turkey's IPR
protections, and is highly unlikely to change problematic
attitudes at the MOH. As one attorney recently noted to us,
"Fixing Turkey's IPR problems requires a change in the
society's mentality, and that will not happen overnight."
The past year's training programs and public awareness
campaigns lay the essential groundwork for future progress.
¶19. (SBU) Just because progress is slow, however, does not
mean it should stop. We believe that in the coming year
Turkey should:
-- Ensure that vital pieces of IPR legislation, such as the
new patent and trademark laws and the new Customs law are
finally passed and implemented. The laws should be crafted
to bring Turkey more in line with EU and international norms
instead of diverging from them, so frivolous or harmful
amendments should be avoided;
-- Issue a circular reaffirming the ex officio powers of law
enforcement to act against IPR violations;
-- Continue to provide enhanced training programs for judges,
prosecutors and law enforcement and expand the reach of these
programs beyond the specialized courts and units dealing with
IPR;
-- Transfer control of the banderole system for copyrighted
products to the private sector (Note: MOC officials have
informed us that they plan to give the power to issue
banderoles to the collecting societies in the coming year,
under MOC supervision. End note.);
-- Ensure that pharmaceutical fixed combination products
receive confidential test data protection in line with
Turkey's laws and EU commitments; and,
-- Consider including private sector representatives on the
IPR Coordination Board.
We believe that all of these goals could be achieved within
the coming year and that taken together they would contribute
to a significant continued improvement in Turkey's IPR
regime.
Visit Ankara's Classified Web Site at
http://www.intelink.sgov.gov/wiki/Portal:Turk ey
Jeffrey