VZCZCXRO9021
PP RUEHTRO
DE RUEHTU #0271/01 0581441
ZNR UUUUU ZZH
P 271441Z FEB 07
FM AMEMBASSY TUNIS
TO RUCPDOC/USDOC WASHDC PRIORITY
RUEHC/SECSTATE WASHDC PRIORITY 2785
INFO RUEHAD/AMEMBASSY ABU DHABI PRIORITY 0866
RUEHAS/AMEMBASSY ALGIERS PRIORITY 7433
RUEHLO/AMEMBASSY LONDON PRIORITY 1278
RUEHNK/AMEMBASSY NOUAKCHOTT PRIORITY 0867
RUEHFR/AMEMBASSY PARIS PRIORITY 1741
RUEHRB/AMEMBASSY RABAT PRIORITY 8342
RUEHTRO/AMEMBASSY TRIPOLI PRIORITY 0065
RUEHCL/AMCONSUL CASABLANCA PRIORITY 4072

UNCLAS SECTION 01 OF 04 TUNIS 000271 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
NEA/MAG FOR HOPKINS AND HARRIS, EB/CBA (WINSTEAD) 
STATE PASS USTR (BELL), USPTO (ADLIN) 
USDOC FOR ITA/MAC/ONE (NATE MASON), ADVOCACY CTR (JAMES), 
AND CLDP (TEJTEL) 
CASABLANCA FOR (FCS ORTIZ) 
 
E.O. 12958: N/A 
TAGS: ETRD KIPR ECON TS
SUBJECT: TUNISIA: 2007 SPECIAL 301 REVIEW: EMBASSY INPUT 
 
REF: A. STATE 07944 
 
     ¶B. TUNIS 212 
     ¶C. 06 TUNIS 2771 
     ¶D. 06 TUNIS 2424 
     ¶E. 06 TUNIS 2140 
     ¶F. 06 TUNIS 1818 
     ¶G. 06 TUNIS 1741 
     ¶H. 06 TUNIS 1590 
 
------- 
Summary 
------- 
 
¶1. (SBU)  Post recommends that Tunisia not be included on the 
2007 Special 301 Watch List  In 2006 and early 2007, Post has 
noted a marked change in attitude towards the protection of 
intellectual property rights (IPR) among GOT officials, legal 
experts, local artisans, and business people.  IPR is now 
considered as a legal tool for the protection of a product 
and as an incentive to stimulate economic development.  An 
inter-departmental enforcement task force has stepped up its 
efforts to combat piracy.  There have been an increased 
number of raids, seizures, and closure of establishments 
selling illegal optical disks and tapes.  The GOT ended its 
"correlation system" for pharmaceuticals on January 1, 2007, 
opening the way for US pharmaceutical companies to sell their 
products locally.  While Post continues to press the GOT for 
additional improvement in Tunisia's IPR regime, the many 
positive steps taken to date (reftels) demonstrate that 
Tunisia is headed in the right direction.  Post believes that 
placing Tunisia on the Special 301 Watch List would be 
counterproductive to progress being achieved.  End Summary. 
 
------------------- 
Enforcement Efforts 
------------------- 
 
¶2. (U)  Post's constant advocacy for better IPR enforcement, 
as a prerequisite for improving the local business climate, 
has helped to encourage the GOT to implement a strategy to 
combat IPR violations in the marketplace.  Post has 
repeatedly demarched involved Tunisian authorities to 
implement a strengthened IPR regime.  Post has also assisted 
the Commercial Law Development Program (CLDP) and the US 
Patent and Trademark Office (USPTO) in tailoring technical 
assistance projects (approximately five CLDP sponsored and 
six USPTO sponsored in 2006) to support this objective.  Post 
believes that GOT participation in said programs has created 
an improved IPR protection environment and the will for a 
more stringent IPR regime. 
 
¶3. (U)  Over the past year the GOT has undertaken legal 
measures and administrative actions to address the problem, 
including amendments to the Customs law and the law on 
copyrights.  In June 2006, an inter-departmental commission, 
with representatives from the Ministry of Culture, Ministry 
of Commerce and Handicraft, Customs, Ministry of Interior, 
the Ministry of Communication Technologies, and the Organisme 
Tunisien de Protection des Droits d'Auteurs (OTPDA), was 
formed and tasked with improving IPR enforcement.  OTPDA has 
devised an action plan to combat pirated products and working 
groups have been set up to survey the main problem areas 
related to IPR enforcement.  In June 2006, the GOT also 
formed an interagency brigade composed of agents from 
different departments (police, customs, and economic control) 
that enforces and implements IPR laws.  Music suppliers, 
whether national or foreign, are subjected to strict 
oversight and an authorization will now be required for the 
reproduction of music.  More than four million counterfeit 
products were seized in 2006 during raids on various 
establishments.  Approximately 700 raids/control operations 
were conducted during 2006 along with 4,300 visits to 
targeted industrial sectors.  The majority of counterfeit 
products seized in Tunisia are related to health-care, 
body-care, automotive spare parts, electronics, and electric 
household equipment sectors. 
 
 
TUNIS 00000271  002 OF 004 
 
 
¶4. (U)  Programs to educate consumers and manufacturers on 
the importance of IPR protection also occur more frequently, 
with improved content, including a national seminar sponsored 
by the local newspaper as-Sabah that invited local 
authorities (OTPDA, INNORPI, Customs) and private sector 
representatives to discuss the IPR situation and the cost to 
the economy of IPR violations.  Public information campaigns 
have included radio and print media advertisements on the 
importance of respecting IPR.  Private television has also 
aired programs highlighting the illegality of CD/DVD piracy 
to increase public awareness.  With increasing public 
awareness of the economic and detrimental effects of 
counterfeit products, Tunisians who have been victims of 
counterfeiting are now pressuring the GOT to enact stronger 
laws and penalties to resolve the problem.  For example, the 
pirating of two local movies, "Making Off" and "VHS 
Kahloucha," and their distribution before the scheduled 
opening in movie theaters provoked strong reactions from 
Tunisian movie makers who launched an IPR awareness campaign 
and who are lobbying GOT authorities for stronger anti-piracy 
measures. 
 
--------------------------------------------- ------- 
TRIPS Compliance - Laws and International Agreements 
--------------------------------------------- ------- 
 
¶5. (SBU)  The GOT states it is in compliance with the letter 
of the TRIPS agreement as of January 1, 2005.  The GOT 
affords patent protection to patents registered in Tunisia. 
GOT ministries have also issued administrative regulations 
that enhance the protection of data exclusivity, submitted in 
the course of patent or marketing license application. 
Tunisia has withdrawn from the Madrid Agreement concerning 
International Registration, and consequently requires that 
trademarks be registered in Tunisia to receive full 
protection.  Patents, designs, and industrial models are also 
protected when registered with the National Patent Office. 
 
¶6. (U)  Tunisian Copyright Law was promulgated in Law No. 
36/1994.  Tunisia is a member of the Berne Convention for the 
Protection of Literary and Artistic Works. In addition to its 
national laws, Tunisia is a signatory of many international 
conventions related to IPR, including:  WIPO treaties, WTO 
TRIPS, UCC and UPOV, Paris Convention Regarding Trademarks, 
the Nice Agreement Concerning the International 
Classification of Goods and Services and the Treaty on the 
International Registration of Audiovisual Works. Copyrights 
are registered with the Organisme Tunisien de Protection des 
Droits d'Auteurs (OTPDA).  Tunisia is also a member of the 
Hague Agreement of November 6, 1925 for the International 
Registration of Designs and Industrial Models.  Designs and 
industrial models are protected through registration with the 
Institut National de la Normalisation et de la Propriete 
Industrielle (INNORPI).  The Civil Court prosecutes all 
violations and is entitled to confiscate revenues and 
counterfeit copies.  New legislation now permits customs 
officials to inspect and seize goods if copyright violation 
is suspected. 
 
-------------------------------------- 
Government Use/Procurement of Software 
-------------------------------------- 
 
¶7. (SBU)  Post has previously reported that use of 
unauthorized software on government (and personal) computers 
in Tunisia is widespread with only limited agencies using 
authorized copies.  However, during the Microsoft Government 
Leaders Forum in South Africa July 11-12, the GOT and the 
Microsoft Corporation signed a partnership agreement (Ref D) 
that commits the GOT to using licensed software.  As part of 
the agreement, Microsoft will help the GOT to upgrade and 
modernize its computers and networking capabilities.  In 
turn, the GOT agreed to purchase 12,000 licenses to update 
government computers with 
official Microsoft software, rather than the pirated versions 
that have been commonly used.   The agreement also includes 
the establishment of IT training centers, equipped with 
 
TUNIS 00000271  003 OF 004 
 
 
legitimate computers and software, to educate students. 
Microsoft will establish a Microsoft Innovation Center in 
Tunisia for developing local software production capacity by 
providing training and consulting services to software 
developers.  Additionally, future GOT tenders for IT 
equipment will specify that the equipment must be Microsoft 
compatible, a requirement that was previously prohibited by 
the Tunisian open software policy. 
 
------------- 
Optical Media 
------------- 
 
¶8. (U)  While the GOT has taken significant positive steps, 
additional progress is needed in the optical media and 
pharmaceutical sectors.  Post has raised the issue of optical 
media piracy at the highest Ministerial and working levels. 
In late October 2006, French retailer, Carrefour, withdrew 
pirated CDs and DVDs from its shelves (Ref C).  In addition, 
Carrefour now includes a copyright declaration in its 
advertisements warning consumers against unauthorized 
reproduction of these ads.  Ministry of Commerce (MOC) 
officials, whom EconOff contacted about this positive action, 
indicated that Carrefour stopped selling counterfeit products 
as a result of a directive from MOC.  MOC officials told 
EconOff that on January 15, 2007, the MOC sent warning 
letters to major retailers (i.e. Geant and Monoprix).  The 
letters delineated the laws being violated by each retailer 
and asked them to cease the sale of pirated goods.  Thus far, 
Carrefour is the only major retailer to abandon the sale of 
pirated goods.  Several other major retailers, such as Geant 
and Monoprix, have continued to stock pirated DVDs and CDs. 
The MOC officials told EconOff that if these retailers do not 
voluntarily stop selling counterfeit products, the MOC's next 
step will be the seizure and the destruction of the 
counterfeit products.  The Ministry of Culture has also 
closed 98 establishments selling illegally recorded tapes and 
CDs as part of its anti-piracy plan. 
 
--------------- 
Pharmaceuticals 
--------------- 
 
¶9. (SBU)  Following Post's engagement in 2006, the Tunisian 
Ministry of Health (MOH) issued an administrative circular 
that suspends the "Correlation System" on January 1, 2007. 
The "Correlation System" allowed for the selective exclusion 
of foreign-produced drugs from the Tunisian market place when 
sufficient, locally manufactured quantities (generics) 
existed.  The termination of this "Correlation System" is a 
positive step.  However, the fact that the termination is not 
retroactive, and that the GOT correlated approximately 150 
additional drugs a few days before issuing its circular 
terminating the "Correlation System" presents a problem 
(septel).  The MOH is unwilling to provide a copy of this 
list of newly correlated drugs but US pharmaceutical 
representatives indicate that US drugs are included. 
 
¶10. (SBU) On February 9, Ambassador and EmbOffs met with 
officials of Tunisia-based US pharmaceutical companies to 
seek their views on the "Correlation System" termination and 
on the enforcement of the 2005 MOH revised administrative 
Circular No. 40 regarding data exclusivity and data 
protection.  While the officials said they were happy to see 
the end of correlation, most of them had drugs on the list of 
newly correlated drugs.  The companies affected, have begun 
to appeal the correlation of their drugs.  (Note:  Ambassador 
met with the Minister of Health on January 24.  EconOff 
followed up with the Director General of the Pharmacy and 
Drug Department on February 20.  Post is working closely with 
affected companies to achieve the withdrawal of respective 
drugs from the correlation list.  End Note.) 
 
--------------- 
Data Protection 
--------------- 
 
 
TUNIS 00000271  004 OF 004 
 
 
¶11.  (SBU)  Regarding data exclusivity and data protection, 
the US pharmaceutical community remains unconvinced that GOT 
adequately complies with these TRIPS tenets.  They criticized 
the absence of a legal framework regarding the regulation and 
the management of pharmaceutical policies in Tunisia. 
Decisions, rules and  procedures are implemented through 
administrative circulars and the US pharmaceutical companies 
would like to see these circulars enacted into law.  Circular 
No. 40 (dated May 3, 2005) establishes the required framework 
for data protection concerning new pharmaceuticals and 
adheres to TRIPS article 39 (Note:  Language used is 
identical to TRIPS article 39.  End Note.)  The circular 
protects data against any divulgence unless necessary for 
public health.  Circular No. 40, article 3 grants a five year 
term of data protection in Tunisia.  MOH officials stress 
that generics are not allowed until after the five year 
protection period has expired.  The data protection period 
starts from the date of deposit related to the application 
file for marketing authorization (Autorisation de Mise sur le 
March - AMM).  The marketing authorization process is 
administered by the Pharmacy and Drug Department (Direction 
de la Pharmacie et du Mdicament - DPM).  However, while 
adamantly insisting that GOT is in compliance with its WTO 
TRIPS obligations, the DPM Director General recently told 
EconOff that the DPM cannot refuse marketing authorization 
requests from Tunisian manufacturers of generics, if the data 
used to produce the generic is in the public domain.  In her 
words, the DPM/GOT is only responsible for protecting data 
which is in its possession and not data that is publicly 
available.  (Comment:  Statements such as this lead Post to 
agree with the local US pharmaceutical community's contention 
that perhaps TRIPS article 39.3 is too vague and that GOT 
officials do not fully understand the concept of "unfair 
commercial use."  This is an area that requires further focus 
and education to achieve practical application of TRIPS 
article 39.3 and/or GOT Circular No. 40.  End Comment.) 
 
----------------------------- 
Recommendation and Conclusion 
----------------------------- 
 
¶12. (SBU)  Although Tunisia was not placed on the 2006 
Special 301 Watch List, the GOT took a number of positive 
steps to strengthen and improve the IPR regime in 2006. 
Therefore, placing Tunisia on the 2007 Special 301 Watch List 
would be counterproductive at this time.  While there is 
still areas for improvement in Tunisia's IPR regime, the 
positive GOT engagement and efforts in 2006, as well as 
strong cooperative IPR programs with USG agencies demonstrate 
that Tunisia is headed in the right direction.  The GOT has 
also met with and addressed IPR issues with private entities 
(i.e. Microsoft).  Continued engagement via targeted USPTO 
and CLDP programs would be more beneficial and more apt to 
produce the desired results than a Special 301 listing. 
 
-------------- 
GOT Submission 
-------------- 
 
¶13. (SBU)  The Ministry of Foreign Affairs (MFA) has 
indicated that GOT would have a submission for the 2007 
Special 301 Review process but that it could not meet the 
February 12th deadline.  Post will forward GOT submission 
when received. 
GODEC