VZCZCXRO0371
RR RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV
DE RUEHAK #3040/01 3611612
ZNR UUUUU ZZH
R 271612Z DEC 07
FM AMEMBASSY ANKARA
TO RUEHC/SECSTATE WASHDC 4773
INFO RUEHIT/AMCONSUL ISTANBUL 3680
RUEHDA/AMCONSUL ADANA 2559
RUCNMEM/EU MEMBER STATES COLLECTIVE

UNCLAS SECTION 01 OF 04 ANKARA 003040 
 
SIPDIS 
 
EB/TPP/IPE FOR JBOGER 
PLEASE PASS USTR FOR JCHOE-GROVES AND MMOWREY 
USPTO FOR JURBAN 
USDOC FOR ITA/MAC/CRUSNAK 
 
SENSITIVE 
SIPDIS 
 
E.O.12958: N/A 
TAGS: ECON ETRD KIPR PGOV TU
SUBJECT: TURKEY:  2007 ADVANCE SPECIAL 301 INITIATIVE UPDATE 
 
Ref: A) STATE 158938, B) STATE 107629 
 
ANKARA 00003040  001.2 OF 004 
 
 
Summary 
------- 
 
¶1. (SBU) The Turkish government has made little progress on six 
action items in the 2007 Advance Special 301 Initiative Action Plan 
since we presented it to them in August.  Foreign Trade 
Undersecretariat (FTU) officials enthusiastically accepted the plan 
but, we surmise, ran into resistance with the other agencies 
responsible for implementing the changes requested.  On the first 
three action items, which deal with Pharmaceutical issues, the GOT 
has shown the most ambiguity and the least tangible action.  For the 
piracy and counterfeiting action item, industry interest groups are 
pleased with the cooperation from the Turkish police but tell us 
that more is needed from Turkish Customs officials and the 
judiciary.  The Ministry of Culture has taken the lead in ensuring 
that government offices use licensed software, as requested in the 
fifth item, but statistics are not yet available on compliance.  FTU 
officials have agreed to a DVC with USTR in January, and we 
encourage USTR to use this opportunity to focus on the final action 
item, deficiencies in the Turkish IPR legislation implementing WIPO 
Internet Treaties.  We would welcome a visit by D/USTR Veroneau in 
January to reinforce our IPR message but recognize that there is 
little time left to complete these action items before the 2008 
Special 301 Report and U.S.-Turkey TIFA talks.  End summary. 
 
Pharmaceutical Issues 
--------------------- 
 
¶2. (U) Action Items:  1) Provide quarterly updates to AiFD and the 
U.S. on the status of the remaining applications filed by generic 
pharmaceutical manufacturers prior to January 1, 2005, indicating 
whether or not any have been rejected or approved and which 
applications have yet to be completed by the applicant; 2) Amend the 
law that improperly terminates data protection upon the expiration 
of the Turkish patent term of protection; 3) Implement a system of 
coordination between Turkish health and patent authorities in order 
to prevent the issuance of marketing approvals for patent-infringing 
copies of pharmaceutical products. 
 
¶3. (SBU) As with previous Special 301 cycles, Turkish officials have 
shown the greatest ambiguity on pharmaceutical issues.  U.S. 
pharmaceutical companies operating in Turkey told us they are 
pleased with the Turkish Ministry of Health's (MOH) unofficial 
"moratorium" on the remaining generics applications filed prior to 
the January 1, 2005 start of Turkey's data exclusivity legislation. 
They welcomed our approach in the Advance Special 301 Initiative 
that asked for quarterly updates on the status of these applications 
versus demanding action from the MOH on the applications.  They 
currently receive sporadic updates from the MOH every 3 - 6 months. 
 
 
¶4. (SBU) After receiving the Advance Special 301 Initiative in 
August, FTU officials asked for our assistance in organizing a 
meeting to include Turkey's research-based pharmaceutical lobby 
group AiFD, AiFD's U.S. membership, FTU and the Ministry of Health 
(MOH) to discuss the pharmaceutical-related action items.  We 
communicated this request to the PhRMA company local representative 
who heads the Local American Working Group (LAWG), but did not 
receive a response.  We have now put FTU in direct contact with 
AiFD's Secretary General, Engin Guner, to arrange the meeting, but 
it has not yet occurred in part because of hesitation on the part of 
the companies to meet directly with the GOT on these issues. 
 
¶5. (SBU) Guner told us that the top issue for research-based 
companies in Turkey has shifted in 2007 from data exclusivity to 
product reimbursement approval within the state healthcare system. 
He cautioned that pushing Turkey's MOH to make decisions on the 
outstanding generics applications filed prior to January 1, 2005, 
would most certainly prove counterproductive and bring favorable 
decisions for the generics manufacturers. 
 
¶6. (SBU) U.S. PhRMA company representatives in Turkey are not overly 
concerned about the law that improperly terminates data protection 
upon the expiration of the Turkish patent term of protection.  The 
current patent term lasts twenty years, far beyond even the most 
generous data exclusivity provisions.  In theory, they understand 
why USTR would take issue with such a law and support its 
abolishment, and are somewhat concerned that at some point in the 
future, patent and data exclusivity terms could catch up with each 
other.  They believe that the provision was implemented at the last 
minute to appease Turkey's powerful generics producers.  Turkish 
officials have said nothing about this action item since receiving 
the Special 301 Initiative from us in August. 
 
ANKARA 00003040  002.2 OF 004 
 
 
 
¶7. (SBU) U.S. PhRMA company representatives in Turkey have mixed 
views about how to implement the request to create a system of 
coordination between Turkish health and patent authorities similar 
to the one used in the U.S.  One U.S. company representative 
cautioned against pushing anything that would require generic and 
innovative companies to publish their applications for marketing 
approval in the Turkish National Gazette.  He voiced a previous 
request that the Turkish MOH and Patent Institute (TPI) develop a 
system of linkages.  Turkish officials maintain that their system is 
in compliance with EU norms.  They also argue that a linkage system 
between the MOH and Turkish Patent Institute is not an international 
requirement and therefore not something on which the GOT is ready to 
expend limited resources.  There has only been one case of a 
patent-infringing product reaching the market, a generic of the Eli 
Lilly antidepressant Zyprexa. 
 
Piracy and Counterfeiting 
------------------------- 
 
¶8. (U) Action Item: 4) Continue the IPR enforcement campaign against 
piracy and counterfeiting (especially against book piracy) and 
provide quarterly and annual statistical readouts of success.  In 
particular, please provide updates on the Turkish Government's plans 
to: 
-- provide training to police and customs officials on fighting IP 
infringement; 
-- implement a public awareness campaign; 
-- issue policies or regulations to stem piracy and counterfeiting; 
and 
-- cooperate with rights holders to undertake and publicize 
substantial enforcement IPR actions. 
 
¶9. (SBU) The Turkish Ministry of Justice (MOJ) provided the 
following seizure statistics through December 12, 2007*: 
 
                        2006      2007*       Total 
                        ----      ----        ----- 
# of operations:        4,752     3,569       8,321 
 
# arrested:             5,289     3,970       9,259 
 
CONFISCATED MATERIAL: 
CD/VCD w/out banderole: 4,581,878  2,008,654  6,590,532 
 
DVD w/out banderole:      436,302    476,846    913,148 
 
Books w/out banderole:    217,745    222,107    439,852 
 
Video Cassette w/out 
   Banderole:               1,512        388      1,900 
 
Cassette Tapes w/out 
   Banderole:              75,295     26,943    102,238 
 
Pornography:              160,078     83,867    243,945 
 
CD/VCD w/ banderole:        5,002     12,165     17,167 
 
Books w/ banderole:         2,755     10,490     13,245 
 
Cassette Tapes w/ 
   Banderole:               7,531     54,900     62,431 
 
CD/VCD/DVD Covers:    138,943,851 8,202,553 147,146,404 
 
¶10. (SBU) Representatives of Turkey's music and motion picture 
intellectual property protection interest groups, MU-YAP and AMPEC 
respectively, told us that overall they are pleased with the Turkish 
National Police and Jandarma's cooperation in conducting raids and 
seizures of pirated materials.  The 2006 law providing cash 
incentives for law enforcement officials involved in such raids has 
reaped substantial benefits.  Problems still remain, however, in the 
court system and with Turkish Customs officials.  Ahmet Asena, 
Secretary General of MU-YAP, told us that with the increase in the 
 
SIPDIS 
availability of Internet music piracy, judges with little training 
on the intricacies of IPR law have had difficulty successfully 
prosecuting the cases with the evidence presented.  AMPEC Secretary 
General Nilufer Sapancilar told us that Turkish Customs officials 
lack motivation and prefer to prosecute piracy cases under the 
smuggling law instead of the IPR law because it is easier and the 
penalties are more severe. 
 
¶11. (SBU) Asena explained that the decrease in the amount of pirated 
music seized is because sellers are no longer stockpiling illegal 
 
ANKARA 00003040  003.2 OF 004 
 
 
copies.  Instead, consumers go to a place where they can buy pirated 
music and have a mix CD-R burned for them.  Sapancilar told us that 
seizures have decreased recently because storage warehouses are full 
and new ones are being built but have not been completed.  While 
Turkish legislation allows a prosecutor to introduce a sample of the 
seized goods as evidence during a case, Turkish judges still insist 
that the entire seizure be stored in warehouses as evidence 
throughout the court proceedings.  This evidence must be maintained 
throughout the appeals process as well, and since all IPR cases must 
go to Turkey's 7th Court of appeal, this means long delays and 
storage time.  There has not been an appellate decision in an IPR 
case since 2004.  Sapancilar was pleased to report, however, that 
street sales of pirated motion pictures are down 80% in Turkey, and 
street vendors are scarce. 
 
¶12. (SBU) Both Asena and Sapancilar praised the latest amendment to 
Turkey's IPR law that allows a court to shut down an Internet site 
with illegal content.  Both have had success in quickly shutting 
down access to sites that permit illegal downloading, including 
piratebay.com and other music piracy sites.  The legislation 
requires that the site be blocked within ten days of a complaint, 
and both said the courts are adhering to this requirement. 
 
¶13. (SBU) Sapancilar provided statistics on the number of 
investigations, raids and legal actions taken from 1988 through 
October 2007.  A breakout of the last three years is as follows: 
 
Year   Investigations   Raids   Legal Action  Decisions 
                                  Taken 
----   --------------   -----   ------------  --------- 
2005     958              926     885           49 
2006    2070             1655    1585           60 
2007    1021 (10/07)      857     828          124 
 
Software Piracy 
--------------- 
 
¶14. (U) Action Item: 5) Issue a government-wide request for 
statistical reports demonstrating compliance with the 1998 
governmental decree mandating the use of licensed software in 
governmental ministries, as well as monitor compliance of ministries 
with the decree.  Take actions against business software piracy in 
the private sector and by individuals, including by initiating 
enforcement actions and launching a public awareness campaign. 
 
¶15. (SBU) Turkey's Ministry of Culture and Tourism has 
responsibility for reissuing the Prime Ministerial decree requiring 
the use of licensed software in government agencies, something they 
hope to have completed by early next year.  Statistics are not yet 
available about government compliance. 
 
¶16. (SBU) Turkey's Business Software Alliance (BSA) chapter chair 
Elcim Barkay expressed little concern about pirated software use in 
government offices but told us that currently about 60% of software 
used in Turkish homes is unlicensed.  She plans to shift BSA and 
Microsoft's (for whom she works) focus from the criminal aspects of 
using pirated software to a public awareness campaign on how respect 
for IPR can bring better jobs and a stronger economy for Turkey's 
youth.  Barkay is also focusing on programs in Turkey's elementary 
schools and hopes to fund a competition in Turkey's universities 
where students will design a public awareness campaign.  She agreed 
that Turkish judges are having difficulty prosecuting IPR cases. 
She offered BSA's assistance in translating the training materials 
provided to English-speaking judges who participate in USPTO courses 
in the U.S. into Turkish for the 90% of Turkish judges who do not 
speak English. 
 
WIPO Treaties 
------------- 
 
¶17. (U) Action Item: 6) Work to address remaining deficiencies in 
Turkey's copyright law to implement fully the WIPO Internet Treaties 
(WCT and WPPT).  The U.S. will work together with Turkey to ensure 
Turkey's full implementation of the WIPO Internet Treaties. 
 
¶18. (SBU) Turkish government officials have taken great pride in 
their 2007 ratification of the WIPO Internet Treaties.  We would 
suggest that USTR use the proposed January 2008 DVC with FTU 
officials as an opportunity to explain in better detail the 
deficiencies found in Turkey's current copyright legislation. 
 
Comment 
------- 
 
¶19. (SBU) Turkey has made little progress on the Advance Special 301 
 
ANKARA 00003040  004.2 OF 004 
 
 
Initiative.  While FTU officials enthusiastically received it, we 
believe that they met resistance from the other Turkish ministries 
and agencies responsible for implementing the action items.  While 
industry has noted some positive developments, the situation on the 
ground still indicates that Turkey's IPR legislation is sufficient, 
but its implementation and enforcement is not. During a December 5 
meeting, PhRMA company representatives in Turkey told us they would 
go into this year's Special 301 review with no preconceived ideas 
about their recommendation.  Subsequently, however, they indicated 
that PhRMA will likely recommend that Turkey remain on the Priority 
Watch List in 2008, a move that makes it difficult to bring Turkey 
down to the Watch List without tangible action by the GOT between 
now and April 2008.  We welcome a visit by D/USTR John Veroneau in 
January to reinforce our IPR message but recognize that there is 
little time left to complete these action items before the 2008 
Special 301 Report and U.S.-Turkey TIFA talks.  End comment. 
 
WILSON