VZCZCXYZ0012
PP RUEHWEB

DE RUEHSK #0126/01 0521648
ZNR UUUUU ZZH
P 211648Z FEB 08
FM AMEMBASSY MINSK
TO RUEHC/SECSTATE WASHDC PRIORITY 6932
RUCPDOC/USDOC WASHDC

UNCLAS MINSK 000126 
 
SIPDIS 
 
DEPT FOR EEB/IPE BOGER 
DEPT PLEASE PASS TO USTR FOR CHOE GROVES 
COMMERCE FOR ITA/MAC/OIPR PETERS 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: KIPR ETRD ECON BO
SUBJECT: BELARUS SPECIAL 301 REVIEW 
 
REF:  A. STATE 9475 
 ¶B. 07 Minsk 156 
 ¶C. 07 Minsk 831 
 
Summary and recommendation 
-------------------------- 
 
¶1.  Post once again recommends placement of Belarus on the watch 
list for 2008.  Belarus has made modest progress in protecting IPR 
over the past year.  Pirated optical media remains the norm, and is 
readily available across the country, including in state-owned 
stores; enforcement was minimal and impeded by deficiencies in 
Belarusian law.  However, sales of licensed software increased.  The 
GOB also supported efforts to raise the awareness of IPR concerns 
within government bodies and in the private sector.  Customs 
officials increased their vigilance against counterfactual cosmetics 
and alcohol.  In some instances government agencies also reduced 
their tendency to engage in IPR violations.  End summary and 
recommendation. 
 
 
Notorious Markets 
----------------- 
 
¶2.  The Zdanovichi market stands out as the most notorious market in 
Minsk for pirated goods, particularly DVDs and CDs.  While the scale 
of Zdanovichi does not match notorious markets in Moscow, scores of 
stalls sell obviously pirated movies and computer software.  Action 
by the GOB against pirated products at Zdanovichi would serve as a 
serious public relations move in support of IPR enforcement, 
although plenty of other outlets for the purchase of pirated goods 
exist. 
 
Optical Media Piracy 
-------------------- 
 
¶3.  Optical media piracy remained the single largest type of IPR 
violation in Belarus during 2007.  Pirated optical media is the norm 
in Belarus.  Dozens of kiosks and markets in Minsk and 
elsewhere in the country openly sell pirated media (software, DVDs 
and CDs) at prices as low as BYR 9,500 (USD 4.50).  Pirated media 
were routinely sold in state-owned stores.  Many movies were 
available on DVD before they appeared in regional theaters. 
Several vendors, including the Minsk chain "Misteriya zvuka," 
purchase DVDs only from Russian companies holding licenses and 
claimed to sell only licensed media. 
 
¶4.  The availability of pirated software and music also persists 
throughout Belarus.  Prices have risen over those reported last year 
(ref B), with the cheapest pirated software costing BYR 10,000 (USD 
4.75).  Nonetheless, Microsoft reports increases in sales of 
licensed software, albeit from a low base.  Most of this pirated 
optical media is believed to be imported from the Moscow region of 
Russia, with smaller amounts coming from Ukraine. 
 
¶5.  Companies engaged in providing outsourced programming services, 
a burgeoning industry, on the whole utilize licensed software. 
Microsoft reports that this expanding network of partner companies 
using licensed software helps increase general awareness of IPR 
concerns at least in the sphere of information technology (IT). 
Some small start-up companies still use unlicensed products, 
however. 
 
Use/Procurement of Government Software 
-------------------------------------- 
 
¶6.  There is no presidential edict or other regulation requiring 
government-purchased software to comply with international 
agreements.  Government officials have acknowledged that there is 
currently no law in Belarus recognizing software copyrights. 
Software companies hoping to prevent sales of pirated programs in 
Belarus must make a specific application to the GOB to stop the 
piracy; post has no evidence of any such application being made 
during the year.  Microsoft soon hopes to conclude a memorandum of 
understanding with the Ministry of Education.  A government official 
has indicated that the GOB would like to negotiate with Microsoft to 
establish price structures for purchasing licensed software.  The 
government-sponsored High Tech Park encourages resident companies to 
use licensed software. 
 
 
Public Performances 
------------------- 
 
¶7.  Belarusian movie theaters reportedly only show licensed films 
obtained via reputable Moscow-based distributors.  Recently 
Belarusian theaters have begun either securing rights directly from 
playwrights or paying the Belarusian Authors Association (BAA), 
which in theory relays royalties to rights holders.  On May 10, 2007 
the BAA was brought under the auspices of the National Center for 
Intellectual Property Rights (NCIPR).  In practice, authors cannot 
opt to control the rights to their works independently of the BAA. 
Musical scores are often used without recognition of the composer, 
let alone obtaining rights.  Government instruction 118, adopted 
January 28, 2008, provides copyright holders with set compensation 
if their workers are used on television or radio in Belarus. 
Whether the instruction is followed in practice remains to be seen. 
 
TRIPS Compliance 
---------------- 
 
¶8.  In August 2005, the Council of Ministers passed Decree 871, 
"Confirming the Position on Interaction of Republican Organs of 
State Governance and Law Enforcement in the Realm of Intellectual 
Property;" the decree can be found in Russian at 
http://pravo.by/webnpa/text_txt.asp?RN=C20500 871.  This decree calls 
for various government organs to cooperatively enforce legislation 
on IPR protection.  Specifically, it calls for joint action by the 
GOB on studying international IPR norms; conducting joint events and 
seminars; exchanging information and analysis; and carrying out 
joint checks for IPR violations.  The decree also designates the IPR 
responsibilities for the Ministries of 
Architecture and Construction; Internal Affairs; Health; 
Information; Culture; Education; Industry; Communications; 
Agriculture; Trade; and Economy; as well as the State Committees on 
Science and Technology; Customs; Natural Resources, Geodesics and 
Cartography; Standards and Certifications; and law enforcement 
bodies. 
 
 
 
 
Enforcement 
----------- 
 
¶9.  According to official GOB statistics, in 2007 Belarusian law 
enforcement uncovered 54 crimes under Article 201 of Belarus' 
Criminal Code ("Violation of Authorship, Literary, Invention, and 
Patent Rights"), and 18 violations of Article 250 ("Disseminating 
False Information about Goods and Services").  The authorities also 
found 437 administrative violations, and seized 50,500 units of 
unlicensed products and 21 metric tons of counterfeit goods worth 
BYR 504 million (USD 235,000).   Raids tended to be aimed at 
small-scale retailers instead of production facilities.  For 
example, the Vigmaplast optical disc replication plant near Minsk, 
opened in 2004, continues to operate two lines with a capacity of 
seven million discs per year. 
 
¶10.  Belarusian courts in 2007 tried 35 persons under Article 201. 
Not surprisingly, all 35 were found guilty.  Courts fined 27 
persons, sentenced six to corrective labor, one to parole and one to 
prison.  Authorities charged 305 persons with administrative 
violations.  Of those, 283 received fines and one a warning.  In 204 
cases counterfactual goods were also seized. 
 
¶11.  Gosstandart conducted 10 investigations related to suspected 
audio, video and software piracy in 2007.  It found eight 
violations, resulting in fines of BYR 1.1 million (USD 500).  Tax 
inspectors claimed BYR 62.4 million (USD 29,900) worth of fines and 
unpaid taxes for IPR-related violations.  Customs officials 
registered 25 audiovisual and software IPR-related violations in 
2007, resulting in the seizure of 21,000 items worth and estimated 
BYR 53 million (USD 25,000). 
 
 
¶12.  Lawyers representing Western firms reported strong cooperation 
from both the Ministry of Internal Affairs and Customs in enforcing 
their clients' trademarks.  The Ministry of Internal Affairs 
promptly investigates reported cases of vendors refusing to remove 
counterfactual products, according to lawyers.  Customs also checks 
whether importers are licensed to sell trademarked items.  The open 
border with Russia, however, keeps Customs enforcement from 
preventing the importation of many counterfactual goods. 
 
¶13.  In addition, GOB law enforcement remained hamstrung by several 
deficiencies in Belarusian law.  First, border officials lacked ex 
officio authority to seize illegal material and to initiate their 
own investigations.  Second, law enforcement agencies were not 
permitted to confiscate and destroy equipment used for the 
manufacture of pirated material.  Third, the current 
anti-circumvention and copyright management information provisions 
of Belarus' 1998 Copyright Law do not conform to World Intellectual 
Property Organization (WIPO) digital treaties with respect to the 
manufacture, importation, sale, distribution, or other trafficking 
in devices or services that are designed to circumvent technological 
protection measures. 
 
Treaties 
-------- 
 
¶14.  Belarus has been a WIPO member since 1970 and is a party to all 
relevant IPR treaties, including the Berne Convention for the 
Protection of Literary and Artistic Works (1997), the WIPO Copyright 
Treaty (2002) and the WIPO Performances and Phonograms Treaty 
(2002), as well as a number of IPR agreements under the framework of 
the Commonwealth of Independent States.  In its response to the 2006 
Special 301, the GOB boasted that under Article 20 of Belarus' 2000 
law, "On Normative Legal Acts," these international treaties had the 
"force of law" in Belarus.  However, in many cases the GOB appeared 
unable or unwilling to comply with even the smallest WIPO 
recommendations.  For example, in its 2006 answers to the 
"Questionnaire on the Implementation of Paragraph 12(a) of WIPO 
Standard ST.10/C," the NCIPR admitted that it would not conform to 
the WIPO system of patent application numbering during first filings 
by the end of that year.  Moreover, NCIPR failed to answer questions 
related to its compliance with said system in certificates of 
priority. 
 
Training 
-------- 
 
¶15.  Belarusian cooperation with WIPO continued in the area of IPR 
education and training.  In 2007, over 1,000 persons in government, 
academia and business received training in IPR protection at the 
Intellectual Property Training Center in Minsk 
 
 
Public Awareness 
---------------- 
 
¶16.  Public awareness of IPR increased, but only modestly, and 
primarily with respect to IT.  The GOB-sponsored High Tech Park 
organized a September 26-27 conference in Minsk entitled "Computer 
Programs as Intellectual Property" attended by representatives of 
several government agencies (ref C).  Belpatentservis, a GOB-owned 
company assisting with patent applications, signed a memorandum of 
understanding with the U.S. Chamber of Commerce effective through 
January 2007 to consider cooperation on a website in Belarus 
dedicated to combating piracy, although no funding for the project 
was forthcoming. 
 
Internet Piracy 
--------------- 
 
¶17.  Internet piracy is not a primary concern in Belarus due to the 
relatively high cost of internet and the low speed of most 
connections.  A relatively high proportion of Belarusians continue 
to use CDs, DVDs and even cassette tapes. 
 
Comment: Watch List Recommended 
------------------------------- 
 
¶18.  The high prevalence of piracy in Belarus calls for keeping the 
country on the Watch List.  At the same time, moving Belarus to the 
Priority Watch List would be unjustified.  Awareness of IPR is 
increasing, sales of licensed goods are increasing, and at least 
some enforcement efforts are evident.  That the Ministry of 
Education is in negotiations with Microsoft indicates the government 
is moving to get its own house in order.  This is a necessary 
precondition for average Belarusian citizens to respect IPR. 
 
Stewart