VZCZCXRO6232
PP RUEHTRO
DE RUEHTU #0172/01 0561043
ZNR UUUUU ZZH
P 251043Z FEB 08
FM AMEMBASSY TUNIS
TO RUEHC/SECSTATE WASHDC PRIORITY 4483
INFO RUEHAS/AMEMBASSY ALGIERS PRIORITY 7620
RUEHEG/AMEMBASSY CAIRO PRIORITY 1566
RUEHLO/AMEMBASSY LONDON PRIORITY 1422
RUEHNK/AMEMBASSY NOUAKCHOTT PRIORITY 0960
RUEHFR/AMEMBASSY PARIS PRIORITY 1895
RUEHRB/AMEMBASSY RABAT PRIORITY 8509
RUEHTRO/AMEMBASSY TRIPOLI PRIORITY 0194
RUEHCL/AMCONSUL CASABLANCA PRIORITY 4190
RUEATRS/DEPT OF TREASURY WASHINGTON DC PRIORITY
RUCPDOC/USDOC WASHDC PRIORITY

UNCLAS SECTION 01 OF 04 TUNIS 000172 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
STATE FOR EEB/TPP/IPE (BOGER) AND NEA/MAG (HARRIS) 
STATE PASS USTR (GROVES AND BURKHEAD) 
USDOC FOR ITA/MAC/ONE (NATHAN MASON), ADVOCACY CTR 
(REITZE), AND CLDP (TEJTEL AND MCMANUS) 
USDOC PASS USPTO (ADAMS, BROWN AND MARSHALL) 
CASABLANCA FOR FCS (ORTIZ) 
EGYPT FOR FCS (MOEZIE) 
LONDON AND PARIS FOR NEA WATCHER 
 
E.O. 12958: N/A 
TAGS: ECON ETRD KIPR TS
SUBJECT: TUNISIA: 2008 SPECIAL 301 REVIEW 
 
REF: A. STATE 9475 
     ¶B. TUNIS 68 
     ¶C. 07 TUNIS 1249 
     ¶D. 07 TUNIS 1135 
     ¶E. 07 TUNIS 992 
     ¶F. 07 TUNIS 271 
     ¶G. 06 TUNIS 2771 
     ¶H. 06 TUNIS 2424 
 
------- 
Summary 
------- 
 
¶1. (SBU) Post recommends that Tunisia not be placed on the 
Special 301 Watch List.  GOT officials at the highest levels 
-- including President Ben Ali himself -- continue to 
publicly stress the importance of intellectual property 
rights (IPR), demonstrating the high-level commitment that 
exists for IPR protection.  While more work remains to be 
done in preventing optical disc piracy, in 2007 the GOT's 
interagency IPR enforcement brigade conducted 735 raids, 
leading to the issuance of 314 infractions, the closure of 73 
establishments and 34 court cases.  This year several US 
pharmaceutical companies received authorization to import 
products that were previously restricted under the GOT's 
"correlation system."  However, not all US pharmaceutical 
companies have been able to remove their products from the 
list of correlated products.  In addition, US pharmaceutical 
companies express lingering concerns that Tunisia does not 
protect data exclusivity, despite GOT assertions that it is 
fully TRIPS-compliant.  Although we would like to see more, 
and faster, improvements on IPR enforcement and final 
resolution of outstanding US pharmaceutical company concerns, 
we believe that constructive engagement, including through 
the TIFA process, is the best approach to resolve ongoing IPR 
concerns.  End Summary. 
 
-------------------------------- 
Commitment at the Highest Levels 
-------------------------------- 
 
¶2. (U) GOT officials at the highest levels -- including 
President Ben Ali himself -- continue to publicly stress the 
importance of intellectual property rights (Ref E).  IPR is 
considered a legal tool for the protection of products and an 
incentive to stimulate economic development.  The GOT's lead 
agencies for IPR protection -- the National Institute for 
Standardization and Industrial Property (INNORPI - Institut 
National de la Normalisation et de la Propriete Industrielle) 
and the Tunisian Copyright Protection Organization (OTPDA - 
Organisme Tunisien de Protection des Droits d'Auteur) -- are 
active participants in USG-funded training, including 
workshops and seminars sponsored by the US Patent and 
Trademark Organization (USPTO).  Additionally, GOT officials 
in ministries such as Commerce, Justice, Development and 
International Cooperation, Public Health and Communications 
are also stressing the importance of intellectual property 
rights.  In a February 15 meeting with Econ/CommercialOff to 
discuss the Special 301 review Ministry of Commerce Director 
of WTO Relations Wajdi Khemakhem maintained that Tunisia is 
WTO compliant.  He also said that the GOT continues to beef 
up its IPR enforcement.  According to Khemakhem, Tunisia's 
Department of Economic Control and Competition continues its 
efforts to prevent and control counterfeit products through 
raids, warnings, and seizures, including working to get the 
large retailers such as Geant and Monoprix to remove pirated 
optical media from their shelves.  Media coverage of GOT 
enforcement operations, as well as official statements and 
private sector commentary in support of IPR, continue to 
raise public awareness on this issue. 
 
--------------------------------------------- ------------ 
Compliance with TRIPS and Other International Obligations 
 
TUNIS 00000172  002 OF 004 
 
 
--------------------------------------------- ------------ 
 
¶3. (U) The GOT states that it is in full compliance with 
TRIPS and all international obligations for which it is a 
signatory.  Tunisia is a member of the World Intellectual 
Property Organization (WIPO) and is a signatory to 
international conventions, including: the United Nations 
(UNCTAD) Agreement on the Protection of Patents and 
Trademarks, the Berne Convention for the Protection of 
Literary and Artistic Works, and the Paris Convention 
Regarding Trademarks, among others.  Although GOT officials 
note that in the case of a discrepancy international 
obligations supersede Tunisian law, new legislation which is 
ready to be submitted before President Ben Ali will remove 
any potential contradictions (Ref E).  (NOTE: Pharmaceutical 
company concerns with TRIPS-compliance and the GOT response 
to such concerns are addressed in para 8 and 9, respectively. 
END NOTE.) 
 
-------------------------------- 
Enforcement Steps Up... Somewhat 
-------------------------------- 
 
¶4. (SBU) Enforcement of Tunisia's solid IPR legislation 
remains the most significant weakness in the GOT's IPR 
regime.  During 2007, the GOT's interagency enforcement 
brigade reported 735 control operations, which led to the 
issuance 314 infractions.  This represents a slight increase 
from the nearly 700 raids conducted in 2006.  In 2007, 
enforcement raids led to the closure of 73 establishments and 
to the submission of 34 cases before the courts.  (NOTE: 
These court cases are still pending.  END NOTE.)  New GOT 
legislation that is ready to be submitted to the President 
should improve enforcement capabilities by easing the 
procedural burdens required to seize counterfeit goods and 
granting OTPDA enforcement authority (Ref E). 
 
------------------------------ 
Slow Progress on Optical Media 
------------------------------ 
 
¶5. (U) Optical media piracy remains widespread.  Although 
French retail chain Carrefour voluntarily removed pirated 
optical discs from its shelves in response to GOT pressure in 
2006 (Ref G), several major retailers -- including 
supermarket chains Geant and Monoprix -- continue to stock 
pirated CDs and DVDs.  GOT officials have sent warnings to 
these retailers, but have yet to follow up the letters with 
enforcement.  In addition to retail sale, pirated optical 
discs continue to be sold by small shop owners and at major 
markets (Ref D). 
 
-------------------------- 
Software Piracy Decreasing 
-------------------------- 
 
¶6. (SBU) Software piracy remains a concern, but the rate of 
software piracy appears to be decreasing annually.  The 
Business Software Alliance shows that while the overall rate 
of software piracy remains high -- 79 percent for 2006 -- it 
has decreased from a high of 84 percent in 2004.  Following 
the signature of an agreement with the GOT in 2006 (Ref H), 
Microsoft has noted improved cooperation with the GOT -- 
including GOT purchases of licensed Microsoft software. 
 
--------------------------------------------- --- 
Pharmaceuticals: Progress and Lingering Concerns 
--------------------------------------------- --- 
 
¶7. (SBU) In January 2007, the GOT suspended the "correlation 
system" which excluded drugs manufactured abroad in favor of 
locally produced generics (Ref F).  However, drugs placed on 
the list of correlated pharmaceutical products prior to the 
 
TUNIS 00000172  003 OF 004 
 
 
suspension continued to be excluded from the marketplace. 
Following the suspension of the "correlation system," several 
US pharmaceutical companies have successfully removed their 
products from the list of correlated products and can now 
import them.  In several cases where US company appeals are 
still pending with the Ministry of Public Health, these 
companies have been granted temporary import authorization. 
Despite these successes, other US pharmaceutical companies 
have thus far been unsuccessful in receiving import approval 
for their products.  During a recent meeting with the 
Ambassador, Minister of Public Health Mondher Zenaidi 
expressed his willingness to discuss and resolve any problems 
US pharmaceutical companies were experiencing with regard to 
correlation (Ref B). 
 
¶8. (SBU) US pharmaceutical companies express lingering 
concerns that the GOT does not meet its obligations on data 
exclusivity and data protection (Ref F).  The GOT continues 
to assert that it is in full compliance with TRIPS and other 
international obligations.  The Embassy and other high-level 
visitors have repeatedly raised pharmaceutical concerns with 
data exclusivity during meetings with GOT officials. 
Minister for Development and International Cooperation 
Mohamed Nouri Jouini stated that if the United States 
demonstrates that Tunisia is not TRIPS compliant, the GOT 
will address the problem (Ref C). When asked about whether 
the GOT was prepared to address the data protection and data 
exclusivity concerns of the US phamaceutical companies, 
Ministry of Commerce official Khemakhem said that if a US 
company could provide specific case evidence, he would be 
willing to investigate the issue. 
 
--------------------- 
Geographic Indicators 
--------------------- 
 
¶9.  (SBU) The GOT passed a new law (no. 2007-68) in December 
2007 setting up a regime for the creation and protection of 
geographic indicators for Tunisian handicrafts.  The Embassy 
will monitor implementation of this law and report 
accordingly. 
 
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Comment 
------- 
 
¶10. (SBU) Although we would like to see more, and faster, 
improvements on IPR enforcement and final resolution of 
outstanding US pharmaceutical company concerns, we do not 
believe that placing Tunisia on the Special 301 Watch List 
would positively influence either course of events.  In our 
view, designating Tunisia as a Priority Watch List country 
would not alter GOT behavior, but would reduce our ability to 
press for enhanced IPR compliance.  The Embassy actively 
engages the GOT by stressing IPR enforcement and 
pharmaceutical concerns in meetings with GOT officials and 
through technical assistance programs and training.  GOT 
officials regularly participate in USPTO course offerings in 
the United States and will participate in a USPTO copyright 
enforcement seminar planned for March in Tunis.  The TIFA 
Council scheduled for March 10-11 will provide the best 
opportunity to address continuing IPR concerns.  IPR is the 
focus of one of the four TIFA working groups and we encourage 
private sector participation, particularly from 
pharmaceutical companies, during these meetings.  We believe 
that constructive engagement between pharmaceutical companies 
and the GOT through the TIFA process, rather than watch 
listing, is the best approach to resolve ongoing 
pharmaceutical company concerns and IPR enforcement issues. 
End Comment. 
 
Please visit Embassy Tunis' Classified Website at: 
http://www.state.sgov.gov/p/nea/tunis/index.c fm 
 
TUNIS 00000172  004 OF 004 
 
 
GODEC