VZCZCXRO2901
PP RUEHIK
DE RUEHWR #1211/01 3441801
ZNR UUUUU ZZH
P 101801Z DEC 09
FM AMEMBASSY WARSAW
TO RUEHC/SECSTATE WASHDC PRIORITY 9243
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE PRIORITY
RUCPDOC/USDOC WASHDC PRIORITY
RUEHKW/AMCONSUL KRAKOW PRIORITY 2340
RUCPDOC/DEPT OF COMMERCE WASHINGTON DC PRIORITY
RUEHBS/USEU BRUSSELS PRIORITY

UNCLAS SECTION 01 OF 03 WARSAW 001211 
 
SIPDIS 
 
STATE FOR EUR/CE MGLANTZ AND MLIBBY 
STATE FOR EEB/TPP/IBE TMCGOWAN, TO'KEEFE, AND JURBAN 
STATE PASS TO USTR FOR JENNIFER GROVES AND DAVID WEINER 
COMMERCE FOR HILLEARY SMITH AND MICHAEL ROGERS 
 
E.O. 12958: N/A 
TAGS: ECON ETRD KIPR PL
SUBJECT: POLAND: OUT OF CYCLE REVIEW OF INTELLECTUAL 
PROPERTY RIGHTS 
 
REF: A. A. WARSAW 259 
     ¶B. B. WARSAW 225 
 
WARSAW 00001211  001.3 OF 003 
 
 
¶1. (SBU) Summary and Comment.  We assess the Polish 
Government's (GoP's) November 23 Out-of-Cycle review (OCR) 
submission as credible.  The GoP has tightened its efforts to 
fight IPR violations, particularly with regard to internet 
piracy, to strengthen public awareness of the value of IP, 
and to build training capacity for prosecutors and judges. 
Despite those improvements, counterfeit products continue to 
be available at markets on the German border, though in 
declining amounts.  Renewed GoP efforts to fight IP 
violations are responsive in part to USG and industry 
concerns, but Poland's leadership appears increasingly aware 
that a weak IP regime damages Poland's own efforts to build 
innovation into the domestic economy.  Post recommends Poland 
be removed from the Special 301 Watch List. 
 
¶2.  (SBU)  We understand that the OCR decision with respect 
to Poland may be delayed to the spring.  We strongly urge 
against delay.  Poland's presence on the Watch List since 
2003, despite the dramatically improved IP protection regime 
here, has weakened the list's value as a tool of engagement. 
The present OCR motivated a robust GoP response to the 
process.  We fear the Section 301 process will lose all 
credibility here should we fail to complete our end of the 
process.  End Summary and Comment. 
 
Assessment of the GoP's Report 
------------------------------ 
 
¶3.  (SBU) The GoP's November 23 submission for the OCR is a 
credible, detailed response to USG concerns as outlined in 
the Section 301 Out-of-Cycle Action Plan for Poland.  The 
report shows stepped-up efforts 
 
  - against piracy in marketplaces and on the internet, 
  - to train specialized Polish judges and prosecutors, 
  - to better coordinate interagency efforts to fight piracy, 
and 
  - to raise public awareness about the value of protecting 
IP. 
 
¶4. (U) The report asserts continued strong cooperation of the 
police, border guards and customs officers in planning and 
running enforcement actions at markets throughout the 
country.  The GoP credits, for example, engagement between 
law enforcement and market operators - including operators of 
border markets - with reduced distribution and smuggling of 
optical media.  Police, customs and border guards seized 
goods worth over Euro 19 million (USD 28.1 million) in the 
first half of 2009.  The report credits law enforcement as 
well as a move to internet distribution of digital content 
with the general decline in the identification of counterfeit 
IP in markets. 
 
¶5. (SBU) Rights holders organizations in Poland - 
International Intellectual Property Alliance-affiliate ZPAV, 
Motion Picture Association of America-affiliate FOTA, and the 
Business Software Alliance (BSA) - report they do not 
question the report's data.  The groups generally praise GoP 
enforcement efforts as well as cooperation with the groups 
themselves.  They support the GoP claim that more effective 
enforcement has driven down volume of goods and therefore of 
seizures, including at border markets.  FOTA's representative 
shared his internal statistics with Econoff, which show that 
out of 586 cases passed to the police through November 2009, 
police have carried out 569 raids resulting in 551 criminal 
proceedings. The largest seizures were seen in illegal DVDs, 
DVD-Rs, and Sony Playstation DVDs. ZPAV's representative 
pointed to a set of recent raids - and new ones in the works 
- to underscore improvements of cooperation now taking place. 
 
 
¶6. (U) The government has formed an "Internet Group" that 
brings together the ministries of Justice, Interior, Finance, 
and Culture with internet service providers (ISPs) to target 
and coordinate enforcements efforts against internet piracy. 
The Business Software Alliance's (BSA) representative in 
Poland praises the increasing efficiency of the GoP's IP 
protection efforts and its increasing focus on combating 
internet piracy.  That new focus led to the October take-down 
of a massive, illegal file-sharing service receiving over two 
 
WARSAW 00001211  002.3 OF 003 
 
 
million hits per month.  Police arrested two men operating 
the service and seized the company's property.  The Ministry 
of Culture is also working to amend the Corporation Law to 
enable the GoP to capture more effectively corporate and 
business software piracy and peer-to-peer piracy cases. 
 
¶7.  (U)  The GoP's report describes a stepped-up training 
regime.  One hundred and forty one judges were professionally 
trained on IP law in 2009.  In a separate program, another 60 
judges will attend a new one-year post-graduate program in 
Intellectual and Industrial Property Law in 2010.  Polish 
police and the Internet Group have created a dedicated 
"Portal for Knowledge Management" and a specialized training 
guide - "Methodologies in Disclosing and Combating 
Intellectual Piracy on the Internet" - to support prosecutors 
and judges in internet piracy cases.  At the same time, the 
report documents increased criminal proceedings, convictions, 
and imprisonments.   Discontinued or terminated cases are 
down, and sentencing more often results in imprisonment. 
 
¶8. (U) A newly formed Team for Counterfeit Medical Products 
(CMP) is now integrated into the overall "Team for 
Counteracting Infringements of Copyright and Related Rights." 
 The CMP brings together representatives of the National 
Public Prosecutor, the Commander-in-Chief of the Police, the 
Chief of the Sanitary Inspectorate, the Head of the Customs 
Service, and the Health Ministry's Main Pharmaceutical 
Inspector to coordinate and direct efforts against 
counterfeit pharmaceuticals.  The CMP is focused on internet 
sales (the location of 80% of illegal sales), sex shops, 
gyms, and market places. The team has supported and directed 
enforcement actions, in conjunction with pharmaceutical and 
sanitary inspectors from local governments, leading to 
seizures of counterfeit erectile dysfunction drugs and 
dietary supplements. Criminal prosecutions are underway in 
the courts. 
 
¶9. (U)  The GoP has created a "Rights Protection Committee" 
for the protection of IP rights related to the Euro 2012 
soccer tournament, to be co-hosted in Poland.  The 
committee's aim is to better protect brands and trademarks 
related to the Euro Cup by establishing working relationships 
among national agencies and with authorities in hosting 
cities well ahead of the competition. 
 
¶10.  (U)  Although not documented in the report, the GoP has 
also initiated an innovative new program of public education. 
 All students attending university in Poland must now attend 
two semesters of classes on IPRs and patent/copyright 
protection. The curriculum was designed by the Polish Patent 
Office and requires a minimum mandatory attendance of 30 
hours of classtime per semester.  Classes are tailored to 
suit the differing disciplines of students' home faculties. 
 
¶11. (U)  More traditionally, the GoP's Patent Office has 
instituted a country-wide poster design competition to bring 
awareness of the value of IP.  The competition draws a very 
large number of entries, as well as the sponsorship and 
participation of pharmaceutical companies, government 
ministries, and the World Intellectual Property Organization. 
 In a similar vein, the GoP adapted for use in Poland a World 
Health Organization campaign against counterfeit drugs and is 
preparing a campaign to protect IP-related rights in the Euro 
2012 soccer tournament. 
 
What Still Needs Work 
--------------------- 
 
¶12. (U) Border Markets: Traffic in pirated goods continues at 
some markets on the German border.  Market operators are not 
yet contractually obliged to prevent the sale of pirated 
goods on their property, and rewriting contracts may take 
several years to achieve.  Nonetheless, law enforcement has 
engaged with market operators, improving enforcement and 
reducing volumes of pirated goods.  One apparel company 
representative with responsibility for both Poland and the 
Czech Republic stated that the problem with border markets in 
the Czech Republic "is three times worse than in Poland". 
 
¶13. (U) Destruction: Rights owners continue to complain about 
the complexity of the destruction of counterfeit goods seized 
by customs officers.  In order to destroy counterfeit copies 
of trademarked goods, the owner of the seized goods has to be 
 
WARSAW 00001211  003.3 OF 003 
 
 
found within a ten-day period and must cover the cost of the 
destruction.  The owner often cannot be found, leaving rights 
holders with the choice of paying out of pocket to destroy 
goods or leaving fake goods in a customs warehouses.  Other 
EU Member States, such as Germany, have adopted a simplified 
destruction policy that does not require the involvement of 
the owner of seized goods, allowing the goods to be destroyed 
right away. Polish rights holders want Poland to move to the 
simplified destruction policy. 
 
¶14. (SBU) Pharmaceuticals: The Ministry of Health continues 
to avoid meaningful consultation with pharmaceutical 
companies.  However, the Ministry has opened itself - 
modestly - to meeting with the representatives of U.S. 
pharmaceutical companies' local association - the LAWG. 
Deputy Minister Marek Twardowski met with the LAWG October 
28, the second time in two quarters, to discuss a new 
Reimbursement Act and regulations regarding prices and market 
access issues. 
FEINSTEIN