US embassy cable - 04ANKARA977

UNCLAS SECTION 01 OF 02 ANKARA 000977 
 
SIPDIS 
 
 
DEPT FOR EB/TPP/MTA/IPC - SWILSON/JURBAN AND EUR/SE 
DEPT PASS USTR FOR LERRION/BPECK 
DEPT PASS LIBRARY OF CONGRESS 
DEPT PASS USPTO FOR ELAINE WU 
USDOC FOR ITA/MAC/DDEFALCO 
 
 
SENSITIVE 
 
 
E.O. 12958: N/A 
TAGS: ETRD, KIPR, TU 
SUBJECT: Special 301 - Raise Turkey to Priority Watch 
List 
 
 
Ref:  (A) State 29549 (B) Ankara 608 and previous 
(C) Ankara 866 
 
 
1. (U) This cable contains action requests in para 10. 
 
 
Summary 
------- 
 
 
2. (SBU) Although there are signs that the GOT is 
preparing to improve enforcement through a ban on street 
sales, copyright and trademark piracy has remained 
persistently high in Turkey.  Turkey has also failed to 
provide data exclusivity protection, or to address 
policies which discriminate against or disadvantage 
foreign drug companies.  Embassy supports elevating 
Turkey from the Watch List to the Priority Watch List in 
the 2004 Special 301 Review, and urges Washington 
agencies to pursue sustained engagement with the GOT on 
intellectual property issues.  End Summary. 
 
 
3. (SBU) Post has lobbied the GOT repeatedly at senior 
levels over the past few years on lack of data 
exclusivity protection and other issues facing the 
pharmaceuticals sector, and on improving 
copyright/trademark enforcement.  Thus far, the GOT has 
not taken major steps on either set of problems. 
Raising Turkey to the Priority Watch List would send an 
appropriate signal of concern about gaps in Turkey's IPR 
regime. 
 
 
Pharmaceuticals 
--------------- 
 
 
4. (SBU) Citing concerns on data exclusivity, patent 
linkage and market access barriers which could cost 
member companies USD 600 million this year, the 
Pharmaceuticals Research and Manufacturers Association 
(PhRMA) recommended elevating Turkey to Priority Foreign 
Country status in its recent Special 301 submission. 
The GOT has said that it plans to take a decision on 
data exclusivity soon, but the Turkish proposal is 
likely to include a lead time of at least two or three 
years and might be limited to only a few years of 
protection initially (ref B).  Furthermore, the GOT has 
at times disputed the U.S. position that the WTO TRIPS 
Agreement Article 39.3 on protecting test data requires 
data exclusivity. 
 
 
5. (U) A February 14 GOT decree limits pharmaceuticals 
prices in Turkey to a maximum of 90 percent of the 
average of the lowest two prices prevailing in a group 
of five European countries.  While the measure does not 
appear to have an intellectual property angle, it may 
contain WTO-inconsistent provisions giving preference to 
local manufactures, does not set objective pricing 
criteria or remedy mechanisms for companies applying 
under the decree and worsens an already problematic 
policy environment for the industry. 
 
 
Copyright and Trademarks 
------------------------ 
 
 
6. (U) Both the International Intellectual Property 
Alliance (IIPA) and the International AntiCounterfeiting 
Coalition (IACC) recommend that Turkey remain on the 
Watch List based on continued high levels of piracy and 
counterfeiting, and call on the GOT to improve 
enforcement.  Embassy agrees that enforcement has been 
the key failing in Turkey's copyright/trademark regime. 
 
 
7. (U) The Culture Ministry has drafted legislation 
aimed at strengthening IPR protection.  The bill, which 
has been vetted by Parliament's Education Commission, 
would ban street sales of all copyright products and 
authorize all law enforcement units to make seizures 
(ref C and previous).  However, it would also reduce 
penalties for piracy, on the rationale that current 
penalties are perceived by the judicial system to be too 
severe and are thus not applied at all.  Although IIPA 
members have some reservations about the bill, Turkish 
artists have publicly expressed support for the bill. 
 
 
8. (U) The GOT intends to join the WIPO "Internet" 
treaties in the near future.  The treaties are currently 
under review at MFA's legal division.  While encouraging 
GOT officials to join the treaties, Embassy has pointed 
out to the Culture Ministry that implementing 
legislation will be necessary to address some gaps in 
current copyright law.  Culture Ministry officials are 
of the opinion that current Turkish law, along with the 
amendments currently under consideration, is sufficient 
to implement the treaties, but they are receptive to a 
dialogue with USG experts on this question. 
 
 
9. (U) A decree directing use of authorized software by 
GOT agencies was issued in 1999. 
 
 
Action Request 
-------------- 
 
 
10. (SBU) Over the last few years, Embassy has pressed 
the GOT on IPR concerns at senior levels without results 
on pharmaceuticals issues, and with only limited results 
in the copyright/trademark areas.  We support raising 
Turkey from the Watch List to the Priority Watch List in 
the 2004 Special 301 review.  With appropriate, 
sustained engagement with Washington participation on 
IPR issues, we believe this step could prod the GOT to 
action.  AUSTR Novelli's January letter to Foreign Trade 
Undersecretary Kayalar in January was helpful in raising 
the profile of this issue.  Embassy recommends that 
Washington agencies also consider dispatching an 
interagency IPR delegation to Ankara, and sending high- 
level correspondence, such as a joint letter from USTR 
Zoellick and Commerce Secretary Evans to State Minister 
Tuzmen. 
Edelman