US embassy cable - 05SANTODOMINGO970

UNCLAS SECTION 01 OF 02 SANTO DOMINGO 000970 
 
SIPDIS 
 
USDOC PASS USPTO; STATE FOR EB - WILSON, ADAMO; WHITE HOUSE 
PASS USTR FOR MALITO, PECK, SOUDER, VARGO 
 
E.O. 12958: N/A 
TAGS: KIPR, ETRD, EINV, DR 
SUBJECT: DOMINICAN REPUBLIC YEAR 2005 SPECIAL 301 REVIEW: 
EMBASSY INPUT 
 
REF: SECSTATE 24592 
 
1. (SBU) Summary.  Embassy recommends maintaining the 
Dominican Republic on the Special 301 Watchlist.  IPR 
infringement problems remain at levels similar to those of 
last year, with some call for optimism in the area of 
television broadcast piracy, a long-term problem.  A 
broadcast piracy court case filed in 2003 against a large 
television station was finally decided in November with a 
ruling against the station.  A CAFTA-required report on 
broadcast piracy due in October was provided, albeit late. 
The Ministry of Industry and Commerce has now assumed 
responsibility for the quarterly report and assured the 
Embassy that it will be on time and complete in the future. 
Pharmaceutical counterfeiting continues.  Dominican 
pharmaceutical manufacturers were unsuccessful in requests to 
the national congress to reduce penalties for infringement of 
patents and trademarks but they continue to lobby. End 
Summary. 
 
2. (SBU) While the Dominican Republic has strong legislation 
to protect copyrights and has improved the regulatory 
framework for patent protection, United States industry 
representatives continue to cite lack of IPR enforcement as a 
major concern.  The government has taken some steps to 
prosecute violators, but it has provided insufficient 
training and resources for enforcement.  The judicial process 
moves slowly.  While the Dominican Republic has ratified the 
WIPO Copyright Treaty and the WIPO Performances and 
Phonograms Treaty, as of this writing, it has not deposited 
instruments of ratification for these two treaties with WIPO. 
 
3. (U) Obligations under the free trade agreement (CAFTA) 
signed on August 5, 2004, would require strengthening the 
Dominican IPR protection regime.  Not yet ratified either by 
the United States or the Dominican Republic, the CAFTA 
requires measures to criminalize end-user piracy, providing a 
stronger deterrent against piracy and counterfeiting.  The 
CAFTA will require the Dominican Republic to authorize the 
seizure, forfeiture, and destruction of counterfeit and 
pirated goods and the equipment used to produce them.  The 
CAFTA text also mandates both statutory and actual damages 
for copyright infringement and trademark piracy.  This will 
serve as a deterrent against piracy, and will ensure that 
monetary damages can be awarded even when it is difficult to 
assign a monetary value to the violation. 
 
Television Broadcast Piracy 
----------------------------- 
4. (SBU) Dominican trade negotiations with the United States 
on inclusion in the CAFTA included an agreement by exchange 
of letters signed by the Secretary of Industry and Commerce 
confirming that the Dominican Republic will "take all 
necessary steps to halt television broadcasting piracy by 
licensed broadcasting stations and to provide a deterrent to 
future infringements."  The agreement committed the 
Dominicans to provide the United States with a quarterly 
written report describing progress in stopping television 
broadcasting piracy, including criminal, administrative and 
civil investigations and actions taken.  The due date for the 
first report was October 5, sixty days after CAFTA was 
signed.  In December, the National Copyright Office (ONDA) 
provided the U.S. Embassy a copy of a late internal report 
that failed to address the broadcast piracy issue.  The 
Ministry of Industry and Commerce submitted a report to the 
Embassy February l, including mention of the fact that in 
November the Santo Domingo District Attorney's Office 
obtained a court order to monitor and document broadcasts by 
Telemicro and Canal del Sol, two large-scale offenders.  The 
information collected from monitoring should be of use in 
future prosecutions. 
 
5. (SBU) An important item not mentioned in the Industry and 
Commerce report is the October 22, 2004, court decision 
against Channel 5/Telemicro for broadcast piracy.  The court 
ordered Telemicro to pay a total of RD Pesos 415,000 (about 
US$14,000) to Twentieth Century Fox, Tristar Pictures, 
Columbia Pictures and Warner Brothers.  The court sentenced 
Telemicro,s manager to three months in prison.  The judge 
did not suspend the station's operations.  MPAA,s attorney, 
who helped prosecute the Telemicro case, will soon file a new 
similar case against Telemicro and two other Dominican 
stations.  The positive 2004 outcome against Telemicro gives 
some indication that the next case against illegal 
broadcasters may also be successful. 
 
Patents, Trademarks and Pharmaceuticals 
------------------------------------------ 
6. (SBU) From mid-2004, the United States Government 
repeatedly expressed its concern about draft legislation 
advocated by domestic pharmaceutical manufacturers seeking to 
lower fines sharply and to eliminate prison penalties for 
infringement of both patents and trademarks.  The leadership 
of the House of Representatives resisted pressure and 
consulted with the Embassy on the contents of the draft.  In 
early 2005, a local patent attorney provided the Embassy with 
a copy of modified draft legislation not yet submitted to 
Congress.  The new draft legislation is marginally better in 
that it allows for prison penalties in the case of trademark 
violations.  No prison sentences would be specified for 
patent violators, however, and they might avoid the prospect 
of appearing in court on criminal charges.  This is because a 
new criminal procedures code enacted in 2004 provides that in 
cases of a crime for which no prison sentence is specified by 
statute, the accused can pay a fine in advance to avoid 
appearing in court.  The draft legislation does not address 
the question of civil actions against patent violators. 
 
WIPO Treaties and Other Issues 
------------------------------------------ 
7. (U) The United States government has continued to urge the 
Dominican Republic to bring the Industrial Property Law fully 
in line with its TRIPS Agreement obligations.  Existing law 
and regulations have not yet been applied in legal 
proceedings, so the effectiveness of those measures has not 
been tested.  The CAFTA commitments will require that test 
data and trade secrets submitted to the Dominican government 
for the purpose of product approval be protected against 
unfair commercial use for a period of five years for 
pharmaceuticals and ten years for agricultural chemicals. 
 
8. (U) Optical Media Piracy: ONDA reported that between 
October and January it confiscated about 100,000 pirated 
versions of copyright protected works, the majority music CDs 
(83,117) and DVD movies (7,351). 
 
9. (U) Government Use/Procurement of Software: ONDA has no 
program to monitor government use of software, although CAFTA 
commitments will require that such monitoring take place. 
 
Summary and Recommendation 
----------------------------------------- 
10. (SBU) The Dominican Republic has not shown significant 
improvements in IPR protection during the past year, but the 
situation has not deteriorated.  The positive decision in the 
October broadcast piracy case against television station 
Telemicro is noteworthy because it suggests that Dominican 
broadcasters are not completely immune to prosecution, as 
they once appeared to be.  The President has repeatedly 
stated publicly that ratification of CAFTA is a priority; 
ratification will formally strengthen the commitment of the 
government to protect intellectual property.  We recommend 
maintaining the Dominican Republic on the Special 301 
Watchlist. 
HERTELL