US embassy cable - 05ROME3881

UNCLAS SECTION 01 OF 03 ROME 003881 
 
SIPDIS 
 
SENSITIVE 
 
STATE FOR EB/TPP/IPE (GREEN, URBAN) 
STATE PASS USTR (ESPINEL, SANFORD) 
UDOC PASS USPTO 
 
E.O. 12958: N/A 
TAGS: KIPR, ETRD, EINV, IT, ITALIAN POLITICS 
SUBJECT: ITALY JUDICIAL REFORM AND IPR, AN INITIAL 
ASSESSMENT 
 
REF: A. STATE 207519 
     B. ROME 3818 
     C. ROME 1569 
 
This cable is Sensitive But Unclassified.  Please 
protect accordingly, not for distribution outside the 
USG, not for Internet publication. 
 
1. (SBU) Summary:  GOI officials, including the 
Minister of Justice, have denied that the "ex- 
Cirielli" legislation to reform Italy's criminal 
justice system will have a major impact on IPR 
enforcement.  A recently adopted amendment limits the 
bill's impact on current cases and reduces the 
likelihood that changes in the statute of limitations 
would result in a massive dismissal of piracy cases, 
as originally alleged by the Recording Industry 
Association of America.  We expect Parliament to 
approve the bill by the end of the year but will 
continue to monitor its impact on IPR cases.  End 
Summary. 
 
Background 
---------- 
 
2. (U) The "ex-Cirielli" legislation (named for its 
original sponsor in the Chamber of Deputies, National 
Alliance Parliament member Edmondo Cirielli) 
represents an attempt by Prime Minister Silvio 
Berlusconi's administration to reform Italy's slow 
criminal justice system.  The law primarily: 
 
--Increases penalties for repeat offender (according 
to the bill's sponsors, 60-70 percent of crimes in 
Italy are committed by repeat offenders); 
 
--Stiffens penalties for mafia-related crimes; 
 
--Reduces judicial discretion in extending trials by 
restricting the statute of limitations (see below); 
and 
 
--Allows the elderly (70 and over) and pregnant women 
to serve criminal sentences at home. 
 
3. (SBU) While promoted by the GOI as a needed fix for 
Italy's glacial justice system, the bill had been 
trashed by the opposition because, not for the first 
time, Berlusconi's associates would have benefited from 
a parliamentary change in the criminal code.  For a 
time, the bill went by the nickname the "Save Previti 
Law" because, in its original form, it would have 
resulted in the dismissal of the conviction of Forza 
Italia MP Cesare Previti.  Previti, who previously 
served as Berlusconi's lawyer, was convicted of bribing 
a judge in the early 1990s and his case is still in the 
appeals process. 
 
Amendment Excludes Most Current Cases 
------------------------------------- 
 
4. (SBU) In response to these concerns and the 
prospect of a mass amnesty for current defendants, the 
Union of Christian and Center Democrats (UDC), a 
member of the governing center-right coalition, 
introduced an amendment to exempt most cases already 
under trial or in the appeals process from the new statue 
of limitations.  The amendment has made the bill less 
controversial.  "Ex-Cirielli" passed the Chamber of 
Deputies November 9 and is now awaiting a final vote 
by the Italian Senate (which had already passed an 
earlier version). 
 
Massive Dismissal of Current IPR Cases Unlikely 
--------------------------------------------- -- 
 
5. (SBU) Even with the UDC amendment, copyright 
industry groups--most importantly the Recording 
Industry Association of American (RIAA) and its 
Italian sister-organization, the Federazione Industria 
Musicale Italiana (FIMI)--are alarmed by the proposed 
reduction of the statute of limitations.  If the bill 
becomes law as expected, the statute of limitations in 
a case will not be able to exceed the maximum sentence 
for the crime (i.e. the trial and appeals for a crime 
punishable by up to 10 years would need to be 
completed within 10 years).  Of more importance to the 
copyright industries, however, is the minimum statute 
of limitations, which applies to all "minor" crimes, 
such as IPR theft, where the maximum sentence is 3-4 
years.  Ex-Cirielli would lower the minimum statute of 
limitation from seven-and-a-half to six years. 
 
6. (SBU) Originally RIAA/FIMI predicted that the bill 
would result in a massive dismissal of 90 percent of 
music piracy cases currently before the court (382 of 
the 471 cases the music industry was pursuing in Italy 
as of 2004).  The UDC amendment significantly reduces 
the number of current cases that will be dismissed 
when ex-Cirielli enters into force.  The GOI claims 
that, with the UDC amendment, any impact on IPR would 
be minor (see paragraph 8 below). 
 
But Future Prosecutions May Dip 
------------------------------- 
 
7. (SBU) Italy-based copyright associations are now 
emphasizing the legislation's potential negative 
impact on future IPR prosecutions.  According to a 
joint statement released by FIMI, the Business 
Software Alliance (BSA), and FAPAV (an Italian movie 
industry group that represents American studios here), 
the new six-year statute of limitations for minor crimes 
would discourage prosecutors from pursuing IPR cases. 
The average IPR case currently takes six-to-nine years to 
complete, according to the groups, and even under the 
current seven-and-a-half-year limit the statute of 
limitations on many IPR cases expires before the final 
appeal is finished.  The associations argue that the 
six year statute of limitations would increase the 
likelihood that defense attorneys could simply run out 
the clock.  Prosecutors,  knowing the difficulties of 
completing an IPR case within six years, may simply not 
bother to bring charges. 
 
GOI: Impact on IPR Minimal 
-------------------------- 
 
8. (SBU) GOI officials have generally denied industry 
claims that ex-Cirielli will severely impact IPR 
enforcement.  Ambassador Spogli raised this issue in a 
November 15 meeting with Justice Minister Roberto 
Castelli (ref B).  Castelli said he doubted the 
legislation would have a serious effect on IPR.  He 
said the ex-Cirielli bill would only affect pending 
criminal cases with a possible sentence greater than 
four years.  IPR violations, he noted, only carry a 
maximum sentence of four years.  (Comment: It is true 
that the greatest impact of "ex-Cirielli" will be on 
more serious criminal cases.  We believe Castelli's 
skepticism that the law will harm IPR enforcement is 
because there will be relatively little change in the 
minimum statute of limitations, from seven-and-a-half 
to six years.  End Comment.)   In fact, Castelli said 
only seven percent of all pending criminal cases would 
be affected by the ex-Cirielli legislation.  Castelli 
promised to perform a study on the possible impact of 
the legislation on IPR cases and report back to the 
Ambassador. Embassy will report findings septel. 
 
9. (SBU) Poloff met November 22 with Forza Italia 
Deputy Gabriella Carlucci and mentioned the concerns 
of U.S. IP industries.  She said the UDC amendment 
should address most of their worries.  She predicted 
the legislation would pass the Senate the week of 
November 28 without any changes.  If the industries 
still have a problem with the modified ex-Cirielli 
bill, she suggested introducing an "Ordine del Giorno" 
(somewhat analogous to a unanimous consent agreement) 
expressing the will of the Chamber to look into fixing 
the problem at some other date. 
 
10. (SBU) Separately, Econoffs raised this issue with 
Massimo Leggeri, MFA Deputy Director General for 
Multilateral Economic Affairs and Ludovica Agro, 
Director of the Italian Patent and Trademark Office. 
While saying he was not familiar with the details of 
ex-Cirielli, Leggeri reiterated Castelli's prediction 
that the legislation will not have much impact on IPR. 
Leggeri stated that Italy would not pass a law that 
violated Italy's commitments under TRIPS.  Agro, 
meanwhile, stated that she shares the industry concerns 
and would further research the effect of the ex-Cirielli 
reforms on IPR and possible TRIPS implications. 
 
Comment: The Sky Is Not Falling 
------------------------------- 
 
11. (SBU) Comment: The Embassy will continue to press 
Castelli's office for its promised report of the IPR 
ramifications of these reforms.  We also will deliver 
ref A points at as many opportunities as we can. 
With the UDC amendment, however, it appears that 
RIAA's initial claim that 90 percent of current IPR 
cases would be thrown out of court is no longer valid. 
 
12. (SBU) Comment continued.  The Embassy shares the 
industry's concerns that, in the future, ex-Cirielli 
may dampen prosecutor's enthusiasm to invest resources 
in IPR cases.  At this point, however, this argument 
is hypothetical and unlikely to sway GOI decision 
makers.  A senior Senate staffer tells us that 
toughening sentences for repeat offenders will 
likely lead to better IPR enforcement (an argument 
BSA, FIMI, and FAPAV strongly reject).  Another 
contact, a senior officer in the Ministry of 
Interior's anti-mafia task force, likewise says the 
anti-mafia provisions in the reforms (much commercial- 
scale piracy is controlled by the Naples-based Camorra 
organization) will similarly allow Italian prosecutors 
to raise the stakes against pirates and 
counterfeiters. 
 
Justice Delayed Is Justice Denied 
--------------------------------- 
 
13. (SBU) Comment continued: USG approaches on ex- 
Cirielli should remain limited to the narrow issues of 
IPR and foreign bribery cases, rather than opposition 
to the entire legislation.  Berlusconi's alleged 
personal interests aside, Italy has good reason to 
want to reform its dysfunctional criminal justice 
system.  Criminal trials that stretch beyond two 
decades (not an uncommon occurrence here) undermine 
the rule of law.  As industry groups readily admit, 
the system as it stands does not result in significant 
convictions or punishment for IPR crimes in Italy. 
The key factor, regardless of these reforms, is the 
willingness of Italian judges to hand down guilty 
sentences and meaningful prison time for 
counterfeiting and piracy.  Because of this, the 
Embassy continues to focus its IPR outreach efforts on 
Italian judges (ref C). 
SPOGLI