US embassy cable - 03ANKARA2367

UNCLAS SECTION 01 OF 04 ANKARA 002367 
 
SIPDIS 
 
 
TREASURY FOR OASIA 
STATE FOR EB/TPP/MTA/IPC - WILSON AND EUR/SE 
DEPT PASS USTR FOR DBIRDSEY/KALVAREZ, PATENT AND 
TRADEMARK OFFICE FOR URBAN, LIBRARY OF CONGRESS FOR TEPP 
USDOC FOR ITA/MAC/DDEFALCO 
 
 
SENSITIVE 
 
 
E.O. 12958: N/A 
TAGS: ETRD, KIPR, TU 
SUBJECT:  GOT's Views on Special 301 Review of 
Intellectual Property Protection 
 
 
1. (SBU) On April 10, Oya Karakas, Head of Department in 
the MFA General Directorate of Multilateral Economic 
Affairs, sent Embassy the following note on intellectual 
property protection in Turkey.  The note contends that 
data exclusivity protection for pharmaceuticals is not 
required by the TRIPS Agreement.  Embassy recommends 
that Washington agencies rebut Turkey's position on this 
by providing talking points for Embassy and/or 
transmitting a letter on this subject from a senior U.S. 
official.  We also wonder if it might be possible to 
generate a letter from the WTO Secretariat confirming 
that TRIPS does require data exclusivity.  Once the 
regional crisis is over, Embassy suggests Washington 
agencies consider sending a representative to Ankara to 
engage the Turks on IPR issues, and on data exclusivity 
in particular.  We note that the EU has recently stepped 
up its campaign to persuade Ankara on this issue. 
 
 
2. (SBU) Begin Text MFA Note: 
 
 
07.04.2003 
CEGY-I 
 
 
TURKEY'S VIEWS ON "THE SPECIAL 301 REVIEW" 
 
 
Since we consider protection of intellectual property as 
an important tool to encourage and promote human 
creativity and productivity, we aim at meeting 
international standards and fulfilling our commitments 
stemming from international agreements in the area of 
intellectual property protection. 
 
 
In this context, we have already adopted relevant 
international agreements in order to create an 
environment where a certain level of intellectual 
property protection is ensured. However, a transition 
period is required before full implementation and 
enforcement of new legislation. The process to impose 
new trade rules takes a certain time even in developed 
economies. As a developing economy Turkey has so far 
achieved a significant progress despite risks of 
unemployment and short-term losses of income. 
 
 
So far, we have welcomed criticisms brought forward by 
our trade partners in the framework of our international 
commitments, such as those voiced at the World Trade 
Organization TRIPS Council during the review of our 
legislation, which was successfully concluded. In this 
connection, we attach importance to comments of the 
United States Government and its "Special 301 Review". 
 
 
In the context of "Special 301 Review", we have had a 
satisfactory level of cooperation with the US Government 
up to now and we expect this to continue. We are also 
pleased with the interest of the US companies and the 
concerned specialised associations in the implementation 
and enforcement of intellectual property protection in 
Turkey. 
 
 
The points, raised by these associations, namely IIPA, 
IACC and PhRMA, and the comments mentioned in their 
submissions, have received Turkish Government's due 
consideration and our relevant authorities have studied 
them in detail with respect to their technical aspects. 
 
 
Regarding the comments of IIPA and IACC, we have noted 
the mentioned problems of implementation and 
enforcement. Our efforts to improve the capacity and 
expertise of law enforcement authorities in this field 
are further increased. In this connection, we should 
also take into account the economic situation in the 
aftermath of a severe financial crisis. Since, immediate 
implications of enforcement of intellectual property 
protection are unemployment and loss of income for some 
segments of society; in some cases this issue becomes 
very sensitive. As we all know, accommodation of 
intellectual property protection and development issues 
is a widespread matter of debate in various 
international fora. We should also bear in mind that 
some alleged copyright violations concern educational 
materials and this requires a special attention. 
Nevertheless, we appreciate the relatively balanced 
approach of these two associations and again we assure 
that these comments will receive our due consideration 
and appropriate measures will be taken accordingly. 
 
 
In the reports of the IIPA and IACC, there are certain 
remarks concerning the court proceedings and the 
sentences, which claim that the courts are not 
sufficiently expedient, the procedures are extremely 
burdensome for the right holders, the sentences are not 
deterrent and there are delays and procedural hurdles. 
In general these observations do not reflect the whole 
picture. The Turkish legislation and the relevant 
regulations, concerning the intellectual property 
protection and its enforcement are in conformity with 
the international agreements, which both Turkey and the 
US are party of. The competent judicial authorities are 
implementing this legislation accordingly. We are aware 
of some practical shortcomings about the implementation; 
nevertheless the Ministry of Justice is taking measures 
to eradicate these problems. 
 
 
Some of the complaints are stemming from the fact that 
the Turkish legal system has characteristics different 
from the US system. Therefore, American companies, which 
are not accurately informed about the procedural details 
of legal proceedings, are sometimes facing some 
unexpected developments, which are interpreted as delays 
and burdens. If these problems are brought to the 
attention of relevant authorities, further clarification 
can be made in order. 
 
 
As for the criticisms regarding the administrative 
measures, relevant instructions given to the 
administrative authorities. In this context, we should 
bear in mind the dynamic nature of the intellectual 
property rights to be protected and the advantages of 
the counterfeiters who make use of modern technology. 
However, the Turkish Government is taking measures to 
cope with the piracy to ensure proper enforcement and 
enhance the existing infrastructure. On the other hand, 
we also see cases where American companies are not well 
aware of the administrative procedures and details and 
their complaints are not justified in all cases. Again, 
if the problems faced are brought to the attention of 
relevant authorities, further clarification can be made 
in order. 
 
 
In this connection, we also wish to emphasize the fact 
that positive developments are not properly reflected in 
these reports. The implementation and enforcement of 
intellectual property rights has been improved in the 
course of the last year and there is growing level of 
awareness in this issue. 
 
 
As for the comments of PhRMA, needless to say health 
issues have a special dimension in the context of 
international trade regulations. Public health is such 
an issue that it cannot be regulated only by trade 
concerns. Special considerations of governments in 
health and social policies should be given due respect. 
As we know, one of the most heated debates of the WTO 
Doha Development Agenda Negotiations is on this very 
issue and there is a growing global concern on the 
relationship between public health and intellectual 
property protection. 
 
 
Compared with other social policy issues, health 
policies have a particular significance, since in some 
cases it is a question of life or death. It is not a 
surprise that health issues have a priority among others 
for governments and they have particular connections 
with economic and social policies. Therefore, in the 
context of international trade, they require flexibility 
more than other trade issues. 
 
 
The comments of PhRMA, which seem to have a more bitter 
tone, have also received our due consideration and 
appropriate measures are taken accordingly. 
 
 
Regarding these comments we wish to present an overview 
of the current situation of intellectual property rights 
and their implementation, concerning pharmaceutical 
products. 
 
 
The Agreement on Trade-Related Aspects of Intellectual 
Property Rights (the TRIPS Agreement) is the most 
comprehensive international instrument ever negotiated 
on intellectual property rights. TRIPS Agreement 
established minimum universal standards concerning 
patents and undisclosed information (trade secrets) as 
well as copyrights, trademarks, industrial designs, 
geographical indications and integrated circuits. Since 
Turkey is a member of WTO and thus, a signatory to TRIPS 
Agreement, our legislation on patents and protection of 
undisclosed data is in compliance with the TRIPS 
Agreement. 
 
 
Patents 
Although, Article 65 of the TRIPS Agreement gave Turkey 
the right to delay granting pharmaceutical process and 
products patents until 1 January 2000 and 1 January 
2005, respectively, the Patent Decree No 551 came into 
force in 1995. The new legislation was prepared in the 
light of the TRIPS Agreement and the European Patent 
Convention (EPC). Turkey began to file applications in 
1995 and patents are granted since 1 January 1999. 
 
 
Patentability criteria, protection term of 20 years, 
compulsory license provisions of the Turkish legislation 
are all compatible with the TRIPS Agreement. 
 
 
A careful evaluation of the relevant Turkish legislation 
clearly shows that Turkey provides higher patent 
protection standards for pharmaceuticals than required 
by TRIPS Agreement. The review of Turkish legislation on 
intellectual property by TRIPS Council also proved the 
conformity of the legislation in Turkey with the TRIPS 
standards. 
 
 
Data Protection 
 
 
Data protection is an obligation foreseen by Article 39 
of the TRIPS Agreement. Article 39 of the TRIPS 
Agreement requires Members to protect undisclosed 
information submitted to governments or governmental 
agencies, as a condition of approving the marketing of 
pharmaceutical or of agricultural chemical products 
which utilise new chemical entities, against unfair 
commercial use. Turkey also fulfilled its commitments on 
data protection (protection of undisclosed data against 
unfair commercial use) by amending its legislation. 
 
 
There are five specific provisions of Turkish 
legislation which should be mentioned: Firstly, Contract 
Law, No. 818 brings obligation on the workers not to 
divulge business secrets of the employee.  They may also 
be prohibited from dealing with competing works.  The 
remedy for the infringement is compensation of the 
damages. Secondly, the Commercial Code provides that 
seducing the employees, agents etc. into divulging 
trading secrets of their employer, taking an illicit 
advantage from trade secrets obtained incompatible with 
good faith, or divulging them to others, constitute 
unfair competition.  The Code provides civil 
(compensation for damages), and criminal sanctions 
(Imprisonment and/or fire). Thirdly, the provisions of 
the Patent Decree No. 551 are in conformity with Article 
39.3 of the TRIPS Agreement concerning the marketing 
procedures. Within this framework the Patent Decree No. 
551 obliges public authorities (who take application for 
marketing permission for pharmaceutical, agrochemicals 
or veterinary products) not to disclose information and 
test results, and keep them secret; and fourthly the 
Regulation for Pharmaceutical Products which is in force 
since 1996, brings the same responsibility to the 
Ministry of Health to protect secrecy of information and 
test results disclosed by the applicant during marketing 
approval for pharmaceutical products. Lastly, the Civil 
Servants Act No 657 supports the implementation of last 
two pieces of legislation by bringing responsibility on 
civil servants employed in the Ministries and public 
institutions not to divulge secret business information 
related to their services.  Infringing the act of those 
two pieces of legislation brings responsibility of the 
public administration in accordance with Administrative 
Law Principles and legislation prepared within the 
framework of Article 125 of the Turkish Constitution 
(Article makes available to bring action against all 
acts and transactions of the public administrations). 
In such cases the remedy is compensation apart from the 
disciplinary and criminal responsibility of the civil 
servant. 
 
 
Data/Marketing Exclusivity 
 
 
Data exclusivity and marketing exclusivity are not 
covered by Turkish legislation, as it is the case in the 
EU and the US. Only patented product is protected by the 
Patent Law until the due date of the patent expires. 
 
 
The data exclusivity is a provision of Article 4 of 
Directive 65/65/EEC in EU and 21 U.S.C. Sec. 355 
(c)(3)(D)(ii) in USA. The term "protection of 
undisclosed information" in Article 39 of the TRIPS 
Agreement is not the same as the "data exclusivity" 
concept in the EU and USA, and it is misleading to treat 
them as being synonymous. 
 
 
Article 39 of the TRIPS Agreement only requires 
protection of undisclosed information against unfair 
commercial use. Data exclusivity is a TRIPS-plus 
provision. Article 1 of TRIPS Agreement states that 
"Members may, but shall not be obliged to, implement 
their law more extensive protection than required by 
this Agreement." Therefore, Turkey should not be imposed 
to provide data exclusivity immediately. 
 
 
Considering the competitiveness of domestic 
pharmaceutical industry, it shall adopt its legislation 
to include data exclusivity provision after a 
transitional period through negotiations for full 
membership to EU. 
 
 
In return of our good will on the issue of intellectual 
property protection, we expect the same positive and 
reasonable attitude from the US Government throughout 
the exchange of views on this issue prior to the 
finalization of the "Special 301 Review". 
 
 
End Text. 
Pearson