Wikileaks - CMLXV

Sunday, 04 September, Year 3 d.Tr. | Author: Mircea Popescu






REF: STATE 09475

1. (SBU) Post recommends that Romania remain on the Special 301 Watch List for 2008. Although industry contacts report that there has been a decline in physical optical disc piracy, the growth of internet piracy - both peer-to-peer file sharing and business-to-consumer piracy - is a worrisome trend. Romania has an adequate legal framework for IPR protection, but enforcement efforts remain ineffective and a low priority for judges, prosecutors, and police. There has been increased cooperation between enforcement authorities and industry representatives, but post has yet to witness consistent prosecutorial results. Too many IPR cases are dismissed by prosecutors for a perceived "lack of social harm." End Summary.

IPR Progress
2. (SBU) Following is a list of positive developments in the field of IPR enforcement since last year's Special 301 review:

-- The number of dedicated IPR prosecutors at the General Prosecutor's Office (GPO) increased from four to nine. The number of designated prosecutors at the tribunal and appellate court levels has increased to 102.

-- The EU "Phare" Program was established to strengthen the institutional capacity of IPR protection. In 2007, the Government of Romania (GOR) requested technical assistance to establish an online inter-institutional system, professional training courses, media campaigns, and a study to establish a methodology to estimate piracy rates. The system was initiated by Danish technical experts in 2007 and is scheduled to become operational in 2008.

-- There has been a steady decrease in the number of pirated optical discs sold by street vendors. This is due both to the fact that street vendors are easy targets for the police, and because market changes have made it easier and cheaper for end-users to acquire products via the internet.

-- In 2007, post sponsored a senior expert on patents, a senior expert on trademarks, an IPR judge, and a chief IPR prosecutor to attend training at the U.S. Patent and Trademark Office's IPR Enforcement Academy in Alexandria, Virginia. During the first quarter of 2008, post will send another chief IPR prosecutor and the President of the Civil and IPR Section of the Supreme Court for training. The Danish Patent and Trademark Office, the U.K. Intellectual Property Office, and private industry sources have also provided training opportunities for Romanian judges, prosecutors, police, border officials, and industrial property rights experts.

-- Post organized and hosted several well-received and well-attended IPR events in 2007, including a U.S.-EU IPR Roundtable, with key addresses by Department of Commerce Deputy Assistant Secretary Paul Dyck and a chief representative of the U.K. Patent Office in London. Post also sponsored a three-day Cyber-Crime conference; hosted an IPR Border Measures workshop with the American Chamber of Commerce; and participated in the GPO's IPR Seminar at the National Institute of Magistrates (NIM), with econoff responsible for the IPR portfolio giving the keynote address.

-- Romania adopted the Singapore Treaty on Trademarks of the World Intellectual Property Organization (WIPO) on August 22, 2007.

-- Legal reform continued in 2007 with further amendments to the basic Patent Law of 1991 and the Industrial Design Protection Law of 1992 to make them fully consistent with EC directives. Also, for the first time, Romania enacted legal regulation of utility models to protect the rights of inventors (Utility Model Number 350/2007).

Obstacles in IPR Enforcement
3. (SBU) Despite these positive developments, post's assessment is that the GOR still does not effectively enforce IPR legislation. Successful prosecution of IPR crimes, leading to conviction, remains the weakest link. Romanian prosecutors are magistrates, and their professional evaluations are based on obtaining successful verdicts from the courts. IPR cases are technically complex, time consuming, and frequently dismissed by judges based on a "lack of social harm."

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Therefore, prosecutors often try to maintain positive evaluations by imposing administrative sanctions, only risking a push for criminal sanctions when the "social harm" is incontrovertible and the evidence is overwhelming.

4. (U) Internet piracy was the fastest-growing IPR infringement phenomenon in 2007. Although the legal framework is in place to combat internet piracy, enforcement lags far behind. Internet piracy is exacerbated by the fact that many Internet Service Providers (ISPs) actively market their downloading speeds for movies, music, and games, and have been hesitant to cooperate with enforcement authorities. While the market for physical pirated optical discs has diminished, both at the retail (street) level and through website sales, internet piracy and peer-to-peer (P2P) file sharing grew significantly in 2007 in the wake of wider access to high-speed broadband internet services. Additionally, many internet cafes offer customers both a venue to download and burn copyrighted software and to play and use unlicensed products, such as games.

5. (U) Despite significant improvements, there are still substantial delays in criminal investigations. The Copyright Office (ORDA), a quasi-independent government agency funded through the Ministry of Culture, often required several months - and in some cases, more than a year - to deliver technical assessments of seized goods to the police. ORDA still administers an obligatory system of placing hologram stickers on music and video products, unpopular with the optical disc industries for these media due the costs incurred and doubts about its efficacy. ORDA reported a 37 percent increase in the number of items subject to technical inspection (year over year) while selling 86 percent more holograms to phonogram copyright holders and almost three times more holograms to video copyright holders.

6. (U) One of the major concerns, first raised by the Business Software Alliance (BSA), is the current legal requirement for investigators to have a computer search warrant issued in advance of a check of the licensing status of installed software. Such a warrant may only be issued by a judge and only if a criminal investigation has been officially initiated. However, a criminal investigation may only be initiated upon verification of sufficient evidence. In practice, this has been a Catch-22 and it has been difficult to meet the evidentiary threshold required to launch an investigation.

Enforcement Statistics (2007)
7. (U) In 2007, Romania concluded 5,492 IPR-related cases, down 27.8 percent year over year. Only 162 of these cases ended with an indictment, an increase of 6.6 percent compared to the previous year. The majority of concluded cases (51.9 percent) only resulted in administrative fines short of trial due to a determination that the crime lacked social harm, a minor decrease from the year before (54.9 percent). 2.3 percent of the cases were dismissed because the charges were dropped or the case was settled out of court, down from 18 percent in 2006. In 2007, there were 122 final court dispositions (up from 54 in 2006): 43 cases ended in fines (up from 21); 38 ended with a suspended prison sentence (up from 21); the criminal court reassigned 24 cases to the civil court (nine in 2006); and 17 cases ended in acquittal (an increase from five in 2006).

8. (U) In 2007, the State Office for Inventions and Trademarks (OSIM), a GOR institution with no enforcement duties, provided expert, technical industrial property rights assessments in 495 police, border authority, prosecutors' offices, and customs cases, up 70 percent year over year. OSIM reported 458 industrial property rights cases to the courts in 2007, a 52.7 percent increase from the previous year. Out of these, 410 cases involved trademarks, 35 involved industrial design, and 13 involved patents. 368 cases were cancellation requests (trademarks, patents, industrial design), 60 were requests for forfeiture of rights (trademarks), and 30 were lawsuits regarding the prohibition of imports and the marketing of suspected counterfeit products.

9. (U) Customs officials reported seizing approximately 20.2 million pieces of counterfeited goods in 2007, up substantially from 9.6 million pieces in 2006 and 3.6 million in 2005. Footwear, clothing, cell phone accessories, cosmetics and toiletries, cigarettes, leather goods, and sunglasses accounted for most of the seizures.

The View from Industry Representatives
10. (SBU) Private industry representatives tell post that Romania

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has adequate laws in place to protect intellectual property rights. The problem lies with enforcement: they would like to see more prosecutions, stiffer deterrent penalties, and fewer dismissals based on "lack of social harm." Court proceedings are still very lengthy, and often require further in-depth investigations of piracy channels. Industry representatives noted a sharp increase in P2P downloading, such as with the BitTorrent or the less popular eDonkey protocol, and they expect this trend to continue as broadband internet penetration increases. (Note: Although the broadband penetration rate is the second lowest in the EU at an estimated 10.5 percent, broadband connectivity increased over 90 percent in 2007. End note.) Industry representatives stressed the need for Romanian enforcement agencies to stay abreast of technological advances in piracy. The industry says that collaboration with the police has been relatively good and improving, but they report no improvement in their cooperation with prosecutors. Although private industries noted incremental progress in ORDA's response to court requests for IPR forensic analyses, the average response time remains unsatisfactory.

11. (SBU) BSA estimates that the piracy rate for business software likely declined slightly in 2007, down from an estimated 69 percent piracy rate in 2006. End-user piracy (corporate and household) and illegal distribution (hard disk loading and distribution of home-burned optical discs) has had the most damaging impact on the local market. No industrial-scale optical disc piracy has been reported yet; all copying is done by home burning - often in home-based "burning studios." BSA's relationship with the local enforcement authorities has significantly improved since the less reliable ORDA was stripped of enforcement duties in 2005, with sole enforcement responsibility remaining with the police and prosecutors. In 2007, authorities conducted over 680 raids of end-users and re-sellers, up from 600 cases in 2006. BSA reported 61 total convictions in 2007, with two convictions of illegal re-sellers of business software leading to deterrent sentences, including a sentence for five years, seven months' imprisonment without the possibility of suspension or parole.

12. (SBU) An attorney who specializes in entertainment software IPR enforcement and who represents two major gaming companies reported that the bulk of IPR violations involved unauthorized use of games in internet cafes and retail sales of burned pirated products, both of which increased slightly in 2007. Pirated products are largely produced domestically; only one case was identified as having been imported from replication factories in the Republic of Moldova or Ukraine. The attorney said she is unaware of any seizures or detentions of entertainment software products by Romanian customs authorities in 2007. Cooperation with local police remained solid in 2007, with the attorney praising the initiative of the police in pursuing IPR infringers. There was no change in the number of cases dismissed for lacking social harm from the year before; however, in a positive development, prosecutors' decisions are more commonly communicated to the copyright holders.

13. (U) Problems with delays, weak sentencing, and difficulties in collecting court-ordered damages remain, according to the entertainment industry. It takes the police a minimum of three to four months, and sometimes up to ten months, to transfer cases to the court. The average amount of time needed to obtain a criminal court decision is between one and three years, with appeals taking even longer. Romanian courts are still reluctant to impose deterrent penalties. They typically impose, in descending order, suspended jail sentences (from one to two years), criminal fines (from USD 150 to USD 4,200) or administrative fines (same range as above). The only sentence in 2007 for imprisonment (one year, seven months) without suspension involved a case of a recidivist copyright infringer with six other open criminal complaints. In a majority of 2007 convictions, the court awarded the damages claimed by the plaintiff. However, defendants generally did not comply with the court order to pay the damages unless the rights holder initiated further legal proceedings.

14. (SBU) The Romanian Organization against Copyright Theft (RO-ACT) represented the Motion Picture Association (MPA) on IPR matters until MPA Brussels decided in late 2007 to discontinue financing local associations in Romania, Slovakia, Bulgaria, Cyprus, and Lebanon. The RO-ACT representative noted that until that time, he witnessed significant growth in internet piracy due to the wider availability of broadband internet services and falling prices from regular Internet Service Providers (ISPs) and small neighborhood companies using Local Area Networks (LANs). In larger cities, significant numbers of video files are shared over these LANs, which often have much lower service fees than traditional ISPs. BitTorrent and eDonkey P2P sites represent another type of emerging piracy. Individuals and small companies, many of which also offer

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discount internet access, maintain a majority of these sites. The RO-ACT representative stated that police cooperation was acceptable, but complained that the weakest link is at the magisterial level. He forecast that internet piracy will increase hand-in-hand with broadband internet penetration.

15. (SBU) The Phonogram Producers Union in Romania (UPFR) estimated that although physical piracy nearly disappeared in 2007, internet piracy has increased dramatically. The International Federation of Phonogram Industries (IFPI) complained in writing to both the national police and General Prosecutor's Office in November 2007 on behalf of the UPFR about the lack of progress in 16 criminal complaints of internet piracy, first filed in April 2007. UPFR reported in 2008 that there has been no progress in 15 of the cases, and that one case has moved forward incrementally. The national police told UPFR that the 15 cases do not meet their evidentiary threshold and that they will not be investigated further. UPFR feels that the evidence in the cases is comparable to similar cases that were prosecuted successfully in other countries in the region. Efforts by UPFR to get clarification on the actual evidentiary requirements have been unsuccessful. UPFR is increasing their number of complaints in the hopes that at least one of them will move forward. Eighteen complaints were filed in December 2007, and a similar number in January 2008.

16. UPFR hopes that the first successful prosecution of internet piracy will bring needed media attention to the issue. UPFR is in the final stages of planning a national and regional media campaign against internet music piracy, which would hopefully build on a deterrent-creating, precedent-setting conviction. Both UPFR and the GPO have acknowledged to post that cooperation between them has been unsatisfactory. Additionally, UPFR shares the frustration that rigid warrant regulations hamper the ability of investigators to gather the evidence needed to prosecute cases successfully.

Comment and Recommendation
17. (SBU) Post recommends that Romania remain on the Watch List for 2008. Although there has been significant progress in eradicating street vendors of pirated optical discs, post notes that overall enforcement efforts have failed to live up to IPR industries' and analysts' expectations, particularly in light of Romania's accession to the EU one year ago. Despite participation by officials in numerous training programs, including many funded and conducted by the USG, there remains a persistent and pervasive lack of understanding of the need for determined enforcement and deterrent convictions throughout Romania's judicial system. This is compounded by a reluctance to commit the resources and time required to stay current with the technological developments in piracy. Romanian authorities are poorly positioned to combat the torrential rise in internet piracy, prosecution of which remains inadequate as prosecutors downplay the seriousness of IPR offences in comparison with other types of criminal activity. In too many instances, either prosecutors fail to pursue IPR cases or magistrates take the easiest path by dismissing cases for a perceived lack of social harm. Another remaining issue is insufficient feedback from the enforcement bodies and courts to the copyright holders. Romanian magistrates have yet to demonstrate sustained, concrete results in defending intellectual property rights. End Comment.


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