Wikileaks - MCCXCII

Monday, 05 September, Year 3 d.Tr. | Author: Mircea Popescu






1. (SBU) SUMMARY: In response to reftel, post recommends that Romania remain on the Special 301 Watch List for 2009. Despite a decreasing trend in physical optical disc piracy, the growth of Internet piracy -- both peer-to-peer file sharing and business-to-consumer piracy -- remains a problem. Romania has an adequate legal framework for IPR protection, but enforcement efforts must be consolidated. While there has been increased cooperation between enforcement authorities and industry representatives, post has yet to witness consistent judicial results. END SUMMARY.


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

-- Utilizing EU "Phare" funds, Romania is completing an IT-based project to strengthen the institutional capacity of IPR protection. The on-line, inter-institutional database was completed in 2008 and is scheduled to become operational in early 2009. Prosecutors, police, customs officials and other IPR-related regulatory agencies will have access to a shared system to improve coordination and efficiency on IPR-related cases. The EU grant provided the Romanian police with extensive equipment (computers, printers, scanners, and digital cameras) in order to implement the project. Additionally, in 2008 the EC approved a follow-on grant to continue strengthening institutional capacity through the development of this common database.

-- In October 2008, Romania signed the Cannes Declaration on Anti-Counterfeiting. Signatories commit to take steps against IPR infringement, especially with regard to counterfeited goods, and to strengthen cooperation through information exchanges.

-- The Government of Romania (GOR) approved technical norms to implement laws protecting industrial designs, utility models and patents. The State Office for Inventions and Trademarks (OSIM) began accepting e-filings for patent applications.

-- 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. The number of Internet piracy cases for which technical assessments were completed by the Romanian Copyright Office (ORDA) and referred to prosecutors increased from one in 2007 to 36 in 2008.

-- The Association of Producers and Distributors of IT and Communication Equipment (APDETIC) reported that in 2008 the Romanian enforcement bodies' anti-counterfeiting efforts in hardware successfully met APDETIC's demands.

-- In 2008, post sponsored a senior expert on patents, an IPR judge from the Supreme Court and a chief IPR county prosecutor to attend training at the U.S. Patent and Trademark Office's IPR Enforcement Academy in Alexandria, Virginia. Post also nominated an IPR police officer to participate in the Department's International Visitor Program. Private industry sources have also provided training opportunities for Romanian judges, prosecutors, police, border officials, and industrial property rights experts. Additionally, WIPO and the European Patent Office conducted international IPR workshops in 2008.


3. (SBU) Despite these positive developments, post's assessment is that IPR legislation still is not vigorously enforced in Romania. The ability to successfully prosecute IPR crimes, leading to conviction, remains weak. IPR cases are technically complex, time consuming, and frequently dismissed by judges based on a "lack of social harm." While on the decline since 2007, infringements involving ambient music (music broadcast in public spaces, such as in bars) still represented 30 percent of IPR enforcement cases concluded in 2008.

4. (U) Internet piracy remained the most serious IPR infringement problem in 2008. Although the legal framework is in place to combat Internet piracy, enforcement lags far behind. Law enforcement capabilities generally were weakened in 2008 when Parliament voted to modify the criminal code, limiting data retention by authorities to six months and making it harder for authorities to open criminal investigations. Enforcement agencies deplored these changes. 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 reluctant to cooperate

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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 in 2008 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 in police and prosecutor handling of individual cases, there are still substantial delays in criminal investigations. However, the Copyright Office (ORDA), a quasi-independent government agency funded through the Ministry of Culture, improved its turn-around time in 2008 on technical assessments of seized goods to police, a formal requirement to pursue criminal charges. ORDA's administration of the obligatory hologram marking system for music and video products remained unpopular with the optical disc industries, who questioned its effectiveness and its high costs. ORDA reported a 70.2 percent decrease in the number of items subject to technical inspection in 2008 from 2007, reportedly due to the increase in Internet piracy and therefore need for fewer product physical analyses. While ORDA sold 12.1 percent less holograms to phonogram copyright holders, it registered a 96.7 percent in hologram sales to video copyright holders. ORDA also reported a 23.9 percent drop in the number of software programs recorded in the national registry in 2008 compared to the previous year.

6. (U) A major concern raised by the software industry is the current legal requirement for investigators to have a computer search warrant issued in advance of any inspection of the licensing status of installed software. Industry representatives said this requirement is particularly onerous for business-related raids. 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.


7. (U) In 2008, Romania registered 5,715 new IPR-related files, down 46.4 percent from the previous year, and concluded 5,080 IPR-related cases, down 7.5 percent from 2007. 91 of these cases ended with an indictment, a decrease of 43.8 percent compared to the prior year. The majority of concluded cases (70 percent) involved non-ambient music files, a 50 percent increase compared to 2007. 2,528 cases were dismissed in the criminal court in 2008 due to a finding of "lack of social harm," an 11.3 percent decline from 2007. 110 cases were settled out of court, a 14.7 percent decrease from the previous year. In 2008, there were 36 final court sentences (down from 102 in 2007): 21 cases resulted in prison convictions (down from 51 in 2007) and three were assessed fines (down from 16 in 2007). The criminal court dismissed ten cases (compared to nine such decisions in 2007) and reassigned two cases to the civil court (compared to 24 in 2007), both of which ended with administrative fines due to a finding of "lack of social harm." There were no acquittals in 2008 (versus two in 2007).

8. (U) In 2008, the State Office for Inventions and Trademarks (OSIM), a GOR institution with no enforcement duties, provided expert, technical industrial property rights assessments in 461 cases brought by police, border authorities, prosecutors, and customs, down 6.9 percent from 2007. OSIM reported 161 industrial property rights cases to the courts in 2008, down from 458 cases sent during the previous year. Out of these, 120 cases involved trademarks, 14 involved patents, 13 involved industrial design, and 14 involved other infringements. Of the 161 cases, 57 were cancellation requests (trademarks, patents, industrial design); 36 were requests for forfeiture of rights (trademarks); and 42 were lawsuits regarding prohibition of imports and the marketing of suspected counterfeit products.

9. (U) Customs officials reported seizing approximately 20.9 million pieces of counterfeited goods in 2008, down from 27.3 million pieces in 2007. Clothing, cosmetics and toiletries, footwear, cigarettes, lighters, leather goods, vehicle spare parts, medicines, and DVDs accounted for most of the seizures. The national police also seized 17.6 million USD worth of goods in 2008, compared to 5.5 million USD in goods for 2007. The national police expressed frustration over the fact that many pirated software seizures come from PCs imported into Romania from other EU countries; while the pirated software does not originate in Romania, police must count it against Romania's national piracy rate, giving a distorted picture of reality.

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10. (U) In 2008, Romanian national police units combating IPR-related crimes reported 6,168 such crimes, of which 3,764 were intellectual property rights infringements and the rest were infringements of industrial property rights. The police solved 3,591 IPR-related cases in 2008, out of which 2,610 cases involved intellectual property rights and the rest industrial property rights. With the 2007 dissolution of RO-ACT (the film industry's anti-piracy association), and no successor organization in place, the police have frozen 42 infringement cases formerly brought by RO-ACT.

11. (U) Despite a decrease in the number of prosecuted cases reported by the General Prosecutor's Office (GPO) and acknowledged by the national police, the two enforcement authorities concluded this was chiefly the effect of decreasing the number of files involving ambient music and focusing on more serious cases. Both the national police and the GPO believe that ambient music infringements should be de-criminalized and treated as administrative (civil) offenses, punishable only by fines, in order to dedicate additional resources to serious IPR crimes. The specialized IPR enforcement units of the national police and the GPO confirmed that Internet piracy has become the leading trend in Romania and have requested specialized training programs on how to investigate and prosecute such cases.


12. (SBU) Private industry representatives told post that Romania has adequate laws in place to protect intellectual property rights. The problem lies with enforcement: industry 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 are mainly concerned about P2P downloading, such as with Bit Torrent, and they expect this trend to continue as broadband Internet penetration increases. Industry representatives stressed the need for Romanian enforcement agencies to stay abreast of technological advances in piracy, but did affirm that collaboration with the police was good in 2008 and should continue to improve. Although private industries noted incremental progress in ORDA's response to court requests for IPR forensic analyses, they also noted a problem with the increasing costs ORDA charged industry members for such work.

13. (SBU) The Business Software Association (BSA) states that its relationship with the local enforcement authorities has significantly improved since ORDA was stripped of enforcement duties in 2005, in favor of police and prosecutor enforcement authorities. In 2008, based on BSA complaints, police conducted more than 470 new raids involving end-user and re-seller cases. While the number of raids on hard disk loaders remained steady, BSA noted more big companies were targeted than in previous years and one such company raid of thee office locations resulted in more than 700 PC seizures. There were three cases in 2008 where re-sellers were convicted and sent to jail for software copyright infringement; one case resulted in a Romanian record sentence for an IPR crime (six years and seven months' imprisonment). BSA reported 41 total convictions in 2008, compared to 61 convictions in 2007. Prison sentences averaged one year but were typically suspended; however, such sentences outnumbered criminal fines imposed, as was typical in previous years. BSA reported that in 2008 Romanian authorities undertook numerous enforcement actions without having to be prompted by industry and were receptive to private sector tips and referrals.

14. (SBU) An attorney who specializes in entertainment software IPR enforcement and who represents two major gaming companies reported that the bulk of IPR violations affecting these companies involved unauthorized use of games in Internet cafes and retail sales of burned pirated products, both of which decreased slightly in 2008 compared to 2007. Problems with delays in court proceedings, weak sentencing, and difficulties in getting required search warrants for computers, particularly in businesses, continued in 2008. The entertainment software representative reported nearly 200 new criminal cases in 2008, though this was less than the previous year. The representative also remarked that there were fewer pre-trial settlements and more cases resulting in actual court verdicts. Still, the representative complained that since 2002 no appeals filed with the court against prosecutors' decisions to close a case for "lack of social harm" have been successful, although the Bucharest Appeals Court in 2008 did agreed to hear one such appeal later in 2009. The industry complains that in addition to the lack of feedback regarding the status of pending cases, court proceedings were still too lengthy. Courts generally remained reluctant to impose penalties stiff enough to have a deterrent effect. The entertainment software industry's relationship with the national police remained solid in 2008, and ORDA decreased the length of

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procedures for certifying technical reports to an average of four to five weeks from several months.

15. (SBU) The Phonogram Producers Union in Romania (UPFR) estimated that Internet piracy continued to increase in 2008, albeit at a lower rate than the previous year. In 2008, UPFR requested damages in 221 criminal files and received no feedback from police or prosecutors on the current status of their cases. UPFR also filed 128 criminal complaints on digital piracy crimes, 13 of which were dropped by the prosecutor. Regarding physical piracy, 236 cases were dropped by prosecutors, four percent of which were opened in 2008, 89 percent in 2007, and seven percent in 2006. Additionally, 39 criminal cases filed in 2008 are currently in court proceedings. Out of all criminal cases sent to court between 2006 and 2008, 43 resulted in convictions and four were acquittals. Convictions typically ranged from one to five years' imprisonment and often were suspended. UPFR reported that in 2008, 169 music sales points were verified and 52 raids were conducted on both illegal studios and DC++ user households, where over 48,000 items (pirated CDs, DVDs, inlays), five laptops, 16 servers and 26 HDDs were seized by enforcement officers. The UPFR reported good collaboration with the national police, no change in the efficiency of the judicial system and ongoing frustration with increasing ORDA tariffs for music title registration.

16. (SBU) COMMENT: Post recommends that Romania remain on the Watch List for 2009. Although there has been significant progress in eradicating street vendors of pirated optical discs, post notes that overall enforcement efforts have generally not satisfied industry or post expectations. Romanian enforcement authorities are poorly equipped and insufficiently trained to effectively combat the rising Internet piracy trend. Investigation and prosecution of Internet piracy cases remains inadequate due to lack of experience and training on how to handle such cases. Post plans to organize Internet piracy training in cooperation with U.S. law enforcement agencies to assist the police and prosecutors in 2009. Additionally, the prosecutors and judges need to improve transparency and provide better, more regular feedback to patent, trademark, and copyright holders on the status of cases. Law enforcement authorities have yet to demonstrate persistent, concrete results in defending intellectual property rights, and this challenge will increase as the GOR faces severe budgetary constraints in 2009 that will likely constrain the operating capabilities of police, prosecutors, and judges. END COMMENT.


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