● 12.30.11
●● Cablegate: Lithuania ‘Watched’ for Not Accepting Monopoly/’IP’ Regime From West, Government Adoption of Free Software Noted
Posted in Cablegate, Free/Libre Software at 12:38 pm by Dr. Roy Schestowitz
Summary: What a cable about lobbying in Lithuania reveals about Free/open source software
IN Lithuania, the “USE OF GOVERNMENT SOFTWARE” saw some changes not too long ago. According to the following Cablegate cable,”[a] A Government Information Society Development Committee is considering a draft resolution which will recommend that government institutions use open source computer software programs. The GOL does not have a timeframe for the resolution’s adoption, but intends to allocate funds to support training to familiarize agencies with the new software.”
This is not he first time we write about Lithuania, but sometimes we do. The relevance of this cable is that it shows yet another example where blacklists or shame lists are used to oppress and subjugate countries that are sceptical of patent/copyright regimes. We gave many such examples before, e.g. in Turkey. Here is the entire cable:
UNCLAS SECTION 01 OF 05 VILNIUS 000165
SIPDIS
STATE FOR EB/IPE SWILSON AND EUR/NB GERMANO
STATE PLEASE PASS TO USTR JCHOE-GROVES AND LOC STEPP
COMMERCE FOR JBOGER AND USPTO JURBAN
E.O. 12958: N/A
TAGS: ECON [Economic Conditions], KIPR [Intellectual Property Rights], ETRD [Foreign Trade], LH [Lithuania], HT24
SUBJECT: LITHUANIA: YEAR 2005 SPECIAL 301 REVIEW
REF: A. SECSTATE 23950
B. 04 VILNIUS 00226
C. 04 VILNIUS 00241
D. 04 VILNIUS 00273
E. 04 VILNIUS 00372
-------
SUMMARY
-------
¶1. Lithuania is making progress against intellectual
property rights (IPR), but it should remain on the Watch
List for 2005 due to persistent weaknesses in its
enforcement system. A local industry association estimates
that the rate of piracy for recorded music, films, and
games dropped to 40 percent of the total product in
circulation, down from 55-65 percent in 2003. Local IPR
advocates indicate that two large organized crime
syndicates with Russian links control piracy activities
related to these items. The GOL conducted an IPR Public
Awareness Campaign, but has still not decided whether to
require mandatory source identification coding on optical
discs. It seized 316,948 units of audio CDs, DVDs, videos,
PC games and other pirated products, (up from 142,800 units
in 2003) worth USD 3,548,966, launched cases against six of
an estimated 20 distributors of illegal works on the
internet, and filed 131 criminal cases and 180
administrative protocols (versus 86 pretrial investigations
and 171 administrative protocols in 2003). Court
procedures remain slow and cumbersome. Fines levied
against IPR violators are low and do not deter pirating.
The police are understaffed in the IP section, and border
surveillance is inadequate. End Summary.
-------------------
OVERALL PIRACY RATE
-------------------
¶2. The Lithuanian Music Industry Association (LMIA), which
collects and maintains general piracy statistics, estimates
the general level of piracy for music, films, and games in
the Lithuanian market at about 40 percent, down from 55-65
percent in 2003. Definitive figures, LMIA cautions, are
difficult to derive due to problems with tracking the use
of rented films and internet games. LMIA's figures reveal
a piracy level of musical works of 30-40 percent, with
international repertoire representing 58 percent of the
total. This is significantly lower than the International
Intellectual Property Alliance's (IIPA) figures of 80
percent for records and music, 65 percent for motion
pictures, 58 percent for business software, and 85 percent
for entertainment software. The Chairman of the Board of
the Phonogram Producers and Distributors Association (FGPA)
in Lithuania stated that the piracy rate of phonograms
(CDs, musical videos, and DVDs) is greater than 70 percent,
resulting in annual losses of USD 20 million.
¶3. FGPA stated that at least two large organized crime
groups, likely under Russian mafia control, coordinate and
control piracy in Lithuania. The FGPA estimates that each
of these Vilnius-based groups has stockpiled 200-300,000
illegal CDs, and sells nearly 300,000 discs per month
equally to Lithuanian and foreign customers. Over 50
percent of this volume has pirated American content. The
FGPA Chairman explained that organized crime sells its CDs
through direct marketing to cafes, bars, offices, and at
marketplaces, and by exporting them to Poland, Germany,
Latvia and Estonia. More than 90 percent of the illegal
product is imported from Russia, Belarus, Ukraine and
Poland, while the rest is burned locally.
-------------------
LAWS PROTECTING IPR
-------------------
¶4. Lithuania did not modify its IPR-related laws in 2004.
A GOL working group has been charged with drafting the
relevant legal amendments by August 2005. These amendments
will bring the country's copyright and industrial property
rights laws into line with EU standards. The amendments
will require the publication of court judgments in
newspapers as a preventive measure to discourage IPR
violations.
------------
GOL OUTREACH
------------
¶5. The GOL conducted an IPR Public Awareness Program in
2004. The Ministry of Culture organized public
consultations in each of the country's ten largest cities.
The Ministry invited representatives of cultural
institutions (libraries, museums, theaters, publishers) and
small businesses to attend these sessions in order to
discuss copyright agreements and the identification of
protected works.
--------------------
OPTICAL MEDIA PIRACY
--------------------
¶6. The GOL has not decided whether to require mandatory
source identification coding (SID) of all optical discs
produced in the country. The Ministry of Culture will make
a decision following a meeting with representatives of the
recording industry in early 2005. We question the impact
of such a rule, however, since most pirated CDs are
manufactured outside of Lithuania.
--------------------------
USE OF GOVERNMENT SOFTWARE
--------------------------
¶7. A Government Information Society Development Committee
is considering a draft resolution which will recommend that
government institutions use open source computer software
programs. The GOL does not have a timeframe for the
resolution's adoption, but intends to allocate funds to
support training to familiarize agencies with the new
software.
---------------
INTERNET PIRACY
---------------
¶8. The GOL intends to include in its amendments to the
copyright law procedures that would clarify its Ecomas
Directive of 2000, which required an internet service
provider (ISP) to act expeditiously and block content, upon
the request of the appropriate IP right holder. The
amendments will define the requirements that the request
must fulfill, and a timeframe for the ISP to act. The
Managing Director of the Lithuanian Neighboring Rights
Association (Agata) informed us that the issue of who
should take lead responsibility for internet content is
under consideration by Lithuania's Constitutional Court.
-------------------------------------------
TRIPS COMPLIANCE AND OTHER IP-RELATED ISUES
-------------------------------------------
¶9. On January 1, 2004, the GOL implemented a six percent
tax on blank media carriers to help remunerate the authors
of copyrighted works. The Agency of the Lithuanian
Copyright Protection Association (LATGAA) collected LTL 2
million (USD 757,576) in blank media carrier taxes in 2004,
and distributed this sum to authors.
¶10. The GOL amended its trademark law on February 19,
2004, and its design law on April 29, 2004, to conform to
EU regulations and directives. Community trademarks and
designs were given precedence over corresponding national
products. The GOL did not modify its patent law in 2004.
Parliament, however, will consider amendments during its
Spring 2005 session that will harmonize Lithuanian law with
an EU directive on biotechnological inventions. All
Lithuanian legal limitations to the exclusive rights of
copyright owners and producers of sound recordings conform
to TRIPS exceptions and EU law.
¶11. Three Lithuanian laws protect geographical indicators:
the Law on Plant Variety Protection, the Law on
Competition, which prohibits the declaration of improper
origin, and the Law on Trademarks, which bars the
registration of a trademark with misleading geographical
indicators (GI). Prior to joining the EU, the GOL, on
April 26, 2004, modified its Order "On the Protection of
Geographical Indicators in Agricultural Products and
Foodstuffs" to implement the EU regulation protecting GIs.
The Patent Law (effective February 1, 1994) provides patent
protection to all technical products, including those
derived from genetic resource sharing. There was no change
in 2004 to Lithuania's June 16, 1998, Law on the Legal
Protection of Topographies of Semiconductor Products, which
covers integrated circuits. The Law on folklore
supervision protects the rights of folklore artists,
registers their works, and requires publisher-author
agreement on remuneration.
------------------------------------
LITHUANIA HAS RATIFIED WIPO TREATIES
------------------------------------
¶12. The GOL ratified the two World Intellectual Property
Organization (WIPO) treaties in 2002 and incorporated their
requirements into national law via amendments to the
copyright law of March 5, 2003. Enforcement of the law has
been weak. The police initiated only five criminal cases
against internet piracy in 2004, up from four in 2003.
Embassy feels that this modest progress made little headway
in combating the high level of internet piracy in the
country.
-----------------------------------------
GOL'S RESPONSE TO IIPA'S LEGAL CRITICISMS
-----------------------------------------
¶13. The Ministry of Culture responded to criticisms of its
Copyright Act that IIPA included in its 2005 Special 301
submission to the Department. IIPA noted that it was
unclear whether Lithuania assesses damages for each act of
infringement or for each work infringed. The Ministry
noted that it is considering the introduction of a sampling
procedure under the Civil Procedure to help identify the
legality of an entire batch of products. Though the IIPA
alleges that the term of protection is too short, the
Ministry states that it provides an adequate term of
protection for works (for 70 years of an author's life, and
an additional 70 years after his death). The Ministry
stated it had not heard of the "private copying exception"
mentioned by IIPA in its submission. Article 3 of
Lithuania's Law on the Protection of Intellectual Property
and Neighboring Rights covers the first release or
simultaneous publication -- in Lithuania -- of works or
phonograms. Lithuanian law confirms the rights of
broadcasters to receive royalties, in compliance with the
International Rome Convention (Article 12) and the WIPO
treaty (Article 15). Agata collects these broadcasting
royalties.
-----------
ENFORCEMENT
-----------
Police
------
¶14. The Criminal Police, together with LMIA, conducted
inspections of 239 companies and retailers in 2004. It
seized 316,948 units of pirated products, mostly audio CDs.
65 percent of black market sales in Lithuania were for
musical products, 31 percent were for audiovisual works,
and four percent for games. The corresponding proportion of
these products in the legal market is music - 52.25
percent, audiovisual works - 26.75 percent, and games - 21
percent. In 2003, the police confiscated 142,800 units of
CDs, videos and computer software, and brought three
actions against organized crime groups in 2004. In
February, it seized 36,000 units, including 11,000
audiocassettes and 20,000 audio CDs, of pirated product
from an illegal warehouse in Vilnius. It seized another
170,000 units from a second Vilnius warehouse and from a
production facility in July, and more than 30,000 CDRs
(including 10,000 blank CDRs) and 2,800 DVDs smuggled from
Russia in Kaunas in December.
¶15. The total value of products seized by the police in
2004, utilizing the lowest legal retail prices, was LTL
9,369,270 (USD 3,548,966), of which music works constituted
LTL 6,149,970 (USD 2,329,534) of the total, audiovisual
works LTL 2,940,960 (USD 1,114,000), and games programs LTL
278,340 (USD 105,432). LMIA's data suggests that losses to
the owners of international repertoire music works rights
in 2004 were about USD 6.13 million.
¶16. An LMIA representative reported that, following the
establishment of a five-person specialized IPR police unit,
crime bosses masterminding piracy activities and retails
outlets selling pirated goods have increasingly been
targeted by law enforcement. The specialized unit utilizes
city police officers to conduct the raids and undercover
stings. Every major police department in Lithuania
dedicates one officer to coordinating IPR activities.
---------------
INTERNET PIRACY
---------------
¶17. The police launched six cases (one administrative,
five criminal) against internet distributors. In one raid,
police seized 2,900 films from a distributor. In 2003,
police initiated four criminal prosecutions against
websites marketing pirated products. LMIA estimates that
there may be as many as 20 distributors selling pirated
products over the internet. Agata and FGPA are trying to
establish cooperative agreements between ISPs and rights
holders under which the ISPs will agree to block the
broadcasting of protected works. The Agata Managing
Director noted the difficulty in getting permits from
international phonogram producers, since many don't have
local offices in Lithuania. Protecting IPR rights on the
internet, she said, is an area of particular interest for
her organization, since there is a growing potential for
abuse of IPR on the internet.
------------------------------------
INADEQUATE INTER-AGENCY COORDINATION
------------------------------------
¶18. The coordination between GOL agencies charged with IPR
protections could improve.
Customs
-------
¶19. Customs intercepted few pirated products in 2004.
Most pirated products are smuggled into Lithuania without
an opportunity for Customs inspection. Further, now that
Lithuania is part of the EU, Customs does no inspection of
vehicles entering through Poland and Latvia. They only
inspect at the borders with Belarus and Kaliningrad,
reducing the amount of contraband they might find. The FGPA
Chairman criticized the Customs Intelligence Service for
not being more active in identifying corrupt Customs
officers and cars carrying smuggled goods. He noted that
one car is capable of concealing 6-10,000 CDs.
The Courts
----------
¶20. The police filed 131 criminal cases and 180
administrative protocols for IPR violations in 2004. (An
administrative protocol is a description of a violation of
the Administrative Code, which is judged by an
Administrative Court.) In 2003, the police began 86
pretrial investigations, and filed 171 administrative
protocols.
¶21. The maximum penalty for piracy is LTL 2,000 (USD 758),
but courts usually award penalties of between LTL 100-200
(USD 38-76). Pirates often receive lower penalties by
claiming mitigating circumstances as a basis for leniency.
Industry representatives told us that these fines fail to
adequately deter piracy. Pirates, they tell us, fear
retaliation from organized crime more than penalties
imposed by the judicial system. The Ministry of Culture
told us that a draft law under consideration by parliament
would increase the maximum fine for individuals under the
new Administrative Code to LTL 5,000 (USD 1,894), and for
legal persons to LTL 10,000 (USD 3,788).
¶22. The relevant laws are new, and experts cite the need
for judges to receive training in interpreting these laws.
During a December 2004 USG-funded visit by U.S. Patent and
Trademark Office Senior Counselor Michael Keplinger, Court
of Appeals Judge Virginija Cekanauskaite remarked that her
colleagues could use training in how U.S. and other foreign
judges interpret IPR statutes.
¶23. IIPA and FGPA raise valid concerns about the
cumbersome nature of the court-mandated expert review
process. The courts require that experts submit reports
after identifying, examining, and translating the title of
each seized album. Courts require these reports to confirm
that the stolen intellectual property belongs to the rights
holder, a process that necessitates the comparison of each
CD code with corresponding legal CD codes. By contrast,
common European practice sanctions the use of sampling.
-------------------------
BALTIC OPTICAL DISC PLANT
-------------------------
¶24. In its submission, IIPA noted the recording industry's
complaint alleging pirate production at the Baltic Optical
Disc (BOD) plant. The LMIA and FGPA told us that the plant
is "clean." LMIA opined that production of pirated goods
at BOD is unlikely, because the plant is inspected by the
police, LATGAA, LMIA and NCB (the Nordic Copyright Bureau).
LMIA added that these inspections had found no evidence of
piracy.
--------------------------------------------- -----
RECOMMENDATION -- KEEP LITHUANIA ON THE WATCH LIST
--------------------------------------------- -----
¶25. Lithuania continues to have IPR problems, despite its
progress. We concur with the thrust of IIPA's criticisms,
and with its recommendation that Lithuania remain on the
Watch List for 2005. The piracy rate dropped to about 40
percent from 55-65 percent in 2003, the government
conducted a Public Awareness Campaign on IPR protections,
and is making a good faith effort to tackle internet
piracy, launching cases against six of an estimated 20
distributors of illegal media. The Criminal Police seized
316,948 units of pirated products, up from 142,800 units in
2003. The police brought three actions against organized
crime groups in 2004. Enforcement, however, remains the
weakest element in the country's IPR protection system.
There appears to be insufficient political will to tackle
the problem. Additional high-level attention focused on
the importance of IPR protections would be beneficial on
the ground. The law enforcement effort against piracy is
constrained by inadequate resources, corruption, low fines,
and a slow and cumbersome process of redress in court.
--------------------------------------------
EMBASSY'S EFFORTS TO PROMOTE IPR PROTECTIONS
--------------------------------------------
¶26. We will continue to urge Lithuania to make greater
efforts to address weaknesses in its enforcement system.
USG-funded programs made it possible for U.S. experts to
hold a two-week training session for Lithuanian Customs and
Police officers in January 2005, for two Lithuanian Court
of Appeals judges to participate in an IPR business-
judicial roundtable in Bratislava, and for a U.S. copyright
expert to speak at a GOL conference to commemorate the 10th
anniversary of Lithuania's membership in the Berne
Convention. We also solicited and arranged the first ever
visit to Lithuania of a representative of the Motion
Picture Association of America to discuss piracy issues
with key distributors and government officials. We will
encourage the GOL to approach IPR violations within the
broader context of complex crimes encompassing tax evasion
and illegal employment, and to continue to go after the
organized crime bosses masterminding piracy in Lithuania.
MULL
Notice how these US diplomats bat for Hollywood and other such ‘IP’ interests. It’s like an extension of the commercial sector, funded exclusively by taxpayers. █
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