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The other side

Pratyush Nath Upreti

One morning, while leaving home, I heard my neighbour complaining about the Indian blockade while she was using firewood to cook food for her children, who were dressed for school and awaiting food. One week after this incident, I visited Delhi for an academic conference where one of my Indian colleagues asked me if India was a good neighbour. I replied that good neighbours do not block borders and make a landlocked country suffer. He paused, and with a smile, asked if India is to blame for the political problems prevailing in Nepal. I replied that the problem is ours and the onus is on us to solve

the contentious issues, but as a neighbour, we expect India to be a mediator, not
the moderator.
During my visit to Delhi, I had quite a few conversations with Indian nationals regarding the current situation in Nepal. And from my discussions, I could see that Indians were still unable to comprehend the tragic breakdown of relationships between India and Nepal and the…

GLOBAL CONGRESS ON IP & PUBLIC INTEREST, 2015

Right to Regulation & Investment Court System: Alternative to ISDS? (Part I)

Pratyush Nath Upreti, Upreti & Associates*

Intellectual Property is sexy! Its romantic endeavor with other branches of law makes it appealing for IP scholars. This romance can be seen through the lens of the global Intellectual property regime. In today’s industrialized world, the landscape of the intellectual property is changing. Mostly, all forms of ‘intellectual property’ have raised debate in the trade agreements domain, making it an important aspect of trade negotiation. The open market economy encourages the developed countries to opt for Investment/Trade Agreement such as Free trade agreement (FTA), Bilateral Investment Treaties to attract investors by strengthening IP regimes. It is evident that IP as incentive commodity has turned into assets, trading commodity.

Similarly, the expectation of investors is increasing. Recent cases such as Philip Morris v. Uruguay have revealed the complexity and potential overlap between intellectual property, Investment Law, and Trade La…

सामाजिक सञ्जालमा लेखेकै भरमा कारबाही गर्ने कानूनविरुद्ध सर्वोच्चको कारण देखाउ आदेश

नेपालको साइबर अपराधलाई धान्दै आएको विद्युतीय कारोबार ऐन २०६३ को दफा ४७ असंवैधानिक भएको भन्दै बदर घोषित गर्न दर्ता भएको रिटमा आज सर्वोच्च अदालतले कारण देखाउ आदेश जारी गरेको छ।

अधिवक्ता प्रत्युसनाथ उप्रेतीले दर्ता गरेको रिट निवेदनमा न्यायाधीश देवेन्द्रगोपाल श्रेष्ठको एकल इजलासले आइतबार सुनुवाई गर्दै विपक्षीहरुका नाममा कारण देखाउन आदेश दिएको हो।

रिट निवेदनमा नेपाल सरकार नेपाल सरकार प्रधानमन्त्री तथा मन्त्रिपरिषद्को कार्यालय, व्यवस्थापिका-संसद सचिवालय, सूचना तथा संचार मन्त्रालय, गृह मन्त्रालय, कानून, न्याय तथा संसदीय मामिला मन्त्रालयलाइ विपक्षी बनाइएको छ।

विद्युतीय कारोवार ऐनको दफा ४७ ले कम्यूटरको इन्टरनेट लगायत विद्दुतीय संचार माध्यममा प्रकाशन र प्रदर्शन गर्न नहुने सामाग्री प्रकाशन र प्रदर्शन गर्नेलाइ एक लाख रुपैयाँ सम्म जरिवान वा पाँच वर्ष सम्म कैद वा दुवै सजायँ हुने व्यवस्था छ।

सामाजिक सन्जालमा सामान्य टिका टिप्पणी गर्दा पनि गम्भिर फौजदारी अभियोग खेप्न पर्ने भएकाले उक्त प्रावधानले नेपालको संविधान (२०७२) ले प्रदान गरेको धारा विचार तथा अभिव्यक्तिको स्वतन्त्रताविरुद्ध भएकोले बदर घोषित ग…

Online policing: SC serves govt show cause

Nov 23, 2015-

The Supreme Court has issued a show-cause notice to the government and concerned ministries for prosecuting civilians by defining their comments and opinions on social networking sites as cyber crimes.

Responding to a writ filed by advocate Pratyush Nath Upreti, a single bench of Justice Devendra Gopal Shrestha on Sunday asked the Prime Minister’s Office, Law Ministry and Information Ministry to explain the reasons behind the arrest of some citizens for sharing online contents and comments that apparently slandered the government ministers and even the President.
Upreti has claimed that the action is an outright attack on a person’s freedom of expression guaranteed by the constitution.
Upreti had filed the writ of mandamus, seeking nullification of clauses 1 and 2 of article 47 in the Electronic Transactions Act that curtails the right of free speech and freedom of expression.
The article states that a person displaying any material in the electronic media which “may be…

Appeal to revise cyber legislation

Nov 19, 2015-

The Supreme Court has been asked to direct the government to rectify the Electronic Transactions Act of 2008 which “puts restriction on an individual’s right to expression against the new constitution”.

Advocate Pratyush Nath Uprety on Wednesday filed the appeal at the Supreme Court demanding to issue a writ of mandamus to the Office of the Prime Minister and Council of Ministers so that the clauses 1 and 2 of article 47 in the Electronic Transactions Act are nullified. The article, he argues, curtails the fundamental rights, and can be use by the state to prosecute innocent citizens.
The article 47 states that a person displaying any material in the electronic media which “may be contrary to the public morality or decent behaviour, may spread hate or jealousy against anyone, or may jeopardise the harmonious relations among people shall be liable to the punishment with the fine not exceeding one hundred thousand rupees, or with the imprisonment not exceeding five years…

Right to read

Pratyush Nath Upreti & Asmita Dhital

Many people reading this article perhaps grew up in a realm of books, and finding a book to read, perhaps, was never that difficult. But not everyone in Nepal gets this opportunity. People often argue that everyone in Nepal must have access to education. But, those making such an argument fail to realise that just having access to education alone is not enough; what people need is the opportunity to read books in the format understandable to them. The ‘right to read’ is, therefore, related to the access of reading materials, in print or any other readable format.

Reading as a human right


None of the international treaties establish the right to read as a human right. But there are series of recognised human rights which—based on interpretation—do incorporate the right to read. It can be traced from the rights enshrined under International Convention such as the Universal Declaration of Human Rights (UDHR) and International Covenant on Economi…

IPKAT Friday fantasies

It's a privilege to see my name in one of the highly reputed Intellectual Property Law blog of Europe run by renowned IP scholar like Prof. Jeremy Phillips and among others.
Link to the post

START TALKING

Pratyush Nath Upreti

Few days before the promulgation of Nepal Constitution 2072, I stumbled upon a conversation among some people at a tea stall near my home. The conversation revolved around the role of India in Nepali politics. There were three points that I could take out from that conversation.

First, India fully supports Madhesh agenda and, in fact, it was intentionally fomenting agitations to avoid timely constitution. Second, India wanted to avoid the timely constitution because it wanted to restate Nepal as a Hindu kingdom, which was supposedly agreed in a 'Bangkok meeting' between India, ex-king Gyanendra and China, with Russia as a surprise attendee. Third, this meeting happened when Home Minister Bam Dev Gautam deployed the army. In worst-case scenario, the United Nation intervenes and then Russia and China may use Veto Power to support Nepal.


Just one week later, an overwhelming majority of Constituent Assembly passed the Constitution. The historic achievement was …

Loosing state religion

On September 14, an overwhelming majority of the Constituent Assembly (CA) rejected an amendment proposal against the clause which states that Nepal is a secular country. But in spite of the CA’s rejection, anti-secular sentiments are being harvested among the citizens.

Flawed logic
Voices in support of Hindu kingdom or anti-secularism, however, still remain strong. Most seem to equate religious freedom with secularism. And those in favour of reinstating Nepal as a Hindu kingdom make two arguments. One, as a Hindu state, Nepal would achieve a symbolic victory of being established as the only Hindu country in world. Two, a majority of the people are Hindus, therefore, Nepal should not be a secular state. The first argument is lame and the second is equally illogical. Going by this logic, why cannot a Limbu-majority region be declared as Limbuwan state? If demanding ethnic federalism is seen as being against social harmony, the demand for a Hindu state is no less against social harmony…

copyright exception and limitations particularly focusing on the movement of copyright exemption for Library purpose

Last week, It was pleasure to listen Prof. Kenneth D. Crews on "copyright exception and limitations particularly focusing on the movement of copyright exemption for Library purpose". The Treaty Proposal on Copyright Exceptions and Limitations for Libraries and Archives aims to have broader public access to knowledge, not confining to traditional format and encouraging a transborder flow of information. Although, this year, the issues was widely discussed in Standing Committee on Copyright and Related Rights(SCCR) but still a long way to have a consensus. Nepal Copyright law have incorporated an exception for Library work but when it comes to the digital environment, it's a toothless law. The Recent success of Marrakesh Treaty gives a hope for another consensus. Marrakesh Treaty still needs a deposit of 10 instruments of ratification to entry into force. Nepal has kept ratification of Marrakesh Treaty as a priority in Action Plan of Government. ## IP development## copyri…

Regional Meeting: Conservation, Use and Exchange of Crop Genetic Resources: Promoting Regional Cooperation for a Food-Secure, Climate- Resilient South Asia”.

Last week, I attended regional meeting organised by Fridtjof Nansen Institute (FNI), Norway and South Asia Watch on Trade, Economics & Environment (SAWTEE) on “Conservation, Use and Exchange of Crop Genetic Resources: Promoting Regional Cooperation for a Food-Secure, Climate- Resilient South Asia”. As an IP enthusiast, it's really sad to witness intellectual property as a non-priority area of the government. As a result, the Plant Genetic Resources and Access to Benefit- sharing Bill, which has been pending since a while, not been pushed ahead. similarly, we already have few Biodiversity strategy, but haven't drafted any legislation yet. In spite of this, it was good to see SAWTEE and other experts are trying their best to develop a good model for Nepal. ## Intellectual Property, Biodiversity#####

Draft National Information and Communication Technology (ICT) Policy, 2015 Nepal

Pratyush Nath Upreti & Neil Brown

In recent years, Information technology and communication is seen as rapidly grow-ing sectors in Nepal. With access to the Internet, dissemination of knowledge has never been so convenient. The use of information technology to operate rescue and search during the recent earthquake was evident with respect to the importance of In-formation technology and communication in society. Furthermore, Information and Communication Technology (ICT) gives us a medium to enjoy citizen’s freedom of speech and expression. However, ICT sector has also raised various concerns. With an aim to address these concerns and promote ICT in sectors of health, education, ag-riculture, youth, women and among others, Government of Nepal under Ministry of Information and communication have drafted “ National Information and Commu-nication Technology (ICT) Policy 2015” intended to create a vision of ‘Digital Ne-pal’ to achieve knowledge and information based Nepalese society.…

Parasitic proposal

Pratyush Nath Upreti

After almost eight long years of tussle, the people of Nepal finally have a draft constitution. The proposed text has disappointed several interest groups and thereby, has been heavily criticised. My first impression of the draft constitution was that it was lengthy and unclear, making it look like an unedited version of a political manifesto. Even so, finally, we at least have a draft constitution which will hopefully be an inclusive constitution when it is finalised.

Unnecessary provision

There are a few provisions in the draft constitution which are practically meaningless. One of them is Article 38, which guarantees the right to employment as a fundamental right. According to 38 (1), every citizen is entitled to the right to employment subject to terms and conditions imposed by law. This provision is followed by a most bizarre clause which guarantees citizens an unemployment allowance until they land a job. Prima facie, this provision may look attractive and…

Parasitic proposal | Oped | :: The Kathmandu Post ::

"Including the right to employment under fundamental rights with the provision of an enforcement mechanism through the Supreme Court is suicidal. This is because it puts an enormous burden on the state. For me, the right to employment in the draft constitution is a new form of slavery. It devalues the energies of the youth and turns them into slaves. The young people do not need allowances, they need a platform to utilise their skills and incentives to be creative and lead a dignified life instead of depending on unemployment benefits."
Parasitic proposal | Oped | :: The Kathmandu Post ::

Politics of smoke

Pratyush Nath Upreti

On June 30, The New York Times ran a news report: "U.S. Chamber of Commerce Works Globally to Fight Antismoking". Chief Secretary Leela Mani Paudyal said he had received an email from a representative of US Chamber warning Nepal not to devise strict anti-tobacco measures. The reason, according to the news report, was that such measure "would negate foreign investment" and "invite instability".

In spite of such warning, Nepal introduced very strict labeling requirement in tobacco packaging. This highlights government concern about dire health effects of tobacco consumption and to some extent it could also be considered a breakthrough in resisting foreign influences.
Every year tobacco consumption results in billions of death globally. Nepal is no exception. According to National Demographic and Health Survey 201l, 52 percent of men and 13 percent of women use tobacco in Nepal. The survey also reveals increasing tobacco consumption amon…

Engineering compromise: does it have any significance in design law?

Pratyush Nath Upreti

One of the most debated topics in European design law is a ‘technical character’ criterion for determining the scope of design protection. Although theoretically it looks clear, it has in practice certainly raised the eyebrows of lawyers trying to convince courts that the feature in question is not dictated by its technical function. Article 8(1) of the Community Design Regulation denies protection to the features of appearance of a product which are solely dictated by its technical function. There is a plethora of decisions that have given direction in determining product technical function. It is an established principle that the technical character must not be assessed by the perception of the informed user; rather, it must be assessed objectively (R 211/2008-3, ‘Fluid Distribution Equipment, 29 April 2010), which states:

‘the technical functionality of the features of a design may be assessed, inter alia, by taking into account of the documents relating to pa…

Free-riding on the repute of trademarks – Does protection generate innovation?

On April 9-11, 2015, we had the opportunity to participate in the 16th EIPIN Congress held at the European Patent Office and at the Max Plank Institute for Innovation and Competition. On the second day of the Congress, we had a module on ‘The Need to Limit the Scope of Intellectual Property’ where we had the pleasure of listening to Prof. Ansgar Ohly.

The speaker began the session by explaining how innovation is normally associated with patents – which create a financial motivation for invention in return for the disclosure of the invention to the public[1] – and copyright – by promoting creativity through the attribution of exclusive rights to creators. It is not the case with trademarks, whose rationale is more connected with the protection of consumers by capacitating them to make informed decisions in the marketplace.

Free-riding

The term ‘free riding’ is often described as one of the component of unfair competition. According to the World Intellectual Property Organization (WIPO),…

Tread with care

Pratyush Nath Upreti

On June 19, the Supreme Court of Nepal, headed by Justice Girish Chandra Lal, deliberated on the case of Vijay Kant Karma and others vs The Office of Prime Minister and Council of Ministers & others, and issued an interim order for the implementation of a recent 16-point deal inked by four major political parties. On the one hand, the Supreme Court decision has been widely criticised by the legal fraternity and scholars. Their concern seems to be genuine, considering the recent tussles between the judiciary and Parliament. But on the other hand, Madhesi parties opposed to the deal and other minority groups have welcomed the same stay order.

Political questions

There are two important aspects to the Court’s decision. The first aspect is that the recent decision of the Supreme Court has been criticised for being a political question. What is a political question? In his article, ‘The Political Question Doctrine: Suggested Criteria’ (Duke Law Journal, 2005), Jes…

ALUMNI at ELDF

It was great experience of working on 'Indo-Nepal Treaty on River Kosi and Legal and Policy issues of Kosi Beach', under Senior Advocate Sanjay Upadhyay, Supreme Court of India. Intern Enviro legal Defense Firm, India first Environment law firm, (May-June, 2009)

Visit: Environment Law and Development Foundation

Free-riding on the repute of trademarks – Does protection generate innovation?

On April 9-11, 2015, we had the opportunity to participate in the 16th EIPIN Congress held at the European Patent Office and at the Max Plank Institute for Innovation and Competition. On the second day of the Congress, we had a module on ‘The Need to Limit the Scope of Intellectual Property’ where we had the pleasure of listening to Prof. Ansgar Ohly.

The speaker began the session by explaining how innovation is normally associated with patents – which create a financial motivation for invention in return for the disclosure of the invention to the public[1] – and copyright – by promoting creativity through the attribution of exclusive rights to creators. It is not the case with trademarks, whose rationale is more connected with the protection of consumers by capacitating them to make informed decisions in the marketplace.

Free-riding

The term ‘free riding’ is often described as one of the component of unfair competition. According to the World Intellectual Property Organization (WIPO)…