A: Intellectual Property Rights in Nepal
1. Hey I made, that
Apr 29, 2018-World Intellectual Property Day was celebrated on April 26 under the theme ‘Powering Change: Women in Innovation and Creativity’. In general, gender disparities are visible in Nepal. In the music and film industry, there are more men than women. Nonetheless, the highest grossing Nepali film Chhakka Panja was directed by a woman, reminding us that women are no less innovative or creative than men. The existing legal framework provides limited incentives for women to encourage creativity and innovation. The Industrial Enterprises Act 2016 provides a 20 percent discount on the registration fee for enterprises owned by women. Similarly, the National IP Policy 2017 provides legal and administrative facilities.
Barriers to copyright enforcement In recent times, the Nepali film industry has been vocal about copyright infringement, and rightly so because unauthorised use of someone’s work should not be allowed, and strict action should be taken against violators. The online piracy of Chhakka Panja, Chha Ekan Chha and Dreams stirred the Nepali film industry. Bhuwan KC, the director of Dreams, reportedly settled the piracy dispute with a hefty compensation. This year, the Kri team was accused of copyright infringement for using Shambhu Pradhan’s work. The dispute was reportedly settled for a payment of Rs1.1 million. Surprisingly, Bhuwan KC, who has been demanding stronger copyright enforcement, criticised Shambhu Pradhan for demanding compensation. This episode shows the mindset of the Nepali film industry.
In most piracy cases, the music director or producer often claims the work to be original. However, the Copyright Act of 2002 leaves it to the court to determine the criteria for originality. Most copyright disputes do not go to court. Lack of awareness and flaws in the copyright law is the main reason. Under the Copyright Act, the author of the work cannot file a civil case in court against the perpetrator as the law considers copyright offences as state cases. However, civil remedies are available to the authors. This procedural burden is also one of the reasons why copyright cases are usually settled out of court.
Most of the times, authors are reluctant to press charges because they fear being isolated in the movie industry. This will hinder creativity and lead to more cases of piracy in the film industry. Performing cover songs and uploading them to YouTube has become a trend in Nepal. Most people upload the videos without the author’s permission. There is always the possibility of copyright infringement. The court has slapped heavy fines in copyright infringement cases related to cover songs. However, one cannot ignore the fact that these cover songs help authors to reach a wider audience and gain some sort of celebrity status.
There are success stories too. This month, the Ministry of Agriculture launched a collective trademark for tea and its implementation directive with the aim of standardising Nepali orthodox tea. Likewise, the Collective Rights Management Society successfuly got the laws amended to prohibit music from being played on public transport without paying royalty. A similar arrangement was made with Ncell and Nepal Telecom to ensure royalty payment for caller ring-back tones.
The establishment of the Nepal Box Office by the National Film Development Board to verify the gross collection of Nepali films is an important milestone. And this is the right time for the film industry to exert pressure on the government to bring legislative reforms on intellectual property. Most importantly, the industry should be open and critical about their rights and obligations. In March 2017, the first National IP Policy was introduced with the goal of bringing legislative reforms within two years. In the past one year, there has been no concrete discussions on the planned legislative reforms. Hopefully, this year, the concerned ministry will take the initiative on legislative reforms.
One important task which the previous government failed to do is ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, which aims to end the book famine faced by such people. In 2015, the government had put ratification of the treaty in its priority list. Unfortunately, the subsequent government failed to give importance to the issue. If Nepal ratifies the Marrakesh Treaty, it will allow blind and visually impaired people to make accessible format copies without the author’s permission. Hopefully, this government will give priority to ratifying the Marrakesh Treaty.
In the area of industrial property, the courts and the Department of Industry are slowly becoming open to recognising well-known trademarks. This is a positive step, but the Department of Industry still has a conceptual problem in understanding well-known trademarks which needs to be addressed. The digitalisation of trademark filing, transparency and accountability within the Department of Industry are important steps ahead.
During Prime Minister KP Oli’s recent visit to India, he assured potential investors that Nepal was ‘a safe and stable destination for investment’. Indeed, after successfully holding the elections, Nepal is moving towards political stability, and a well-built balanced intellectual property system which ensures rights to the inventor and access to the public will stimulate innovation and facilitate investment. Although the federal government has the power to legislate ‘intellectual property rights’ as listed in the constitution, the provincial governments should also be involved at the state level to promote, publicise and strengthen the intellectual property rights regime.
Upreti is an advocate
Pratyush Nath Upreti, 'Hey, I made that', The Kathmandu Post, 29 April 2018
2. Brief Analysis Of Nepal’s First National IP Policy-2017
Earlier this year, the Nepal Government released its long-awaited first national intellectual property policy, after becoming the first least developed country (LDC) to join the World Trade Organization (WTO) on 23 April 2004.
The National Intellectual Property Policy of Nepal, released on 6 March, is available here [pdf].
During the accession negotiation of the WTO, Nepal presented an ‘Action Plan for Implementation of the Agreement on Trade Related Aspects of Intellectual Property Protection’ which highlights the actions already taken by Nepal and future roadmaps to develop an IP system within an estimated timeline.
Unfortunately, the action plan, suggesting drafting of the national IP code, never came into practice. Being an LDC, Nepal enjoys the status of the transition period under the TRIPS Agreement and has been receiving technical support from the World Intellectual Property Organization (WIPO).
Nepal is in the midst of a political transition, and with its low level of economic and social development, it has remained behind in protecting IPRs.
We have two major pieces of legislation: the Patent, Design and Trademark Act 1965 and Copyright Act 2002, enacted before Nepal became a member of the WTO. These laws are outdated and do not address the recent challenges brought through technologies. Therefore, Nepal needs legislative reforms of its IP laws and most importantly intellectual property awareness should be an utmost priority. IP was not a priority for the government until recently, as the increasing IP disputes, growth of business, and the recent promulgation of New Constitution received government attention. In 2015 Nepal took a historic decision to include ‘intellectual property’ within the fundamental right chapter of the newly promulgated constitution of Nepal. According to Article 25:
“Every citizen shall, subject to law, have the right to acquire, own, sell, dispose, acquire business profits from, and otherwise deal with, property”
Explanation: For the purpose of this Article, “property” means any form of property including movable and immovable property, and includes an intellectual property right.
I am sceptical about including intellectual property within the fundamental right chapter of the constitution, considering the changing landscape of the intellectual property system, which has become an integral part of trade, the regulatory system, and investment. I personally see intellectual property as a regulatory right rather than a property right.
The growing internet access and inadequate legal framework to address online copyright issues are the biggest concern for Nepal. The recently drafted National Information and Communication Technology (ICT) Policy looks promising in safeguarding intellectual property issues online. The recent promulgation of a new Constitution (2015) and recently conducted Nepal Investment Summit (2017) encouraged the government to prioritize intellectual property to improve the investment climate in Nepal. These were some of the collective reasons for the first national intellectual property policy, which aims to create a balanced IP system in Nepal with a vision of “creating a creative nation through preservation and provision of intellectual property protection.” The policy sets out following objectives: (i) To encourage protection, promotion and development of IP (ii) To develop a balanced IP system (iii) To create awareness about the social, economic and cultural aspects of IP (iv) To encourage the commercialization of IP (v) To strengthen the legal, administrative and human resources to ensure protection and enforcement of IP.
The policy mainly focuses on three aspects. First, it aims to revise the existing legal framework, recognize, and enact law related to geographical indications, petty patents, traditional knowledge/culture, integrated circuit, plant variety protection, trade secrets and biodiversity.
The legal protection for geographical indications/traditional knowledge is very important for a country like Nepal, it can be used as a tool for rural producers to enter niche markets which will contribute to improving the living standard through increased incomes. Second, it aims to introduce various programs to create awareness and promote intellectual property rights. Third, the policy addresses the need to curb IP infringement and recommends revising penal provisions under the existing legal framework. Furthermore, the policy establishes a National Intellectual Property Council consisting of members from civil society, ministries, and experts to facilitate and advise on policy issues. There are shortcomings in the policy too. The policy looks very general, and not issue based.
In 2015, Nepal successfully established a right to read campaign in collaboration with Electronic Information for Libraries and the Nepal Library and Information Consortium with an aim to pressure the government to ratify the Marrakesh Treaty on access for visually impaired readers. Previously, the government of Nepal was very enthusiastic about ratification and kept ratification of Marrakesh Treaty in its ‘priority list’ under a three-year action plan of the cabinet. Unfortunately, the subsequent government fails to realize the importance of Marrakesh Treaty and surprisingly the policy also doesn’t reflect the spirit of Marrakesh Treaty.
The policy is brought with good intentions and incorporates issues in the most comprehensive manner. To conclude, the policy promises the rainbow dreams, which entrepreneurs, authors, farmers, and the industry has been dreaming in recent years. If the policy is taken seriously and all the proposals are implemented, then Nepal will be able to create a balanced IP regime based on its social, economic, and cultural practices.
A detailed discussion of the policy is published in Journal of Intellectual Property Law & Practice, Oxford University Press (2017)
3. CATCH THOSE PIRATES
Apr 26, 2017-
The theme of this year’s World Intellectual Property Day which falls on April 26 is ‘Innovation-Improving Lives’. According to Global Innovation Index 2016, Nepal is in the 115th position among 128 countries which shows that we are lagging behind in building an innovative society. Last year, Nepal witnessed several cases of online piracy which aroused strong protests from the movie industry. The most widely publicised case was that of the film Chhakka Panja which was illegally copied and posted on Facebook. The perpetrator eventually committed suicide. Another case was that of the film Chha Ekan Chha. The perpetrator was identified but no action was taken, leading newspapers to report that he had been forgiven.
It would not be possible to make illegal copies of films without the involvement of the production team, but production houses are unwilling to initiate legal proceedings against team members. There is no lack of legal instruments and skilled enforcement mechanisms to control piracy, but what is missing is the will to act. The days are gone when the fear of police action was enough to deter potential perpetrators from engaging in copyright infringement. There is a need to prosecute pirates and take more cases to court.
Meanwhile, the movie industry has taken positive steps towards fighting piracy. The producer of the movie Dreams, which was directed by Bhuwan KC, reportedly agreed to settle a copyright case in return for a payment of Rs2.5 million from those responsible for leaking it. This is the highest compensation amount received by a victim of piracy. This is a good precedent for Nepal’s cinema industry. Another important achievement last year was the licensing agreement made with Ncell for use of musical works as caller ringback tone (CRBT). A similar licensing agreement was signed with Nepal Telecom in 2014. This ensures economic rights to authors and provides an incentive to create. Perhaps, the Collective Rights Management Society should exert pressure on the Ministry of Physical Infrastructure and Transport and private transportation companies so that songwriters and musicians receive royalty when their songs are played on buses.
There have been few attempts to develop intellectual property laws and policy after Nepal became a member of the World Trade Organisation (WTO). When the protocol on the accession to the WTO was ratified, there was the Patent, Design and Trademark Act 1965 and the Copyright Act 2002. They remain the main laws governing intellectual property rights. They have not been updated to incorporate technological advancements. Recently, the government endorsed the National Intellectual Property Policy 2017. It was issued right after the investment summit held last March. The policy aims to achieve economic prosperity by preserving, using and protecting various aspects of intellectual property. It highlights the need for a legal framework for geographical indication, plant variety protection, trade secret, biodiversity, integrated circuit, traditional knowledge and traditional cultural expression. This is an important step because Nepal possesses a wealth of geographical indications and traditional knowledge because of its geo-climatic condition. Moreover, geographical indications can be a tool for rural producers to enter niche markets and improve living standards through increased incomes.
Similarly, the policy aims to create a single integrated nodal department which will manage all administrative work regarding intellectual property rights. Disagreements among ministries to create a nodal intergraded intellectual property department reportedly delayed the Intellectual Property Policy for years. It is noteworthy that the policy has suggested enacting laws related to petty patents or utility model which are the second tier protection for minor inventions. Utility model protection is granted without a very detailed examination and it doesn’t have a higher novelty threshold like patents.
This is important for a country like Nepal because the nature of innovation depends on the socio-economic status and research and development. Therefore, the utility model law will be a stepping stone for creating innovative societies and utilising the capabilities of entrepreneurs and small scale industries. The policy has also suggested improving enforcement of intellectual property rights through civil and criminal sanctions. There are shortcomings in the policy too. It is very general and not issue based. Even then, if the government is committed to enforcing it, it will lead to important reform in the area of intellectual property in Nepal. The Nepali cinema industry has scaled new heights, and movie makers are actually making profits. This is something unheard of in the past. In the 1990s, the music industry had made great strides too, and sales had soared. Unfortunately, lack of skill, laws, resources and awareness to tackle proliferating piracy killed the market. Therefore, the movie industry should learn from the past and work to bring reform in Nepal’s intellectual property system and, most importantly, copyright laws. Certainly, the National Intellectual Property Policy is a step in this direction. If the government is genuinely devoted to the policy, the outcome will be rich and vibrant.
Upreti is an advocate
4. INNOVATIVE MINDS
Article on IP status of Nepal on the occasion of World IP Day-2016
Every year, April 26 is celebrated as World Intellectual Property Day to promote discussion of the role of intellectual property (IP) in encouraging innovation and creativity. Last year on the occasion of World Intellectual Property Day, I wrote a piece titled ‘ Music & Lyrics’ in which I analysed the overall status of IP in Nepal. At the global juncture, there has been an outcry over IP issues on International Investment Agreement and the last WTO ministerial conference raised concerns about growing plurilateral trading system, which includes a substantial Intellectual Property Chapter. In this note, let’s examine where Nepal stands on IP.
Last year Nepal underwent an important development in that it promulgated a constitution, ending a prolonged political transition. The newly drafted constitution has a provision on IP. Article 25 (1) defines property as movable and immovable, including IP. This is interesting as there is no other contemporary constitution that has explicitly included intellectual property within the fundamental rights chapter, although the US constitution has a provision referred to as Patent and Copyright Clause. However, at the global level, scholars are sceptical about including IP under the fundamental rights chapter because of the changing landscape of IP and because treating it as a regulation or property is a matter of debate.
Another important development was the establishment of a right to read campaign to create public opinion and pressure the government to ratify and implement the Marrakesh Treaty into National Copyright Law. The main goal of the Marrakesh Treaty is to end ‘book famine’ by mandatory limitations and exception provisions in domestic copyright law for the benefit of the blind, visually impaired and otherwise print disabled.
At the international level, there has been a shift in enforcing IP rights through Investor State Dispute Settlement under Investment Agreement. This is a growing concern, which was debated across the globe last year. Moreover, developed countries have realised that negotiations have become very weak at the WTO. As a result, they have felt the need to go beyond the WTO to address their interests and have opted for International Investment Agreement (IIAs) as an important tool. The recently concluded Trans-Pacific Partnership Agreement (TPP) has been an important concern for developing countries. Such an agreement is not in the interest of a developing economy. Many scholars have argued that the last WTO Ministerial Conference may result in the death of the Doha Development Agenda. Furthermore, the developing and Least Developed Countries (LDCs) were disappointed with the recently concluded Ministerial conference. Even though the conference adopted the ‘Nairobi Package’ including Ministerial Declaration outlining the package and the future of the WTO, it failed to reaffirm the ‘Doha Development Agenda’, which is the biggest concern for the developing countries. In other words, it opens a door for the wider acceptance of agreements on investment and trade such as the TPP and Transatlantic Trade and Investment Partnership (TTIP) and acknowledges that the global trade rule would be formulated outside the multilateral trading system.
One must understand that IP was never a priority for the government but in light of growing business and development, it cannot remain ignorant of the importance of IP. Also, being a LDC, Nepal must utilise the flexibility under the Trade Related Aspects of Intellectual Property (TRIPS) Agreement and should formulate its unique regime. Moreover, Nepal should focus on ways to encourage its agricultural products and geographical indications would be the best way to promote local heritage globally. Additionally, the geo-climatic condition would ultimately improve rural economy.
In the last few years, political instability has discouraged research and development. There is a strong opinion that the country needs to move ahead to achieve economic prosperity after the constitution’s promulgation. Nepal hopes that the bilateral investment promotion and protection agreement (BIPPA) would attract foreign investors. BIPPA includes IP within the definition of investment. Therefore, without a proper IP regime, such an agreement may create additional burden for the state, as IP rights are an integral part of a regulatory system including taxes, investment, regulations, trade policies, etc. So, there is a need for a concrete national IP policy. Before signing agreements such as BIPPA with Qatar, China and others, Nepal should formulate a concrete IP policy.
To conclude, this year Nepal has made some important commitments on IP. In March this year, Nepal accepted the protocol amending the WTO’s agreement on TRIPS, which allows countries to manufacture and export medicine to countries that cannot produce them themselves. This is a very positive initiative from Nepal to reaffirm the principle incorporated in the Doha Declaration into the TRIPS Agreement. Additionally, during Prime Minister Oli’s recent visit to China, a memorandum of understanding was signed to strengthen the IP system in both the countries. With these positive developments, Nepal should move ahead and revise the existing legal framework, and most importantly, take the initiative to make people and local entrepreneurs aware about IP and its role in protecting their intellectual creation.
Link to the article: Pratyush Nath Upreti, Innovative Minds, The Kathmandu Post, 26/04/2016
RIGHT TO READ
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 Economic, Social and Cultural Rights (ICESCR). For example, Article 26 of the UDHR states that “everyone has the right to education”. Similarly, other international conventions have also reaffirmed the importance of the right to education. Generally, the right to education is understood as an obligation of a state to provide free education up to secondary level. However, under rights-based analysis, the right to education gives rise to other several rights associated to it. So it is often called an ‘empowerment right’, which means that it is a facilitator or medium to achieve other forms of human rights. Therefore, the right to read is one facet of the right to education. There can be no right to education if there is no access to textbooks or other reading materials. Likewise, the right to read also seeks support from freedom of speech and expression. Professor Lea Shaver writes about three dimensions of the right to read in her work, ‘The Right to Read’ (2015). First ‘liberty’, where she emphasises the right to read as a freedom to read and write in one’s preferred language. Second ‘capacity’, where she asserts that freedom to read and write cannot be exercised unless a person possesses the practical ability for it. Third, and most important, ‘availability’, where she argues that the liberty and capacity to read become meaningless unless a person has access to reading materials.
End the book famine
In 2013, the ‘Marrakesh Treaty to Facilitate Access to Published Works for Visually Impaired or Otherwise Print Disabled Persons’ was signed as an International Treaty to update international copyright laws. It was a result of intensive lobbying from the World Blind Union and developing countries, particularly India. According to the World Blind Union, more than 90 percent of all published materials cannot be read by blind or print-disabled people. The main goal of the Marrakesh Treaty is to end ‘book famine’ for the benefit of blind, visually impaired and otherwise print disabled persons (VIPs) by mandatory limitations and exception provisions in domestic copyright laws. There are two important features of the treaty. First, the ratifying countries must introduce a limitation and exception provision in their domestic copyright law. It means that the law must allow VIPs and their organisations to make accessible format books without the permission of the author or the copyright holder. Second, under certain conditions, the ratifying countries must also allow the import and export of accessible format copies without permission of the copyright holder. Similarly, the treaty enhances cross-border accessibility of format books between authorised entities and also allows digital unlocking on e-books for accessibility of visually impaired people. This will create greater access of books in different formats and help disabled people at large.
Case of Nepal
According to the National Population and Housing Census 2011, about two percent of the Nepali population suffers from some kind of disability—0.36 percent is blind/partially sighted, 0.3 percent is deaf/hard of hearing and 0.04 percent is both deaf and blind. In spite of these small numbers, the VIPs’ right to access reading materials in the desired format is important. Last month, Nepal successfully established a right to read campaign in collaboration with Electronic Information for Libraries and Nepal Library and Information Consortium. The main goal of this campaign is to create a public opinion and work together to pressure the government to ratify and implement the Marrakesh Treaty into the National Copyright Law. To its credit, the government has kept ratification of Marrakesh Treaty in its ‘priority list’ under a three-year action plan of the Cabinet. Likewise, the government has given importance to the treaty by including it in its human rights action plan as well. These are positive signs. Moreover, there are also talks to amend the Nepal Copyright Act to address digital copyright issues. We are confident that such an amendment will also include the spirit of the Marrakesh Treaty. Though the treaty only deals with blind, visually impaired and print disabled, Nepal should be courageous enough and seek to address the difficulties faced by people with other form of disabilities too.
Reading is crucial to gaining knowledge. We cannot imagine our life without reading. Thus, access to reading materials in the desired format will not only disseminate knowledge but will also help in improving our literacy rate. As Kofi Annan, former Secretary-General of the UN rightly once said, “Literacy is a bridge from misery to hope.”. We hope Nepal’s new government gives utmost priority to the ratification of Marrakesh Treaty along with the right to read.
Link to the Article: Pratyush Nath Upreti, Right to read The Kathmandu Post, 18/10/2015
5. DISCUSSION ON THE MARRAKESH TREATY
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## copyright reform in Nepal### (9th September, 2015)
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##### (August 31, 2015)
6. COMMENTS ON DRAFT NATIONAL ICT POLICY, 2015
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. The draft was re-cently open for public consultation.
Previously, there have been few attempts to bring policy on Information Technology and communication. The proposed draft seems to be a very comprehensive document with an aim to promote e-commerce, Internet access among others. The one of the goals of the policy is to increase digital literacy skill by at least 75 percent and 90 per-cent penetration of broadband services with high speed by the end of 2020. No doubt, the draft seems to be very promising, aiming to address all the contemporary issues related to information technology and communication. However, there are few as-pects, which are left out or need more attention. For example, at paragraph 7.4.7, the document emphasis on ‘an enabling regulatory framework will be created addressing key issues of IPR, privacy and data protection, but there is not much in the way of elaboration in the document on this point. Although, the policy have inherited some of the OECD principles, but the draft is silent on how it will be introduced either through legislative protection.
Liability of Intermediary
The draft policy lacks any clear direction on the issue of liability of Internet interme-diaries, such as those providing Internet access services, and those providing hosting services or websites, with regard to the traffic that they carry and the content that they host. Getting this right will be critical.
There are two main schools of thought on this area of law. In several jurisdictions, considering the difficulties in tracing user in cyberspace, ISPs are held liable for the action of third parties subject to certain condition. Mostly, ISPs are held liable be-cause: (i) actual perpetrators cannot be traced as Internet allows user to remain anon-ymous (ii) the actual perpetrator may not be able to compensate the damages, so for litigation it is economically viable to hold ISP liable. The draft policy has only one reference under para 12.21.7 on ISPs, which does emphasis on ISPs assisting an indi-vidual in indemnifying whether their computers have been compromised or to protect from future attack. The draft policy clearly fails to identify the existing problem with respect to liabilities of ISPs. The liability of ISPs becomes more important, as the draft policy substantially aims to promote e-Trade and E-Commerce activities in Ne-pal. Therefore, encouraging e-commerce or e-trade without proper reference to ISPs will make e-commerce unregulated and may promote counterfeit goods. Particularly, lack of ISPs role and responsibilities will encourage the violation of Intellectual prop-erty rights, hampering right holder business. Therefore, there has to be a proper policy on liabilities of Internet service providers upon falling to control infringing goods or knowingly providing a forum for infringement. Additionally, proper ISPs regime is needed to also to address the issue of digital copyright. The draft policy seems to give high priority in protecting and enforce Intellectual property Rights through online, which have been referred on several occasions. This is something, which is apprecia-ble from policy maker’s but again past experience of several country encourage to have a proper balance of protecting rights of services providers and end users along with Intellectual property right holders. In addition, ISPs can be held liable as ‘pub-lisher’ for an online defamation case if the service provider had knowledge of con-tents of subject matter. This approach has been taken my several jurisdictions like United States and Europe. However, the recent experience of these jurisdictions wit-ness additional financial burden for the service providers for the monitoring process.
An alternative school of thought, borne out of the current and evolving situation in Europe, is to minimise the obligations placed on service providers, cautioning against starting from the position that intermediaries should be liable for the activities of their users since this is likely to create a regime which discourages investment and innova-tion in connectivity and new services. Instead, this position advocates broad protec-tions for intermediaries, protecting them from liability for the activities of their users. Affording appropriate protection for intellectual property is a factor in the inevitable balancing act, but it is only one factor, and any approach which burdens service pro-viders with obligations to protect others’ business models must be thought through very well, as an imbalanced regime is likely to discourage providers from creating exciting new services which make the most of the proposed new high speed infra-structure. This is not an easy balance to get right; it is has been the subject of ongoing debate within Europe for many years and is far from settled.
Thus, Nepal needs a clear policy document on Internet service providers balancing both the interest of services providers and their end users along with intellectual prop-erty right holders.
Lesson from Europe
In Nepal, the Information and Communication sector is in nascent phase of develop-ment. Nepal can learn from European experience, Europe has gone through a radical change in its communications environment over the last 12 or so years and continues to adapt its approach. One of the key considerations for the Ministry is likely to be around competition in the provision of high-speed communications services, and the extent to which private companies can become involved in providing communications services. Competition is critical in Europe for encouraging innovative new services and for putting pressure on prices to help consumers get the best deal. To maximise the potential for competition, Europe has adopted an authorization scheme which does not require a licence to operate; instead, any provider can offer a communications service provided that they comply with a set of published rules. This was a radical change to the previous licensing regime.
An area of particular focus at the moment in Europe is that of privacy online, and the evolving thinking as to whom should be responsible for what: should, for example, there be a “right to be forgotten” online, giving individuals the right to demand that search engines must not show results for postings they have made online, and poten-tially posts which others have made about them. In a similar vein, Europe is looking to strengthen its rules on the processing of personal data, to give users more control over how companies can use their information. These are important issues to consid-er, and answers are not easy or obvious, especially given the global nature of the In-ternet, and the likelihood that many users rely on services provided from foreign countries, where the reach of their home country’s laws may be limited.
There will be many other issues to consider, including rules around security of ser-vices, and how, if at all, Nepal might seek to treat a (perhaps inevitable) increase in use of over the top communications services and VoIP but, above all, the Ministry’s proposed plan presents an exciting opportunity for Nepal.
If the Ministry of Information and Communication can deliver to its proposed Nation-al Information and Communication Technology Policy, the outcome should be rich and vibrant communications touching many areas of life, including business and commerce, education, social pastimes and enjoyment, as well as healthcare and gov-ernment. As a vision for the future, it is impressive. Inevitably, careful thought will need to be given to the detail of implementation, and we suspect that much work will lie ahead for the Ministry in this regard.
Upreti is Kathmandu based Lawyer
Neil Brown is a communications lawyer based in the United Kingdom
Link to the Article: Pratyush Nath Upreti & Neil Brown, Fine Tune it, The Kathmandu Post, 19/08/2015
7. POLITICS OF SMOKE
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 among women, particularly pregnant women, causing serious health problems.
To minimize tobacco consumption, Nepal introduced plain packaging policy after ratifying the World Health Organization Framework Convention on Tobacco Control (WHO FCTC), an evidence-based treaty that binds ratifying countries to maintain highest standard of health. Basically, 'plain packaging' aims to control tobacco consumption by removal of all attractive and promotional features on tobacco package. Moreover, the Convention prohibits all forms of tobacco advertising, promotion and sponsorship that promote a tobacco product by any means that are false, misleading or deceptive or likely to create an erroneous impression about its characteristics and health effects.
Even though plain packaging aims at greater public good, tobacco companies are more concerned about marketing their products. The very nature of plain packaging imposes a limitation on use of tobacco-related trademarks. Tobacco companies argue that such measures are incompatible with Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
In 2012 Ukraine, Honduras and The Dominican Republic initiated WTO dispute settlement proceeding against Australia regarding the Australian policy on plain packaging. Later, in 2013, Cuba and Indonesia joined the dispute. Basically, the allegation against Australia was based on the premise that such measures will severely limit the trademark holder's legitimate rights.
In addition, it is alleged that there is no science behind tobacco ban. Last month, Ukraine, a party to the dispute, decided to suspend its WTO dispute over Australian's plain packaging measures for tobacco products, citing the absence of 'economic logic' in the dispute.
At a time developing countries are struggling to implement strict labeling requirements, South East Asian countries have successfully incorporated plain packaging provision under domestic laws. Nepal has set an example by having a very high standard of plain packaging. Previously, the provision whereby graphic images of cancerous mouths and lungs would have to cover 75 percent of packets of tobacco products was challenged in court by Surya Nepal Pvt. Ltd. The plea was rejected by the Supreme Court on the ground of public interest.
The government has realized public health concerns associated with such measures and last year introduced a new rule requiring 90 percent of surface area of all tobacco packaging to be covered with health warning. The new rules are consistent with the Interim Constitution where the state is obliged to improve the health of its citizens.
Similarly, in India, the issue of plain packaging was challenged in Love Care Foundation v. Union of India & Anr. The court acknowledged the impact of plain packaging on public, and said that the effect of plain packaging "will spread public heath measure and could prevent the packets of cigarettes and other tobacco products from being a market tool for advertising brand image and promoting smoking as a status symbol, at no cost to the government."
In the global context, there have been several attempts by tobacco companies to protest against the Tobacco Plain Packaging, with minimum support from the government. Most recently, international tobacco companies like Philip Morris have used investment law to claim compensation under International Investment Agreements (IIAs). The companies argue that such a policy is tantamount to expropriation of investments of tobacco companies. Furthermore, limitation on trademark use reduces the value of their brands and badly affects their investment.
Additionally, plain packaging has affected the goodwill of these companies, which was generated through the use of a trademark. Such measures deprive tobacco companies of opportunity to distinguish their product from a competitor and diminish the commercial values of their intellectual property and goodwill.
In Nepal, the tobacco industry is not a significant driver of the country's development. Therefore, attempts by tobacco companies to protect their brand's goodwill didn't garner wide support, considering what was at stake: the health of the public. Nepal has laudably introduced the landmark '90 percent' labeling policy, showing it is concerned about citizens' health, thus leading by example for other countries. However, there are enormous challenges when it comes to implementing and monitoring plain packaging, not the least the unregulated small manufacturers of tobacco products. Their activities need to be curtailed too.
Link to the Article: Pratyush Nath Upreti, Politics of Smoke, Republica,20/07/2015
8. MUSIC & LYRICS
Article on IP status of Nepal on the occasion of World IP Day-2015
Every year, 26th April, is marked worldwide as World Intellectual Property Day to ‘promote discussion of the role of intellectual property (IP) in encouraging innovation and creativity’. This year, theme of world IP day 2015 is ‘Get up, stand up- for music’. In recent years the music industry has been facing serious problems of copyright infringement through digital media and increasing cross-border piracy.. Let’s examine where Nepal stand on Intellectual Property rights.
In my previous contribution to the post, titled “Mind gains” (February 2, 2014), I have analyzed overall status of Intellectual Property in Nepal. It’s very unfortunate to say that, not thing have changed than previous year. Nepal still lag far behind in protecting Intellectual creation. According to the International Property Rights Index (IPRI) 2014 global ranking, Nepal remains the weakest in protecting Intellectual property, by securing 78th Position out of 97 countries. Similarly, Nepal ranks 14th in the Asia out of 16th countries. Similarly, last ten years filling trend of intellectual property is also not encouraging. It shows, Intellectual Property has been very much ignored in Nepal. At present, there are two barriers to development. First, inadequate legal instrument and second, lack of awareness and expertise in the subject. At most, music industry has suffered a lot.
Power of Music
Historically, music has played a major role in democratization of culture and language and to a extend medium to communicate with people. For example, during Maoist insurgency, they used music to communicate with people and in a way seek their support. During the era, Maoist had their own FM station, where songs played to spreading the message of equality, rights and inclusiveness among others. It actually helped the moist to spread their agenda and also received support to some extent. Similarly, during Jan-Anadolan II, patriotic music was often played in rallies and protest show the unity among the people. Likewise, music has also helped the Indigenous community (Janjati) to advocate their rights and their cultural identities by playing music at several event to show that their language were part of Nepali culture. Therefore, music have played significant role in our society and it’s very important to create an environment where artist can get fruits of their labour and encourage creativity. When music is created, its not only singer, songwriter, musician, publishers, arranger and many others are involved in creativity. At the moment, music industry is suffering from rampant piracy.
Creativity versus Piracy
Music industry in Nepal is small but growing. However, the hindrance of its growth is piracy. South East Asia is considered to be one of the pioneers in music piracy and Nepal is no exception to it. Unlike China, Nepal does not have cultural root of ‘copying’, but in recent years the copying and buying pirated songs/music have been so habitual, that we prefer pirated. This habitual practice has severe impact not only on music industry but also to artist. In Nepal, an artist cannot imagine to live his life on sale of music. Their earning is mostly depends upon the music concert. Till recent years, piracy was witnessed through pirated CD/DVDs and portable medium like pen drive etc. The beauty of music industry is it’s changing music. Like taste of music has changed, similarly the medium where it is distributed and consumed has also changed. Recent Nepal Telecom data shows, 38.78 percentage of population have access to Internet. The Internet plays an important role in piracy, it gives platform like YouTube to share pirated music/ movie. The recent victim of such online piracy was ‘Kohinoor’ movie, which was pirated through uploading sites like, YouTube. These problems are well identified previously, but not much of measures of have taken my government to cope with copyright infringement.
Nepalese Copyright Act, 2002 and Copyright Rules, 2004 were enacted in order to address new challenges in copyright and to ensure compliance with minimum requirement laid down by the TRIPS Agreement. The Copyright Act does not address any challenges faced by technological advancements; it’s an outdated copyright law with so much gaps that any infringer can easily bypass. Although the law has both civil and criminal remedies available to prevent infringement, the quantum of punishment is very low. Under criminal remedies, THE law prescribes a minimum fine of Rs 10,000 up to Rs 100,000, six-month imprisonment, or both. It looks as though the copyright infringer does not have much to be afraid of. The law needs to be amended to address several issue of digital copyright. For example, the liability of Internet service provider upon failing to control infringement goods or knowingly providing forum for infringement. Enforcing copyright itself is challenging, and now with digital media, it had made more difficult. However, problem does not lies on legal remedy, the right holder must be aware of the situation and should act to curtail the infringement. Unfortunately, there are instances were right holder even after identifying the culprit, have let them go. Such acts certainly encourage piracy and perceptions of pirated use get more habitual.
No doubt, piracy is important issue to be addressed. The broader concerns, lies on overall development of Intellectual Property rights, which is very much overlooked by the government. Nepal lack’s laws on Geographical Indication, Plant variety/breeder’s rights, which would be tool for rural development. Due to lack of laws, the potential geographical indications like Iiame Chiyaa(IIam tea), Jumli marshi (rice from Jhumla), Nepali Kagaz(hand made paper) etc which is exported worth of millions in international market particularly, United States and Europe, is on verge of getting genericide. Considering the geo-climatic condition of Nepal, Geographical indication will act as a tool by which rural producer can enter into niche markets which will contribute to improving living condition through increased income. In addition, Nepal has also failed to protect traditional knowledge and indigenous skills.
Furthermore, political instability has discouraged research and development. Although Nepal hopes that bilateral investment promotion and protection agreement (BIPPA) would attract foreign investor. From IP aspects, only concern with such agreement is that the definition of investment includes Intellectual Property. Therefore, without proper IP Policy, such agreement gives burden to state. As IPRs are integral part of regulatory system including taxes, investment, regulations, trade policies. So, there is need of concrete national IP policy. Although intellectual property grows when there is more investment vis-a-vis research and development. But it cannot be ignored that small-scale industries are very much growing and are unaware of intellectual property, which would be used to protect their product from competitor as well as helps in branding the products.
Thus, current Intellectual Property situation of Nepal is very painful. The present laws are below the minimum standard and few aspects of IP are still not protected and existing enforcement is very weak, overall discouraging innovation and creativity. The fate of draft Intellectual Property Bill is unknown. Let’s hope this year, government comes with comprehensive IP Policy, which is of immediate need.
Note: This is extract of Article originally published in The Kathmandu Post, 26/04/2015 on occasion of World IP Day. Due to technical problem, article would not be accessed through online
9. MIND GAINS
Speaking at a memorial service for Nelson Mandela on Dec 10, 2013, South African President Jacob Zuma said, “There is no one like Madiba. He was one of a kind.” Indeed the South African president’s statement about the world’s greatest liberator who contributed so much to strengthening the values of human rights is very significant. Mandela is an inspiration for all mankind. Unfortunately, a controversy has arisen over the ownership and unauthorised use of the name Mandela since his death.
Nelson Mandela’s image, name and quotations have been registered under the proprietorship of the Nelson Mandela Foundation as per South African trademark laws. They are registered under several classes including jewellery, clothing, books and other products. Furthermore, other proprietors of the Mandela brand include the Nelson Mandela Children’s Hospital Trust, Nelson Mandela Metropolitan University and the Nelson Mandela Children’s Fund. Infringement and unauthorised use of this brand name was seen in South Africa in the form of commercial use of his image which has raised concern among his family. Following this prologue about intellectual property rights in South Africa, let’s examine where Nepal stands on this front.
Intellectual property rights (IPR) refer to the legal rights owned by individuals and organisations on inventions, designs, goods and other creations produced by intellectual activity in the industrial, scientific and artistic fields. Nepal is in the midst of a political transaction, and with its low level of economic and social development, it has remained behind in the protection and enforcement of IPR. However, the major concern is an inadequate IPR legal framework.
Despite Nepal becoming a member of the World Trade Organization (WTO) on April 23, 2004 and subsequently accepting the obligations under Trade Related Aspects of Intellectual Property (TRIPS), the legal and policy framework is still confusing. Article 35 (11) of the Interim Constitution states, “The State shall pursue a policy of giving priority to the development of science and technology with a view to bringing about prosperity in the country, and shall also adopt a policy of giving due consideration to the development of local technology.” This provision gives the responsibility of making the necessary arrangements for the protection and promotion of intellectual property to the state. In addition, intellectual property also comes under the purview of freedom of speech and expression guaranteed by the Interim Constitution.
However, under the present IPR legal regime, we have two major pieces of legislation in Nepal: Patent, Design and Trademark Act 1965 and Copyright Act 2002. In addition to this, we have three ancillary legislations which are related to IPR. We do have a pending Intellectual Property Bill, but it is inadequate and lacking in several aspects. At the international level, Nepal is a signatory to 33 memberships including multilateral, bilateral and regional economic integration treaties.
The question is: Are our laws adequate according to these treaties? Do our laws address the challenges that arise due to technological advancements? Furthermore, a recent report of the UN Interregional Crime and Justice Unit (Unicri) says that organised crime groups have moved towards cyber crime and intellectual property theft because of weak enforcement making them highly profitable. So are our laws adequate to challenge such issues?
Besides legal reform and advocacy, there is also a need to develop a manufacturing-friendly environment. How can the IPR regime be developed when there is no research and development? Most importantly, Nepal is very weak on the supply front. We are highly dependent on imports. This unfortunate situation is a cumulative result of several factors, mainly political instability and electricity shortage. In addition, we have witnessed much interest in short-term investments like real estate. Recent trade status reports clearly indicate that there is an imbalance between imports and exports.
According to the Intellectual Property Index Rights (IPIR) global ranking, Nepal is in the 95th position out of 130 countries. Similarly, Nepal ranks 113th out of 130 in the legal and political environment category. When the legal and political environment is in such turmoil, it is certainly silly to expect much development in the country. However, that does not mean that we should remain as bystanders waiting for things to happen. Thus, we need good brains to bring up issues to make the most out of Nepal’s geo-climatic condition. In a least developed country like Nepal, geographical indication can be used as a tool for rural producers to enter niche markets which will contribute to improving the living standard through increased incomes.
Geographical indication has a great economic potential, specifically rural development potential. Till date, we haven’t recognised its potential, unlike in India. After the Basmati rice saga, India opted for full protection for geographical indication by ‘sui generis’ (of its own kind) legislation. After that, potential products like Darjeeling tea were registered as geographical indication, which has helped rural communities to raise their living standards. So it’s high time we had sui generis legislation for geographical indication.
In need of laws
Similarly, Nepal is one the richest countries in the world in terms of biodiversity, but we have not been able to exploit its advantages because of an inadequate bio-diversity legislation. And because of lack of a proper regulatory framework, plant breeder and farmer rights have not been secured effectively. It is very unfortunate that we have not been able to protect traditional knowledge and indigenous skills. We need strong legislation to protect these issues. People often see IPR as a capitalistic issue, but I believe there are many human rights issues involved.
How much have we benefited from the WTO? How can we benefit from TRIPS? Did we benefit from the recent WTO Ministerial Conference held in Bali? No matter how many international instruments we sign, we will never benefit from them unless we create an environment to enhance and encourage research and development. Along with legal reform, another challenge is awareness because lack of awareness about IPR means minimum interest in its protection. Thus there is a need for strong advocacy to secure intellectual property rights.
Link to the Article: Pratyush Nath Upreti, Mind Gains, The Kathmandu Post, 2/2/2014