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Developing national intellectual property policy for Bangladesh

Developing national intellectual property policy for Bangladesh

  1. Introduction:
    Human beings from their civilization used to invent many things for
    their comfort of life. In ancient times, in a Greek colony named Sybaris, the
    inventor of new food recipe was granted one year exclusive right for the
    recipe. 1 With the growth of civilization this ancient form of protection
    turned out to be a vital demand of the time. Today the general belief is that
    Intellectual Property is crucial to the economic, social and technological
    development of a country.
    And “in this new millennium, the Intellectual Property (IP) community
    has entered a new era characterized by the rapid expansion of demand for new
    forms of intellectual property protection, greater global coverage and
    unprecedented growth in the exploitation and use of intellectual property
    rights. Significantly in the knowledge based new economy IP is no longer to
    be perceived as a distinct or self- contained domain, but rather as an important
    and efficient policy investment that is relevant to a wide range of socioeconomic, technological and political concern. 2 Recent years have witnessed
    increased attention to intellectual property considerations in the policy making
    mainstream at both international and national levels, in a wide range of legal,
    technological, economic, commercial and social fields. Developments in these
    fields increasingly effect international co-operation in intellectual property,
    which can no longer be viewed as a distinct or self-contained domain.
    Moreover, intellectual property issues and concerns are becoming increasingly
    integrated with other global issues.
  2. Intellectual Property Defined
  • Shima Zaman, Lecturer of Law, University of Dhaka. 1 World Intellectual Property Organization (WIPO), Introduction to Intellectual
    Property: Theory and Practice at p. 580. 2 P. G Mankind, Secretary, Dept. Of Industrial Policy and Promotion, Ministry of
    Commerce & Industry, Govt. of India, India. “Building Synergies in the
    Modernization of Intellectual Property Administration, Development of skills and
    the teaching of Intellectual Property Rights”: Paper presented at WIPO SubRegional Forum on Intellectual Property Cooperation among Member States of the
    South Asian Association for Regional Cooperation, held in March 20 and 21,2001,
    Dhaka, Bangladesh.
    110 9:1&2 (2005) Bangladesh Journal of Law
    Jeremy Philips & Alison Firth say that intellectual property has two
    meanings, one colloquial and other legal. 3 The colloquial description of
    intellectual property is that it simply comprises all those things, which
    emanate from the exercise of human brain, such as ideas, inventions,
    poems, designs etc. The legal description of intellectual property differs
    from colloquial one and it focuses on the rights, which are enjoyed in the
    produce of mind, rather than upon that produce it. For example, we call a
    piece of land or a motor car ‘property’ not because it is solid, but because
    individuals or legal entities such as companies can assert a right in it against
    other persons. Intellectual property rights may be defined as legal devices,
    which guarantee the exclusive right to exploit for a period a time “a
    prescribed body of knowledge, signs or symbols.” 4 There are many types
    of intellectual property rights, which dominantly include: patents, utility
    model, designs, trademarks, copyrights, industrial designs, trade secretes,
    technical know-how etc. According to the list of TRIPS agreement
    intellectual property rights cover the following areas: – (a) Copyrights
    and related rights (i.e., rights of performers, producer of sound recordings
    and broadcasting organizations) (b) Trademarks including service marks (c)
    Geographical Indications including appellation of origins (d) Industrial
    designs. (e) Patents including protection of new varieties of plants (f)
    Layout designs (Topographies) of integrated circuits (g) Protection of
    undisclosed information including trade secret and test data.
    With the exception of trademarks, the basic function of all types of
    intellectual property rights is the same. Regardless of type, the basic
    purpose of all IPRs is to encourage creative activity and the development
    of goods or knowledge to bring prosperity to the country.
  1. Obligation to Introduce Intellectual Property System
    “The thrust of intellectual property is today usually expressed in
    economic terms: the perceived need to enable creators and producers of
    knowledge-based commodities to capture the full or at least fuller, benefits
    of those commodities. In broad terms there are two models which address
    this objective in contemporary legal systems. The first, the protective
    model, creates a series of discrete protective laws, which give proprietary
    protection on closely defined terms. The second, ‘the state support model’
    3 Jeremy Philips & Alison Firth, Introduction to Intellectual Property Law, Third
    Edition, Butterworths-London, (1995). 4 Transnational Corporation and Management Division, Intellectual Property Rights
    and Foreign Direct Investment. New York: United Nations, (1993) at p. 8.
    Development and Necessity of Intellectual Property Laws: 111
    gives creators direct support or rewards, in one form or another, but allows
    relatively free appropriation by producers. Both models endeavor to
    encourage creation and dissemination of intellectual creations.” 5 The
    components of Intellectual Property system contribute to the social,
    economic and human development of a country. Industrial design
    protection encourages people with creative faculty to devote their talent
    and energy in developing new designs for products. This is particularly so
    in the case of consumer products including toys, garments, furniture and so
    on. Protection of trademarks enables consumers to obtain their products
    of the right quality, which they are accustomed to get identifying the
    product by the mark. Thus generally the IP protection is an incentive to the
    inventor or author, and this was the main reason for such protection in the
    early society. The enormous technological development of transport and
    communications has resulted in the globalization of trade and commerce.
    This globalization has made the intellectual property a subject matter of
    international concern.
    The international character of IP is recognized in the various
    international conventions, i.e., The Bern Convention, the Paris convention,
    The Universal Copyright Convention, The TRIPS Agreement, The Patent
    Cooperation Treaty etc. Among all these Conventions the TRIPS
    Agreement is the most important and vital one.
    The Agreement on Trade Related Aspects and Intellectual property
    Rights (TRIPS Agreement) has marked the emergence of intellectual
    property rights as an issue in multilateral trade negotiations. The link
    between the intellectual property system and the global trade has been
    brought into sharp focus by the TRIPS Agreement. Consequently
    unprecedented levels of growth and changes have been experienced about
    the demands on an effective internal intellectual property system, its
    explosion and development, its potential to serve economic and social
    TRIPS is the aspiration of the industrialized countries of the world.
    They forced the developing countries to initiate regulation with the clear
    objective of universalizing the standards of IPR protection, which they had
    incorporated in their legislation. The developing countries negotiated to get
    benefits from other trade-related issues and acquiesced in making
    important concessions in terms of reforms of their intellectual property
    5 DAVID I. BAIN BRIDGE, Cases & Materials in Intellectual Property Law, pp. 3-4.
    112 9:1&2 (2005) Bangladesh Journal of Law
    legislation. 6 The developing countries thought that the benefits of the
    agreement would outweigh the economic and social costs of the TRIPS
    Agreement. However, the wave of globalization created by the New World
    trading system is continuously forcing most of the developing and least
    developed countries of the world to implement IP legislation. Under the
    TRIPS Agreement as a member of Least Developed Country Bangladesh is
    obliged to implement IP laws by the 2006.
  2. Main Fields of Application of IP Rights:
    Types of IPR Subject Main Fields
    Patents New, non-obvious,
    industrially applicable
    Chemicals, drugs, plastics,
    engines, turbines, electronics,
    industrial control & scientific
    Trade Marks Signs or symbols to
    identify goods and
    All industries
    Copyright Original works of
    Printing, entertainment (audio,
    video, motion pictures), software,
    Integrated circuits Original layout designs Micro-electronics industry
    Breeder’s rights New, stable,
    distinguishable varieties
    Agriculture and food industry
    Trade secrets Secret business
    All industries
    Geographical origin of
    goods and services
    Wines, sprits, cheese and other
    food products
    Industrial designs Ornamental designs Clothing, automobiles,
    electronics, etc.
    Utility models Functional models/
    Mechanical industry
    Source: South Centre (2000), The TRIPS Agreement: A Guide for the South.
  3. Intellectual Property Laws in Bangladesh:
    Being one of the founder members of WTO, Bangladesh must
    introduce an Intellectual Property Rights Protection system in compliance
    with the TRIPS Agreement. Problem is with Bangladesh’s capacity and
    economic condition to bear the onslaught of intellectual property right.
    6 Carlos M. Correa, Intellectual Property Rights, the WTO and Developing
    Countries, The TRIPS Agreement and Policy Option. at p. 3.
    Development and Necessity of Intellectual Property Laws: 113
    The technological efforts in Bangladesh are negligible, which raises dispute
    about implementation of strong IP rights. Many claim that, if a country has
    no meaningful technological activity then for that country Intellectual
    Property Rights are irrelevant and not cost effective.
    However, the fact is, TRIPS is not a mere legal document. It comprises
    economic, environmental and social issues, and certain measures are
    necessary to cope with IP issues, TRIPS Agreement and WTO obligation.
    Bangladesh has few IP laws. All these IP laws are the enactment of the
    British colonial system and in a very premature form. All these laws
    provide for national treatment for its citizens as well as for foreigners who
    have filed an application for protection. But all these laws specially the
    patent law, do not specifically describe the inventions which will be given
    protection. Moreover in many cases the implementation process as
    suggested in the particular law is not effective leaving a concern of the
    international community. During the post liberation period no measure
    was taken to remove the anomalies. The reason may be that the amount of
    technological invention in Bangladesh is negligible and demands no
    attraction. But with the emergence of the TRIPS Agreement it is obligatory
    to amend IP laws.
    The Copyright Ordinance of 1962 has been replaced by the Copyright
    Act of 2000. This Act of 2000 is the final step in the TRIPS
    implementation process. Copyrights are protected in most cases for 60
    years. Under this Act the government is under an obligation to establish a
    Copyright Office and a 6 member Copyright Board headed by a person
    qualified to be the judge of the High Court Division. This Act provides
    punishment for international violation of Copyright, which may extend
    from fine to imprisonment.
    Two other Acts are The Patent and Design Act, 1911 and The Trade
    marks Act of 1940. Here patent rights are granted for industrially
    applicable inventions that utilize a law of nature. Under this Act there must
    be a Patent Office, which shall be under the control of the Controller of
    Patents. However this Act is in rudimentary form and has not yet been
    amended as per TRIPS Agreement. To be noted, for the protection of
    patent right there exists in Bangladesh an amended Patent and Design Act
  4. The draft of the proposed Patent Act based on the TRIPS
    Agreement is still in the process of examination. It is not sure when the law
    will be finalized. However, information reveals that a draft has been
    prepared and submitted to WIPO (World Intellectual Property
    Organization). In the international periphery, as has already been
    mentioned earlier, Bangladesh is a member of TRIPS Agreement, WTO
    114 9:1&2 (2005) Bangladesh Journal of Law
    and also of WIPO. Bangladesh also acceded to The Bern Convention, but
    has not yet signed the Patent Co-operation Treaty.
    The government has completed the task of updating and revising the
    TradeMarks Act 1940. The draft of the Act provides provisions for nonregistration of any mark, which is contrary to any existing law or is likely to
    hurt the religious sentiment of any communities in Bangladesh. The draft
    also put emphasis on the regulation of the mark in Bangladesh for
    protection. The Law Commission has prepared the draft but the
    government has not yet taken, prepared steps to enact it.
    As a member of the group of least developed countries, the provisions
    of the TRIPS have to be implemented by 2005. It is not still clear whether
    review and updating of the laws would be completed by 2005. Few
    problems are very much associated with the whole process: firstly, level of
    skill and awareness of public in general, government officials and
    professionals is very low. Secondly, whether it would be sufficiently
    appreciated and supported by the economists and NGOs who are not so
    much expectant about the positive impact of TRIPS Agreement.
    Furthermore, certain provisions of TRIPS have given rise to
    widespread apprehension for Bangladesh, especially Article 27 which
    defines the patentable subject matter. Surprisingly, TRIPS Agreement
    does not constitute a uniform law. It provides a number of minimum
    standards that will substantially increase the degree of harmonization of
    intellectual property protection on almost a universal scale, leaving a
    considerable room for national laws to define a number of important
    aspects. 7
  5. Challenges for Bangladesh
    The developing and least developed countries expect that they should
    be benefited because of the synergistic impact of free trade and the
    consequence globalization. They thought that the benefits of different UR
    Agreements would outweigh the onslaught of the TRIPS Agreement. But
    the practical scenario is totally different. Confusion has overclouded the
    hope mainly because of the new interdependence generated in TRIPS. The
    concept of globalization propounded here does not necessarily reflect
    equal opportunities for all (scientific and technological experience differs
    from nation to nation) countries. The common apprehension is that
    implementation of TRIPS will be burdensome for the developing countries
    whose IP system is in a very rudimentary stage. So the developing
    7 Ibid, at p. 97.
    Development and Necessity of Intellectual Property Laws: 115
    countries like Bangladesh is needed to be ensured that implementation of
    TRIPS provisions will not lead to further deterioration in the economic
    situation of the country. Being a member of WTO, TRIPS and WIPO
    Bangladesh is committed to incorporate the TRIPS provisions in its legal
    system consequently she incurs an obligation to implement the TRIPS
    Agreement by 2005. Now it is still a question whether the review and
    updating of the laws would be possible within the specified period. The
    main points of concern for Bangladesh are- (1) TRIPS related obligation
    might lead to asymmetrical financial burden on the nation. (2)
    Pharmaceutical components may mark up the prices of their products
    many times compared to the cost of production taking advantage of the
    patent rights. (3) It is apprehended that TRIPS related regulations would
    become a new tool for exploitation of the developing countries. (4) If a
    country has no meaningful technological activity, where costs are likely to
    outweigh the benefits, then for that country IPRs seems to become
    irrelevant and Bangladesh is not out of this situation.
  6. Conclusion
    With the proliferation of knowledge and technology circumscribed by
    the rapid process of globalization intellectual property law has been the
    fastest growing part of law. This aspect of law bears significance for
    Bangladesh. Though we have some updated laws on the point yet they are
    not sufficient. The challenge thrown by the TRIPS agreement needs to be
    very cautiously dealt with. There should be a consensus and transparent
    idea about the real impact of the TRIPS agreement.