World IP Day is observed every year on April 26, and the theme for this year is “IP and Youth Innovating for a Better Future”.
As per the theme, the protection of Intellectual Property Rights (IPR) motivates the youth towards innovation and invention, which definitely contribute to a better future of the whole nation. Indeed, IP has been a driver of economic growth as it motivates new scientific innovations, ideas and inventions.
The TRIPS Agreement, 1994 is the most comprehensive multilateral agreement on intellectual property.
The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), negotiated in the 1986-94 Uruguay Round, had introduced intellectual property rules into the multilateral trading system for the first time.
And the Marrakesh Agreement establishing the World Trade Organisation (the WTO Agreement) is the most ambitious international trade agreement ever concluded.
Simply, IPR refers to those rights created by human intellectuals and ideas.
According to philosopher John Locke, the Earth and everything on it, common to all men, has as his property two things, namely, his person and what he has carved out of nature for him by dint of his labour and skill. The primary justification for granting limited property rights in the form of IPRs is that the grant benefits society by promoting innovation, creation and consumer protection.
Principally, IPRs have been categorised under two basic categories, that is, Industrial Property Rights and Copyright. Different conventions and human rights declarations have provisioned for the protection of IPRs. The TRIPS Agreement could also affect the transfer of technology under Multilateral Environmental Agreements (MEA). With the world globalising, Nepal became a member of WTO as its 147th state member – the first among the least developed countries (LDC) in Asia – on April 24, 2004.
It was an opportunity as well as a challenge for Nepal to be a member of the TRIPS Agreement and open up the policy of free trade and economic. As a least developed country, the TRIPS Agreement has provisioned some concessions for Nepal. After being a member of the TRIPS Agreement, Nepal is obliged to implement the provisions of the Agreement by enacting new IP legislation, reforming the existing IP legislation and developing its institutional capacity as per the commitments made under the agreement.
The Constitution of Nepal, 2015 has defined IP rights as fundamental rights under the Right to Property, Article 25 (3) Explanatory clause. In addition, Nepal formulated a National Intellectual Property Policy in 2073 B.S. with the objective of promoting economic growth through the protection of IPRs.
However, Nepal has not yet succeeded in enacting different IP-related laws for the protection of various IPRs as discussed in the policy. In the current scenario, the dimension of IP has been extended to geographical indication, trade secrets, traditional knowledge, biodiversity, farmers’ rights, artificial intelligence and many more.
While talking about domestic legislation for the enforcement of the TRIPS Agreement in Nepal, we enacted the Patent, Design and Trademark Act way back in the year 2022 B.S., which now is quite old and outdated and is not as per the spirit of the IP Convention, of which Nepal is a state member.
Regarding copyrights, a Copyright Act was enacted in 2059 B.S. Even the prevailing Copyright Act needs to be revised as per the new and emerging developments caused by the digital technology in the world. Thus, copyright protection needs to be expanded to the virtual world as well.
Nepal, as an LDC, has been facing serious problems in protecting IPR. They include a very old and outdated Patent, Design and Trademark Act, 2022 B.S., lack of enactment of necessary IP legislation incorporating all the emerging dimensions of IP, and an inefficient institutional mechanism for the administration of industrial property rights and copyright.
The draft has been under discussion at the concerned ministry for more than a decade. Due to the lack of new IP legislation, foreign direct investment (FDI) has been hardly hit.
To attract huge foreign investment, a new and comprehensive Intellectual Property Law and establishment of a separate IP Office are a must. However, the transition period has been extended to 2034 AD by the TRIPS Council to meet its commitments. Nepal needs to show serious concern over this issue.
The administrative mechanism is another serious challenge for the protection of IPRs in Nepal.
The institutional mechanism responsible for the administration of industrial property rights is the Department of Industry (DOI) under the Ministry of Industry, Supplies and Commerce.
The DoI is also the focal point of the World Intellectual Property Organisation (WIPO) whereas the institutional mechanism for the administration of copyrights is the Copyright Registrar’s Office. A separate and autonomous Intellectual Property Office needs to be established with skilled and competent human resource to deal with matters related to scientific and technological development. Hope, the new draft on Intellectual Property Right (IP Law) will incorporate these provisions.
Recently, the proposal for Nepal’s graduation from an LDC to developing country status was forwarded to the UN General Assembly, which has set 2026 as the deadline for the purpose. Different concessions provided by the TRIPS Agreement to Nepal as a LDC will be adversely affected upon our graduation to the category of developing countries by the standard set by the UN.
The bitter reality is that we are lagging behind in fulfilling the commitments made under the TRIPS Agreement, for which the period of transition has been extended one more time till 2034 AD. By losing all the concessions provided by the TRIPS Agreement (and other trade benefits as well), does Nepal set to benefit by graduating from an LDC to the category of developing countries? Khanal is Assistant Professor at Kathmandu School of Law, PU
A version of this article appears in the print on April 26, 2022, of The Himalayan Times.