TRIPS Agreement and Bangladesh
Intellectual property refers to creations of the mind such as inventions, literary and artistic works, designs, and symbols, names and images used in commerce. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is the main international legislation dealing with different kinds of intellectual property rights (IPRs) i.e. patents, industrial designs, trademarks, copyright and related rights, trade-secrets, layout designs for integrated-circuits, geographical indications (GI) and plant varieties protection (PVP).
In Bangladesh, IPRs cover a wide range of ingenious works: inventions by patents, distinctive shapes by designs under the provisions of the Patents and Designs Act 1911; literary, dramatic and musical works by copyright under the Copyright Act 2000; business names and logos are protected by trademarks under the Trademarks Act 2009. In addition to that, distinctive goods famous for their special qualities or characteristics are protected by geographical indications under the Geographical Indication of Goods (Registration and Protection) Act 2013. Further, if someone performs in a song either as a vocalist or otherwise e.g. as a guitarist s(he) has some rights as a performer, and is entitled to protection under the Copyright Act 2000.
So far as the Patents and Designs Act 1911 is concerned, “any manner of new manufacture including an improvement thereof” is patentable. So the patentability criteria seem to be very wide and flexible. More so, it could be argued that even a new plant variety could be patented. However, the farmers are not able to patent their varieties, since their varieties have been in the public domain and do not fulfil the criteria of “novelty” to get patented.
Nevertheless, bio-pirates collect local varieties, put them into bio-prospecting and develop new varieties. Since the country is yet to formulate the provision on right to access to benefit sharing and disclosure requirement in patenting such inventions, the country's indigenous germplasm is in danger of misappropriation by the seed conglomerates.
Further, the Patents and Designs Act does not give the inventor of a design any right qua design, rather it gives copyright on designs. Again, the Patents and Designs Act has no provision for “petty patents” or “utility models” so as to encourage small inventions by the SMEs or even by the individuals.
Additionally, the country has no legislation to protect trade-secrets except under the general provisions of the Contract Act 1872 or the Competition Act 2012. The country also lacks legislation to protect layout design of topographies and integrated circuits or to prevent unfair competition.
As regards copyright protection, the Copyright Act 2000 seems to be archaic, for it does not offer provisions to combat online copyright piracy. Further, this Act has not adopted the principles of “prohibition of anti-circumvention” and “Digital Rights Management” (DRM) of the WIPO Internet Treaties for taking technological measures to control access and copy of copyrighted materials. Moreover, the Act has no provision for the protection of copyright in database and prohibition of deep-linking, meta-tagging or p-2-p transmission of copyright materials.
The copyright regime has also failed to delineate a minimum framework for the right to equitable royalty of the stakeholders in the music industry. In addition, in the absence of traditional cultural expression (TCE) law, our folk music remains unprotected.
As regards trademarks, the existing regime contained in the Trademarks Act 2009 seems to be incapable of regulating trademark issues arising out of e-commerce. Further, the Act has not elaborated the passing off action for unregistered trademarks. For this, businesses often find infringement of brands – distinctive not being registered or descriptive incapable of being registered but cannot successfully litigate the wrongdoers for passing off actions.
As regards GI, the definition of genericide in the GI Act 2013 seems to be very wide making the Bangladeshi GIs vulnerable to genericide since a GI can easily become generic. Moreover, the GI regime has made no provision for post-grant quality surveillance system.
With the development of the corpus juris of IPRs, cross-cutting IPRs issues like GI, traditional knowledge (TK), e-commerce and telecommunications have developed. However, the bifurcated IPRs management system, namely, the Department of Patents, Designs and Trademarks (DPDT) and the Copyright Office suffers from lack of coordination and expertise on cross cutting issues.
In addition, the Registrar of the DPDT is the only forum to dispose opposition disputes. Again, an appeal may be preferred to the government against his decision. However, the appellate authority may not have expertise on IPRs issues.
Furthermore, since Bangladesh has not signed and ratified the international treaties providing international protection of IPRs like PCT for patent, Madrid system for trademarks, Lisbon Agreements for GIs, the IPRs owners of the country will have to pay for respective foreign country's registrations fees otherwise their goods will be susceptible in the foreign markets.
Having said the above, separate laws should be enacted for the protection of industrial designs, utility models, PVP, cross-cutting IPRs, trade-secrets, preventing unfair competition, and integrating IP offices, and necessary amendments need be made to the existing laws. Despite the TRIPS' transition period until 2021 or 2033 for pharmaceuticals, the government should be serious to implement its TRIPS obligations in phases to develop a culture of IPRs protection and enforcement since it would not be possible to comply with the TRIPS overnight once the transition period is over. For better compliance, the country should focus on IPRs education to create awareness among the stakeholders. This awareness building would improve both IPRs creation and enforcement.
Finally, for effective IPRs protection and enforcement, there should be an appellate intellectual property tribunal comprising of intellectual property law experts, a special unit of law enforcing agencies for enforcing IPRs, and special judges for disposing of IPRs disputes. Until this is done, law enforcing agencies and judges dealing with IPRs should have appropriate training.
The writer is a Professor of Law at the University of Dhaka and teaches Intellectual Property Law.