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Local laws to protect the creations of "mind and soul"

Local laws to protect the creations of "mind and soul"

T HE protection of intellectual property rights is an important part of any legal

system governed by the Rule of Law.

Supporters of the Rule of Law in Cambodia will be pleased to know that the Ministry

of Commerce is in the process of drafting a number of laws intended to protect intellectual

property rights.

Most legal systems differentiate between two major categories of property under the

law: Immovable Property (called "Real Property" in common law systems)

and Movable Property (called "Personal Property" or "Chattel"

in common law systems).

Movable Property includes physical items such as automobiles and furniture, as well

as the subject of this column - Intellectual Property.

Immovable Property is generally defined as land and anything built on, growing on

or attached to the land, such as buildings and other structures.

Intellectual Property is the creation of the mind and soul - an idea, a song, a poem,

an invention, a book, computer software, a theatrical production, a dance, a design,

or art. It is intangible or "incorporeal", meaning without body or material

nature.

This description is confusing to some because, as they rightly point out, the manner

in which this intangible creation of the mind is communicated is tangible - it has

a material form. For example, a musical composition is usually written down and then

performed and recorded on compact disk. An invention is usually produced in the form

of a material object, an article is printed in a magazine.

The law recognizes this dual nature of intellectual property and attempts to protect

both the intangible and tangible aspects of intellectual property.

Intellectual property rights are divided into three main categories: copyrights,

trademarks and patents.

A copyright is the right of the author or creator of a literary, musical, visual,

theatrical, or artistic production to prohibit others from reproducing or duplicating

the creator's production.

Copyrights are not indefinite, but usually limited for a period of years.

The copyright prohibits reproduction or duplications of the creator's work without

authorization from the creator.

A trademark is a distinctive symbol or words used by a certain organization or person

to uniquely identify the material or service produced by that organization or person.

A patent is the grant of a special right by a government to an inventor which gives

him/her the exclusive right under the law to make, use and sell his/her invention

for a period of years.

In Cambodia, the Ministry of Commerce is drafting three intellectual property laws

which extend the protection of the Rule of Law to these three categories of intellectual

property.

Patents

The "Patent and Design Draft Law" provides a mechanism by which inventors

can secure the exclusive right to use and produce their invention. The inventor will

be able to register their invention with the government and thereby receive the protection

of the law.

It defines two main types of patents: patents for inventions and patents for designs

or models.

Under the draft law, any invention may be patented if it (1) is new, (2) involves

an inventive step and (3) is industrially applicable, subject to a number of qualifications

and specific exceptions. For example, discoveries, scientific theories and mathematical

formulas may not be patented.

The draft Law details the procedures for obtaining a patent license and the criteria

used by the government to grant a patent license.

It grants jurisdiction for accepting and approving patent applications to the Ministry

of Industry. It also permits the transfer or assignment of the patent license, and

details the civil and criminal penalties for people who violate a patent license

held by another.

Trademarks

The "Trademark Protection Draft Law" protects both trademarks and "service

marks" (which are the unique identification symbol(s) or word(s) used by providers

of services, as opposed to a producer of goods).

The organization holding a license to a certain trademark will enjoy the exclusive

right to use the trademark for a period of years. However the holder will lose this

exclusive right if it does not use the trademark. The trademark rights may also be

assigned or transferred.

A trademark is defined as "any visible sign capable of distinguishing the good

or services of an individual or corporation from those of another individual or corporation."

Marks may consist of "signs such as words, letters, numbers, designs, colors,

and three dimensional forms."

Under the draft law, the Ministry of Commerce is the government entity responsible

for maintaining the trademark registry. However, a separate entity will be set up

to handle the licensing of trademarks. Until such agency is established, the Ministry

of Commerce will take on this job as well.

The draft law contains detailed provisions by which holders of trademark licenses

may enforce their rights against violators under civil, administrative and criminal

laws.

Copyrights

The third draft governing the protection of intellectual property is the "Draft

Law on Copyright and Similar Rights."

This draft protects the rights of authors and other creators or original works to

the exclusive use and reproduction of their work.

According to the draft law, the "author" of a "work" produced

by the author's mind enjoys an exclusive incorporeal property right, defensible against

all others.

"Works" are defined as all creations of the mind, regardless of their form

or method of communication, their value, or their purpose.

This encompasses, books, articles, sermons, dramas, dances, circus performances,

music, movies, paintings, sculpture, photography, illustrations, and computer software.

The draft law also contains detailed remedies that may be exercised by the copyright

holder or the state against persons infringing on the right, under civil, administrative

and criminal law.

All three draft laws are solid, comprehensive drafts that would significantly aid

the Rule of Law in Cambodia. They contain detailed, comprehensive provisions, good

definitions and adequate penalties to encourage compliance.

The more quickly these draft laws are enacted, implemented, and above all, enforced,

the better for the Rule of Law in Cambodia. Of course, intellectual property rights

are a notoriously difficult area for enforcement in developing countries. Enforcement

requires a strong will on the part of the government to use police power, the courts,

and administrative mechanisms together to enforce the law.

- David Doran is a principal of the law firm Dirksen Flipse Doran & Le.

DFDL has regional offices in Phnom Penh, Vientiane and Ho Chi Minh City. The information

in this article was taken from draft laws and should not be relied on as legal advice.

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