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
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
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
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
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.
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
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
"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.