Ram Chandra Subedi

Nepal still lacks a competitive mechanism for proper implementation of intellectual property law.

There is no precise definition of intellectual property because it is a basket of different rights and is as diverse as human ingenuity. Intellectual property is a product of the human intellect. It may be an invention, a concept, a literary or artistic creation, a computer programme or process, a design, an industrial process or method, a unique name or brand or a piece of information which is confidential. Although “intellectual property” is relatively a recent term, it does not take much imagination to realise its importance because since its very basis is innovation, it has relevance since the first man stepped on the earth and discovered fire or invented the wheel. In recent years, this intangible property has been recognised by business as being an extremely valuable asset. Some companies entirely rely upon intellectual property for their profit. In short, intellectual property can be defined as the intangible or tangible results for the creative endeavour and innovation of human beings.

Intellectual property is at present divided into four main statutory categories and two common law categories. The statutes confer upon the owner of intellectual property a monopoly in the property protected. The categories are: Copyright and industrial design, which protect the physical form of literary, dramatic, musical and artistic endeavour. Computer software is included in this category. This is the area covering books, music and the performing arts, as well as sculpture, architectural drawings, buildings, designs, patterns and so on; patents, which protect inventions, and are the monopoly right granted by the state to an inventor for a limited period; trade marks, which protect names used in the course of trade and in the provision of services. A trade mark can be a name, a logo, a picture, a shape, or even a smell; passing off, which protects in common law the good will and reputation of business; and confidential information, where again under common law an obligation of confidentiality exists in relation to information imparted from one party to another.

Trademark is some type of sign, which distinguishes the product, or service of one manufacturer or service provider from another. The key feature of trade mark is that it is ‘distinctive’ of that product or service and no one else’s product, so that it serves as a ‘badge of origin’ and as a type of guarantee to the consumer as to the origin of that product. Patent systems protect a wide variety of technical novelties, from breakthroughs that will find new industries, to quite minor improvements in established products. Copyright, by contrast, is a right given against the copying of defined types of cultural, informational and entertainment productions.

In recent years, intellectual property has attracted a lot of attention. Its importance for international trading relations was emphasised during the negotiation that led to the successful conclusion of the GATT Uruguay Round on the world trading system. Intellectual property law is still in early stage in Nepal compared to most of the countries in the world. The current statutes in Nepal related to intellectual property are the patents; design and trademarks act 1965 and the copyright act 2004. After being a member of the WTO, Nepal has required more knowledge and practices on how to achieve more benefits and facilities from it. Nepal does not have a competitive mechanism and environment for the proper implementation of law and policy.

Patent Design and Trade Mark Act 1965 is an umbrella law that deals with intellectual property rights in Nepal, but this is not sufficient and still remains in a rudimentary form and does not carry any weight to compete with TRIPS Agreement. In this act, patent is defined as “any useful invention relating to a new method or process of manufacture, operation or publicity of any material or a combination of materials, or that made on the basis of a new theory or formula.” Definition of design and trademark is also limited and outdated in this law. Design is described as “the form or shape of any material manufactured in any manner” and trade mark is defined as “words, symbols, pictures or a combination thereof to be used by any firm, company or individual in its products or services to distinguish them from the products or services of others.”

The act has not defined invention, novelty, product, process, specification and so on. This act is out-dated to meet global standards. It should be amended to meet TRIPS Agreement as Nepal is already in the WTO. Copyright Act, 2002 is also insufficient, as it does not include all the definitions and categories of copyright for scientific works, discoveries, computer software, information technology and so on. The growth of trade competition around the world has brought more advantages to those who innovate. Intellectual property rights help to promote technically successful marketing schemes and to foster immense commercial returns. However, in Nepal, promotion, protection and public awareness of intellectual property cannot be found, and as a least developed country, Nepal is a beginner in this field. Nepal requires appropriate laws, rules, and policies to pave the way for intellectual property promotion and protection in compliance with the comprehensive multilateral agreements like TRIPS.

Subedi is a Supreme Court advocate