Asean’s fight for intellectual property rights

TA01083KUCHING: Patents, trademarks, copyrights – these are some the words used to describe an intangible form of branding culminated from the imaginative minds of people.

Enter the world of intellectual property, whereby one values an idea, brand or concept as a method of selling their goods and services.

IP is growingly recognised as a key driver of economic growth in a knowledge-based economy. Intangible assets, of which IP is a major component, has become a significant contributor to the value of companies worldwide.

This in turn fuelled the rapid growth and demand for IP rights worldwide.

Protecting intellectual properties in today’s world is especially important when one considers the ease of searching and copying an idea off another person in today’s world, used for their benefits without the permission of the original author.

By registering, intellectual property owners are given exclusive rights and protection for the intellectual property he or she created under the IP Law.

In Malaysia, intellectual property laws have been declared in compliance with the requirements of the World Trade Organisations’s TRIPs Agreement.

In fact, Malaysia has a plethora of laws in place to protect intellectual property, such as the Trade Descriptions Act 2011, Copyright Act 1987, Patents Act 1983, Trademark Act, Geographical Indications Act 2000, Layout-Designs of Integrated Circuits Act 2000 and the Industrial Designs Act 1996.

Within the country itself, the administration of patents, trade marks, industrial designs, copyright and so on is carried out by the Malaysian Intellectual Property Corporation (MyIPO) as a body under the Minstry of Domestic Trade, Cooperatives and Consumerism.

IP Gennesis Sdn Bhd Intellectual Property Consultant, Lawrence Tan told BizHive Weekly that most entrepreneurs are still not aware of the importance of registering their rights.

“I would say the awareness of protecting intellectual property (IP) in Malaysia still lacking. There are many companies or small and medium enterprises (SMEs) in Malaysia still eager to protect their IP, but the number is far from majority of the business community,” he lamented to BizHive Weekly in an email interview.

“There were many occasions people thought we are a property company when they see “Intellectual Property” and we had to explain in detail on what IP actually is.

“Some companies or SMEs also thought their trade mark is protected after they have registered their company name with Companies Commission of Malaysia (SSM). In fact, it does not work that way,” Tan further stressed on.

“Registration of company and registration of trade mark is under separate system, different Government Agency and different set of laws.”

“It is crucial because without protection or registration of IP companies are facing the risk of losing ownership of their IP. Competitors may “steal” and register their IP.

“Although there is a chance for original owner to re-gain ownership through legal action against the culprit, they will still have to spend relatively huge amount of litigation costs and long period of time for court process.

“This will create uncertainty to the prospect of their businesses.”

Without proper IP registration, Tan said business owners are also vulnerable when they wish to sue infringer because they will have difficult time or no evidence to prove they are the true owner of the IP.

“By that time, it will be too late for them to register their IP because it will take another process and period of time to register their IP.

“A lot of companies misunderstood that IP only serves as a defensive move. Actually IP could do more than that. Companies may licence or franchise their IP in order to earn passive income, for example, by collecting royalty fees and franchise fees from licensees and franchisees.”

 

What is Intellectual Property?

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.

IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.

 

Copyright

Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings.

 

Patents

A patent is an exclusive right granted for an invention. Generally speaking, a patent provides the patent owner with the right to decide how – or whether – the invention can be used by others. In exchange for this right, the patent owner makes technical information about the invention publicly available in the published patent document.

 

Trademarks

A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.

Trademarks date back to ancient times when craftsmen used to put their signature or “mark” on their products.   Industrial designs

An industrial design constitutes the ornamental or aesthetic aspect of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color.

 

Geographical indications

Geographical indications and appellations of origin are signs used on goods that have a specific geographical origin and possess qualities, a reputation or characteristics that are essentially attributable to that place of origin.

Most commonly, a geographical indication includes the name of the place of origin of the goods. Training – From IP basics to specialist skills.

 

Malaysia’s proactive move in protecting IP

Understanding the importance of this, the government back in 2007 enacted the National Intellectual Property Policy (NIPP), setting in motion the blueprint for policies and direction for all stakeholders to provide a healthy and vibrant environment that facilitates and promotes the creation, acquisition and exploitation of intellectual property, apart from strengthening its enforcement system.

This step signified Malaysia’s acknowledgement of intellectual property and its potential in pushing the economy forward, given the right concoction of law, enforcement and education towards innovation.

Many lauded the government’s “giant leap” towards a more efficient enforcement system when it established the Intellectual Property Courts in July 2007, marking  Malaysia one of the first countries in the region to have a specialised court discussing IP cases.

Meanwhile, a special task force was formed that year to tackle counterfeiting and piracy issues. The task force, formed within the Enforcement Division of the Ministry of Domestic Trade, Cooperatives and Consumerism was formed to strengthen the IP enforcement mechanism and works closely with other agencies to spearhead IP enforcement actions.

Another initiative is the collaboration between the Business Software Alliance and the ministry to implement a campaign to check offices at random to identify the use of illegal software.

 

Developed ecosystems in other countries

In other countries, IP ecosystems are very well-developed and matured, as examplified by the establishments of IP bodies. Take Singapore, for example, who plans to develop itself as a global IP hub in Asia.

“Notably, Asia is emerging as a new hotbet for IP activities,” said its IP Steering Committee in its Master Plan Report 2013. “Since 2010, East Asia has overtaken North America and Western Europe in the number of applocations filed under the Patent Cooprtation Treaty, which is used for the filing of patents in multiple jurisdictions.

Statistic of new IP filing in Malaysia in 2013

Statistic of new IP filing in Malaysia in 2013

IP activities across Asia is growing rapidly actoss the value chain – from IP creation, protection, exploitation and enforcement – as evidenced by the rise in gross domestic expenditures on research and development, IP filings, royalty and licensing fees, as well as IP disputes.

There have also been increasing cross-border transactions and a greater confluence of IP activities between the East and West. These changes are generating opportunities for Singapore to position itself as a global Ip hub in Asia — to play a facilitative, bridging role for regional and international transactions, and to provide a trusted, neutral platform to support the development and growth of the IP landscape in the region.

Singapore is well-poised for these oppportunities by virtue of its world-cladss legal and financial infrastructure, high quality workforce, and strategic geographical location. IP Gennesis’s Tan compared Malaysia’s listings with that of Singapore.

“It will be more interesting if we make the following comparison with Singapore. According to statistic from Department of Statistic of Singapore and Companies Commission of Malaysia (SSM), the number of companies or business registered in 2013 as follows:”

The IP consultant went on to analyss statistics on the awareness levels of IP protection here, comparing information from 2013.

“According to statistics from MyIPO, the trade mark filings in year 2003 is 17,766 whereas in year 2013 is 32,225.

“We can still see the numbers almos doubled and the awareness is increasing. However, we are of the view that it should be much higher.”

To better enhance this, Tan suggested for the relevant authority to continue reaching out to the public and organise more campaign to raise awareness on importance of IP.

“Apart from that, promotion of respecting others’ IP is equally important. They should encourage the business community to protect their IP by giving more incentives – perhaps by way of tax incentives, grant or subsidy.

“Further incentives may be given to those who show successful commercialisation of IP.”

Planters’ IP rights infringed by coming TPPA

Some regional moves like the Trans-Pacific Partnership Agreement (TPPA) brings about new laws which will greatly impact the IP of businsses. For example, on June 5, the Consumers’ Association of Penang (CAP) strongly called on the government not to join the International Convention for the Protection of New Varieties of Plants of 1991 (UPOV 1991).

This is a proposal in the TPPA requiring membership of UPOV 1991 by the participating countries.

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“However, there is growing concern globally that UPOV 1991 establishes an intellectual property system of “plant breeders’ rights” that favour developed countries’ corporate plant breeders and institutional researchers, at the expense of biodiversity and the rights and interests of small farmers and local researchers of developing countries such as Malaysia,” said SM Mohamed Idris, president of CAP.

For years, the Government had correctly decided against joining UPOV 1991 and this is appropriate at our current stage of research and development in agriculture, where formal plant breeding research is predominantly done by domestic public research institutions, he said.

It is also appropriate to safeguard the rights of the country’s small farmers to breed and develop new plant varieties and the potential of farmers’ varieties for future plant breeding.

“Malaysia already has the Protection of New Plant Varieties Act 2004 (PNPV Act). This fully meets our obligations under the World Trade Organisation (WTO)’s intellectual property rights agreement that requires protection of new plant varieties. There is no requirement for WTO members to join UPOV 1991.”

Joining UPOV 1991 would mean that the PNPV Act would have to be drastically changed in such a way as to strike at the heart of what makes the Malaysian law unique to meet the needs of our country, he highlighted.

“The parts in the PNPV Act that would be deleted in order to join UPOV 1991 include provisions that can protect against biopiracy of Malaysia’s agricultural biodiversity; provisions to ensure that our biosafety regulations are followed if a plant variety is genetically modified; a safeguard that allows small farmers to replant any commercial seed they have saved on their own farms without paying royalties; and a provision allowing farmers to exchange saved seed among themselves.

“Studies have shown that UPOV 1991 can adversely affect farmers who are dependent on farmer-managed seed systems (the informal seed sector) and the customary practices of freely saving, using, exchanging and selling farm-saved seeds.

“These are fundamental farmers’ rights recognised in international norms. In the case of Malaysia, the native communities of Sabah and Sarawak, among whom are many small farmers who have important local seed varieties, will be threatened.”

Meanwhile, Idris pointed out reports from the United Nations and agriculture experts showing that farmer-managed seed systems allow farmers to limit the cost of production by preserving independence from the commercial seed sector while the free exchange of seeds contributes to the development of crop diversity and locally appropriate seeds that are more resilient to climate change, pests and diseases.

Such systems have therefore contributed greatly to conserving, improving and making available agricultural biodiversity, which is the basis of food security. UPOV 1991 can go against farmer-managed seed systems.

“There are also potential adverse implications for Malaysia’s domestic public plant breeding research,” he added.

“The monopolisitc breeders’ rights that UPOV 1991 create can put public researchers in Malaysia at a serious disadvantage compared to foreign plant breeders. At the same time, our local seeds and plants researched by foreigners would end up being claimed by them at the expense of the nation.

“We are unaware of any effort by the government to consult our farmers on these important issues affecting their rights, livelihoods and food security.

“The government is already a party to the International Treaty on Plant Genetic Resources on Food and Agriculture, and must live up to that international commitment to implement farmers’ rights including their right to participate in making decisions, at the national level, on matters related to plant genetic resources.

“CAP, therefore, strongly calls on the government to immediately halt all processes to join UPOV 1991. In addition, the fact that the TPPA can be used to impose UPOV 1991 on Malaysia is yet another reason for the Government to immediately withdraw from the negotiations.”

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