Jivesh Jha / Nil Prasad Paneru
Imagine if there is a law put in place which precludes you to avail or seek benefits from the agricultural or natural products, like Lapsi or Yarshagumba, which are exclusively produced or found in Nepal. Where would you approach for remedy? It’s often said that you have an inherent right to use, produce, reproduce, repurpose or modify the things or properties which belong to you but it cannot if the property rights are unsecured. The same right is established on the intellectual properties if your intellect gives birth to a product which has some societal use.
The intellectual properties have various forms including patent, trademark, design, geographical indication and copyright. The government of Nepal under Patent, Design and Trademark Act, 1965 is responsible for making the policies ensuring the implementation of intellectual property laws.
Shared goals
Of late, the United States’ Millennium Challenge Corporations (MCC) Nepal compact has been courted in controversy for the MCC incorporates provisions that say they will prevail over the domestic laws of Nepal. Such provisions could have serious implications on the intellectual properties generated or produced in the country. The preamble of MCC is considered as a window through which aims and objectives of the legislation could be observed, clarifies that the compact obligates the parties, i.e., Nepal and the United States, to stand “committed to the shared goals of promoting economic growth and the elimination of poverty in Nepal and that MCC assistance under this Compact supports Nepal’s demonstrated commitment to strengthening good governance, economic freedom and investments in people.”
The MCC Nepal Compact contains as many as eight Articles which confer power on the Washington DC-based office to produce, reproduce, purpose, repurpose or modify the intellectual properties and claim right on them. In this respect, Section 3.2(f) of the MCC provides, “The Government grants to MCC a perpetual, irrevocable, royalty-free, worldwide, fully paid, assignable right and license to practice or have practiced on its behalf (including the right to produce, reproduce, publish, repurpose, use, store, modify, or make available) any portion or portions of Intellectual Property as MCC sees fit in any medium, now known or hereafter developed, for any purpose whatsoever.”
A mere literal interpretation of this Clause provides a vivid picture that the MCC, which has approved 37 compacts for 29 countries since its inception in 2004, would extend a claim on the products originated or produced from Nepal. Unfortunately, Nepal would lose its sovereign rights over certain products which have their origin in Nepal.
Section 6.8 of the MCC states: “MCC and the United States Government assume no liability for any claims or loss arising out of activities or omissions under this Compact” (Section 6.8). The provision further clarifies that United States Government will be immune from the jurisdiction of all courts and tribunals of Nepal for any claim or loss arising out of activities or omissions under the Compact. This way Nepal’s judicial department has been precluded from entertaining any question arising out of act or omissions of the MCC. Ultimately, MCC would be immune from the tortuous liability, or vicarious liability or any civil or criminal liability, whatsoever, as if the act or omission of the MCC is within the ambit of sovereign function.
Ironically, Section 7.1 is loaded with a provision that has potential to question the sovereignty and integrity of Nepal. It reads as “The Parties understand that this Compact, upon entry into force, will prevail over the domestic laws of Nepal.” Assume, if MCC starts claiming right on the intellectual properties that have sovereign origin in Nepal, then in such case Nepal’s domestic law would turn impotent to counter such types of infringement, interventions or imperialism.
At present, we don’t have a special legislation to govern the Geographical Indications (GI) of goods in the country which could sufficiently protect the interests of the producers of such goods. For instance, if MCC endeavours to seek GI on Nepali products, including Kodo, Lapsi, Sisnu, Yarashagumba,’, ‘Gundruk’, Jhapa Tea, or ‘Thakuwa’, ‘Bhuswa’, ‘Pidukiya’, Mithila paintings or other agricultural products, then in that case Nepal would lose exclusive claim on its products. In doing so, the United States could extend the claim to GI not only for agricultural products but also for manufactured goods of Nepal.
Much like this, Trade Related Aspects of the Intellectual Property Rights (TRIPS) aims to foster intellectual property on traditional knowledge, integrated circuits’ layout design or business secrets, the domestic laws of Nepal, including the Patent, Design and Trademark Act, and Copyright Act, are silent on securing rights on these contemporary issues.
Unless Nepal provides intellectual property protection, it cannot obtain the identical protection for her own goods on foreign soil that have their intellectual property law put in place. Interestingly, Articles 22-24 of the TRIPS cast an obligation on the signatory states of the World Trade Organisation (WTO) to provide the GI protection to the products that may include agricultural, natural, or manufactured goods or any goods of handicraft or of industry or foodstuffs. Nepal became WTO member on April 23, 2004. If MCC would succeed to avail claims on the Nepali products, Nepal would certainly fail to give effect to the international commitments expressed under TRIPS. Yet, Nepal deserves to build its capability for innovation, realise its research potentials and take its rightful place in global arena. In presence of the stringent provisions under MCC and absence of a strong intellectual property rights regulatory regime, it would be an uphill task for Nepal to claim an exclusive claim on products nationally and internationally.
Economic factor
In today’s competitive world, where economics decides politics, the developed, developing and underdeveloped countries ought to stand on the same page in protection and promotion of properties earned out of intellect. If these rights are protected, the companies, farmers, researchers, or writers could play a creative and constructive role in development as innovation enhances productivity. The burden of proving the relevancy of the intellectual property provisions enshrined in the MCC lies on the MCC itself. The Corporation is at the warrant of proving that the arrangements envisaged therein would not frustrate the municipal laws of any state.
(The authors are judicial officers at the Janakpur High Court, Birgunj Bench and can be reached at jhajivesh@gmail.com and panerunil@gmail.com)
– The Rising Nepal
