DEVELOPMENT OF THE INTELLECTUAL
PROPERTY PROTECTION SYSTEM
IN CAMBODIA

Presented
At the Globalization Conference
Business and Law Perspectives, held at Cambodiana Hotel

On June 27-28, 2001 

Organized by the Ministry of Commerce,
 the Faculty of Laws and Economics
 and the Cambodian Legal Resources Development Center

Prepared by Mr. Ly Phanna
Director
Intellectual Property Division
Ministry of Commerce
E-mail: ipd@moc.gov.kh

I -  INTRODUCTION

Intellectual Property Rights has become one of the hot topics of national interest prior to the accession of Cambodia to the World Trade Organization ( WTO ), and after the admission of Cambodia into ASEAN. Cambodia faces many constraints in accepting this new concept, due to the lack of skilled human resources, existing infrastructure and related legislative texts.

The key issue of the intellectual property system is to provide effective legal
protection for intellectual property. Intellectual property is one of the essential means to drive technological innovation. In particular, when intellectual property was put under the framework of the World Trade Organization, it played a more important role in the globalization of the economy, and become the driving force for the development of science, technology, economy, and trade around the world. It is therefore a key issue around the world that intellectual property should be efficiently protected. In order to provide efficient protection for intellectual property rights holders and concerned parties, the Cambodian government attached great importance to the system and mechanism for the protection of intellectual property just after the first general election in 1993.

The Royal Government of Cambodia has initiated many efforts to restore both people’s awareness as well as administrative implementation for the protection of this major trade-related field, hoping that it will contribute a significant part to the development of the Cambodian economy in the long-run by encouraging foreign direct investment, promoting the transfer of technologies, creating confidence among local and foreign traders, promoting research & development, creating local jobs, and expanding Cambodia’s trading activities. These initiatives include the establishment of the Intellectual Property Division under the supervision of the Ministry of Commerce, setting up an Inter-Ministerial Committee to oversee the three areas of intellectual property (Patents, Trademarks, and Copyrights), drafting of the three intellectual property laws, and sending key operational staff members for overseas training.

For Cambodia today, compliance with the international standards is a major constraint. Being a poor country among LDCs, and just emerging from a long civil strife and political instability, Cambodia must start everything from scratch. Influx of cheap imitative goods, uncontrolled computer software and compact disc recording, ...etc., contribute to the development of product ranges in the Cambodian market and offer relatively less expensive prices for local consumers. Strictly implementing intellectual property laws/ regulations, including the implementation of International Treaties and Conventions such as the Paris Convention, the TRIPs Agreement ...etc., would lead to a temporary negative impact for Cambodia. These constraints need both a devoted timeframe for adjustment as well as technical cooperation and assistance of developed countries as mentioned in article 67 of the TRIPs Agreement.

II- POLICY FORMULATION AND IMPLEMENTATION

(a)- Administrative Structure

The responsibility of the three key areas of intellectual property is divided among three
ministries. Trademarks are under the Ministry of Commerce, Patents are under the Ministry of Industry, Mines and Energy, and Copyrights are under the Ministry of Culture and Fine Arts.

Noticing the difficulty of the government in supervising the three areas of intellectual property which were dispersed among the various ministries, and in order to make it consistent with the administrative structure of the countries in the region, in December 1998, the Ministry of Commerce initiated an consolidation plan of the three areas under one umbrella and sent a proposal to the Prime Minister.  The proposal requested that the Prime Minister consider the consolidation of the three areas of intellectual property under the supervision of the Ministry of Commerce so that the government can speak with one voice on intellectual property matters, coordinate the national intellectual property policy, and provide one-stop shopping registration and enforcement.

In reply to the Ministry of Commerce's proposal, on February 22, 1999, the Royal Government issued a decision No. 16 to establish a committee governing the three areas of intellectual property. The Minister of Commerce was appointed as the president of the committee, the Minister of Industry, Mines and Energy as the vice president and the director of the intellectual property division, Ministry of Commerce, as the president of the committee's secretariat.

The purposes for establishing the above committee are:

-  to speed up the drafting of all laws and regulations relating to the field of intellectual property, the major benefits of which are to fulfill Cambodia's obligations as stipulated in the Agreement on Trade Relations and Intellectual Property Rights Protection between the Royal Government of Cambodia and the USA, and the preparation for the accession of Cambodia to the World Trade Organization.
-  to smoothly coordinate all intellectual property matters between the Ministries of Commerce, Industry, Mines and Energy, Culture and Fine Arts, Information and other relevant ministries.
-  to coordinate assistance in the field of intellectual property from the international communities.

(b)- Drafting of Laws and Regulations 

Drafting the three major intellectual property laws has been the first obligation of the Royal Government for the globalization of the Cambodian economy into the world trading system.

1-Law Concerning Marks, Trade Names and Acts of Unfair Competition 

With valuable assistance from the World Intellectual Property Organization (WIPO), our draft Trademark Law called “ Law Concerning Marks, Trade Names and Acts of Unfair Competition “ was finalized in September 1999, passed the Jurists Council of the Council of Ministers in April 2000, passed the Inter-Ministerial Panel in September, after 10 sessions of debates, adopted by the Council of Ministers on October 27, 2000, and is currently under the consideration of the National Assembly. It is expected to be adopted this year. This law comprises 16 chapters with 67 articles. 

2-Law on the Protection of Patents, Utility Model Certificate and Industrial Designs
Also based on WIPO model provisions and WIPO ’s comments, the draft Patents
Law has been recently finalized by the Ministry of Industry, Mines and Energy and was submitted to the Jurists Council of the Council of Ministers last January. It is currently under Inter-Ministerial Panel debate. This Law comprises 6 chapters with 136 articles, and embodies one part containing twelve articles regarding the international application under the Patent Cooperation Treaty, as Cambodia will immediately join this organization (the PCT) once the Patents, Utility Model and Industrial Designs Law has been adopted by the Parliament.

3-Law on Copyrights and Related Rights

Not different from the two other Laws, the draft Copyrights and Related Rights Law has been completed by the Ministry of Culture and Fine Arts, with the valuable assistance of WIPO’s legal expert. It was submitted to the Council of Ministers in November last year and is now under the consideration of the Jurists Council of the Council of Ministers. This law comprises 7 chapters with 72 articles, mostly related to the Berne Convention for the Protection of Literary and Artistic Works, and it strictly complies with the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS agreement). This law also contains one part regarding the enforcement of Copyright and Related Rights including civil remedies, criminal sanctions and border measures. We are keen to ensure that there is a sound legal and administrative basis for intellectual property  protection and enforcement in Cambodia, as our Laws and Regulations certainly comply with the obligations under the TRIPS Agreement when they are enacted, as they are all based on WIPO model provisions.

Due to the lack of Intellectual Property legislation, the Patents Office of the Ministry of Industry, Mines and Energy has yet to be in operation. Only the Trademarks Office is operational. In waiting for the law to be passed by the parliament, the protection of Trademarks in Cambodia is currently based on the Regulation No 368 of the Ministry of Commerce regarding the Procedure for the Registration of Marks dated December 15,1997 and the Provision Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period of September 10, 1992 (Article 47).

Currently the Application for Registration, Formality Check, Filing Acknowledgement, Notice of Amendment or Refusal, Trademark Certificate Issuance, and Trademark Gazette Publication are manually applied and presented in hard copies through the normal manual practices, except for the process of substantive examination and data storing which has been done automatically through the IPD' s computer network.

So far, around 15,000 marks have been registered, in which 85% are foreign marks and 15% are domestic ones. The lead country registering marks in Cambodia is the USA, which represents 20 percent of the total registered marks. In the year 2000, the Intellectual Property Division of the Ministry of Commerce received a total of 1,964 trademark applications, an increase of 36% over the same period of 1999. The increase of this years trademark applications proves the progress of IPR awareness among the people, and the confidence of both foreign and local investors/traders on the improvement of IP protection and enforcement in the Kingdom of Cambodia. Despite the lack of principal legislation on the protection of marks, with the cooperation of other enforcement authorities, the IPD manages to effectively protect the legitimate rights of registered and unregistered trademark owners by cracking down upon many cases of trademark infringement and counterfeit trademark goods.

(c)- Enforcement of Intellectual Property

Globally, the prevalence of counterfeit goods poses a major problem for intellectual property rightholders as well as consumers.  In this sense, the effective enforcement of intellectual property is vital to speed up the development of the national economy.  Presently, in Cambodia, the following authorities are responsible for the protection of intellectual property rightholders:

-  Enforcement Section of the Intellectual Property Division: plays the role of mediator to settle disputes on trademark matters between the right owners (complainants) and the infringers (defendants);
-  Customs authority: is entrusted with the enforcement of intellectual property rights at the border. Its duty is to prevent the import of goods bearing counterfeit trademarks into Cambodia;
-  Camcontrol Department (Cambodia Import Export Inspection and Fraud Suppression Department) under the supervision of the Ministry of Commerce is also entrusted to enforce intellectual property rights at the border gates and in the domestic markets;
-  Economic Police: its duty is to enforce intellectual property rights in the domestic market;
-  Court (Municipal/ Provincial Court, Appeal Court, Supreme Court): provisionally is the highest body in solving disputes on intellectual property.. All intellectual property disputes will be handled by the commercial tribunal once this body has been created.
So far, 67 trademarks relating to ownership right conflicts have been removed from the register of trademark by the Intellectual Property Division.
Six cases of disputes over trademark infringement have been settled amicably through the IPD mediation section.

Four cases of disputes relating to acts of unfair competition have been settled by means of public announcement through the media (television, newspapers) by the IPD.
In addition, 6 cases of disputes over ownership rights have been brought to court.

III-MEMBERSHIP OF INTERNATIONAL INTELLECTUAL PROPERTY CONVENTIONS AND REGIONAL OR BILATERAL AGREEMENT

(i)  Cambodia became a member of the World Intellectual Property Organization (WIPO) on July 25, 1995;
(ii)  Joined the Paris Convention for the Protection of Industrial Property on September 22, 1998;
(iii)  Joined the ASEAN Framework Agreement on Intellectual Property Cooperation on April 30, 1999. The objective of this Agreement is to foster closer cooperation in the field of intellectual property and related fields in order to provide a firm basis for economic progress, the expeditious realization of the ASEAN Free Trade Area, and prosperity among the Member States of ASEAN.
(iv)  The Trade Relations and Intellectual Property Rights Protection Agreement between Cambodia and the USA was signed on October 04, 1996 and came into effect on October 25, 1996. The purpose of this Agreement aims at two major issues:

- developing mutually beneficial trade relations between the two countries, and
- providing adequate and effective protection and enforcement of intellectual property rights.

(v)  The Memorandum of Understanding on Intellectual Property Cooperation was signed with Thailand on March 05, 1997.
In addition, Cambodia intends to join the following treaties and conventions in the near future:

-  The Patent Cooperation Treaty (PCT)
-  The Berne Convention for the Protection of Literary and Artistic Works
-  The Patent Law Treaty
-  The Trademark Law Treaty

IV- EXISTING PROBLEMS

Cambodia currently faces the following problems that need to be addressed:

- Lack of adopted intellectual property laws and civil and criminal codes;
- Separate agencies responsible for policy formulation and implementation;
- Lack of human resources:  as the IP system in Cambodia is still at the nascent stage and far from being in line with the rest of the world, the lack of qualified officials is unavoidable.
- Lack of experience of enforcement bodies:  as intellectual property is quite a new issue for Cambodia, our enforcement officials are not experienced in the settlement of disputes involving intellectual property. To address this challenge and to promote public awareness, the Ministry of Commerce has put forth a great deal of effort in organizing four national seminars on intellectual property in the past three years in collaboration with WIPO, to which the enforcement officials have been invited to participate. In addition, some enforcement officials have also been invited by WIPO to participate in the seminars and training courses abroad.
- Lack of public awareness on intellectual property: due to the long lasting political crisis, not only the businessmen but also most of the civil servants are not aware of intellectual property. Certain people would like to know about IP but they face difficulty in finding IP reading materials especially in the national language.

V- UP COMING ACTIONS AND FUTURE PROSPECT

With the desire to strengthen and modernize the intellectual property system in Cambodia to catch up with our neighboring countries, and while awaiting the above three laws to be passed by the National Assembly, the following laws and regulations are being drafted or will be drafted soon:

-  Sub-Decrees of the Government implementing the laws on trademarks, patents, and copyrights;
-  New Regulations by the Ministry of Commerce on the Procedure to Register Trademarks in Cambodia to replace the existing ones in order to make it more comprehensive, and consistent with international practice;
-  1Law on Layout Designs and Topographies of Integrated Circuits;
-  Law on Unfair Competition and Trade Secrets;
-  Law on Geographical Indications.

In addition, Cambodia's Intellectual Property Division was the first IP Office in Asia and the Pacific region to receive WIPONET equipment, under the WIPONET Project of the World Intellectual Property Organization, in order to assist Cambodia in creating its own national intellectual property web page and provide the IP Office with the opportunity to access the intellectual property global information network.

Moreover, in order to further promote awareness on intellectual property to the enforcement officials, another national seminar on enforcement of intellectual property will be jointly organized by the Intellectual Property Division, Ministry of Commerce and the World Intellectual Property Organization (WIPO) on 22-23 November this year. 

Furthermore, in order to address the lack of human resources, the Intellectual Property Division has made a proposal to WIPO which it has already accepted - to receive one Cambodian official for long-term training at the WIPO Academy to become the trainers, for the year 2002. Apart from this, under the assistance project of WIPO, some senior and key officials, including judges and customs officers, will be sent to attend the WIPO's IP-related seminars or symposiums abroad.

VI- CONCLUSION

-  More efforts are still needed to face the challenges of replacing the habitual thinking of
the public on IP issues by avoiding conflict of interest, and at the same time adapting a new concept of IP protection and enforcement.
-  Intellectual Property enforcement will not succeed if it is still lacking the cooperation of enforcement authorities and the necessary people to enforce the laws.
-  More capacity building is needed for the staffs of enforcement bodies to ensure the effectiveness and efficiency of IP protection in the face of up-coming technologies, which require improved quality of IP knowledge in order to respond to new technological innovation.
-  It is necessary to modernize the IP Office at a national level, and introduce an online procedure for the regional or international application of trademarks and patents in order to promote the effectiveness of IP management and enforcement.