National 3 (Spotlight Weekly)

Race Against Time

Nepal needs to brace itself for the challenges that it will have to face once the TRIPS come into force in 2006

By SANJAYA DHAKAL

A California-based medical company earned 5.47 million dollars in royalty for identifying/patenting the cancer utility of a herbal plant called Taxus Bacata. There is a textual reference to the medicinal value of this herbal plant, which is known as Dhalispatra locally, in the Charak Samhita —an Ayurvedic text dating back to some 6000 years ago.

Dr. Rishi Ram Koirala, consultant Ayurveda and Yoga physician, who has done an extensive study on Ayurvedic medicines says that like Dhalispatra, Nepal is losing hundreds of invaluable plants because foreign companies are registering the patent rights. "We are already very late in rising up to the challenge posed by free trade regime," he said.

Even India is facing tough challenging in retaining the patent rights, as foreign companies are said to have patented herbal plants like Neem. "Our part of the region is rich in herbal knowledge handed down to us by our forefathers. But in the context of globalization, we are quite far back in registering their patent rights," said Dr. Koirala.

The concept of intellectual property rights is fairly new in the country. Fortunately, the authorities, private sector and business community are gradually sitting up and taking notice of the fast changing global scenario.

Every year April 26 is celebrated as World Intellectual Property Rights Day. This year the theme of the day, as designated by World Intellectual Property Rights Organization (WIPO) was "Encouraging Creativity".

"Encouraging Creativity" springs from the WIPO's conviction that human inventiveness, harnessed by the intellectual property system, is key to generating wealth, raising living standards and enriching our global cultural heritage," said Dr. Kamil Idris, director-general of WIPO, in his message on the day.

As the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement is set to come into force from 2006, it is important that Nepal realizes the importance of protecting IP rights that include copyrights, patents, designs and trademarks.

"The recent adoption of the Copyright Protection Act 2058 by the parliament is a step in right direction. This act, which is awaiting the royal seal of approval, has a number of provisions that would protect IP rights," said Bharat Bahadur Thapa, director-general at the Department of Industry (DoI).

The WIPO has divided IP into industrial products and copyrights. The industrial product protection includes patents, designs and trademarks whereas copyright protection include protecting creativity. The DoI is responsible for looking after the concerns of industrial product protection while the tourism ministry is entrusted with acting as registrar for copyright protection.

"There has been a positive development as far as patenting is concerned. The last year witnessed record number of patent registration, which shows increasing awareness," said Thapa.

Apart from TRIPS, the Berne Convention and World Copyright Treaty are the major international instruments that safeguard intellectual property rights. Nepal, too, had a Copyright Act 2022 B.S. but it was very poor in terms of safeguarding the rights. "Now with the passage of the new act, we are confident that we can act strongly in this direction," said Ridhi Baba Pradhan, joint secretary at the Ministry of Tourism, Culture and Civil Aviation. According to her, the ministry is set to organize a number of cultural and other programs intended at raising public awareness about copyright protection.

The president of Nepal Chamber of Commerce Rajesh Kaji Shrestha says that it is important for Nepalese to gain patent rights for products like handicrafts. He also said that while we invite foreign companies and multinationals to invest in our country, the inability of the authorities to protect them against forgery and flooding of market by spurious products is a big problem.

Recently, the Nepal Level Limited, a subsidiary of Hindustan Lever Limited, suffered from the flooding of market with Indonesian-made "Lux" brand of soaps despite it reserving the exclusive right of manufacture, sale and distribution of that brand inside Nepal.

The Nepal Lever Limited, in its desperation, even came out with public notices in newspapers requesting all concerned to respect its brand rights. "Such incidents do not reflect the country's image in positive light," said an industrialist.

"We have many unique products like pashmina, handicrafts and rare herbal medicines. It is important that we take necessary steps to assert our exclusive rights on them. Otherwise, our industries will suffer once we enter WTO," said Pushpa K. Joshi of the Federation of Nepalese Chamber of Commerce and Industry (FNCCI).

Dr. Koirala believes that individual efforts do not suffice in realizing global patent rights for such products. "There has to be a concerted and sustained efforts from all sections of society including government and private sector. If we act immediately, we may salvage something at least," he said.

Besides, industrial products there is a lot that Nepal still needs to do in protecting copyrights. According to Santosh Sharma, director of Music Nepal, the leading cassette recording industry of Nepal and general secretary of Nepal Copyright Protection Society, the piracy is greatly affecting not only the music but other creative sectors as well.

In fact, pirates usurp nearly half of the music market. Due to lack of stringent laws, the pirates are let scot-free even if they are nabbed.

"Creative artistes are bleeding while pirates are reaping profits at their cost," grimaced senior singer Kumar Basnet, who is closely involved in the protection of copyrights of Nepalese artistes.

Sharma believes that the new act will help control such piracy. "But now the matter is not simply controlling music piracy. As after 2006, TRIPS will become applicable whereupon western countries could restrict our exports (carpets/garments etc) if we don't protect the copyrights of say Michael Jackson's album or Harry Potter's book."

"The ability to generate original and useful ideas and imagine a better future has fuelled human progress since the beginning of time generating a stream of life-enhancing breakthroughs in areas such as environmental protection, food security and healthcare, and a richer choice of music, films and books. WIPO is committed to the development of a universal culture of creativity, in which the intellectual property system is widely used to strengthen economic performance and enhance wealth creation for the betterment of all. The components of the intellectual property system such as patents, trademarks, and copyright are powerful tools to capture the value of creativity and knowledge to promote economic and cultural development," stated Dr. Idris, in his message.

Both neighbors of Nepal are already members of World Trade Organization. Nepal, too, is trying hard to gain membership. The free trade regime would demand a number of changes in our business structure. "One of the important change we require is in the sector of intellectual property rights. Look how, the Chinese government is now restricting the flow of cheap imitated products that used to reach us from Tatopani point," said Rajesh Kaji Shrestha.

Clearly, the country is in a race against time as far as intellectual property rights are concerned. There is a lot that remains to be done. Meanwhile, one can take solace that a refined Copyright Act has recently been passed by the parliament and hopefully, it will be implemented in its true spirit so that we can move on from this point.