National 4 (Spotlight Weekly)

'Nepal Needs To Build A Complete Intellectual Property Infrastructure'

— JAMES. P. CHANDLER

Professor JAMES. P. CHANDLER, a well-known authority on intellectual property rights, has excelled in numerous areas of both the United States and international law. At the request of President Bill Clinton, Professor Chandler accepted an appointment to the National Infrastructure Assurance Council. The president of the National Intellectual Property Law Institute in the United States, Professor Chandler was recently in town to address a conference on Intellectual Property Rights in Nepal. He spoke to KESHAB POUDEL on various aspects of intellectual property rights. Excerpts:

A large number of Nepalese of different strata still misunderstand intellectual property rights. How would you explain the concept to them?

Intellectual Property (IP) is divided into four major categories that the public can understand. The first is patent law. The world has inventors, like those people who produced automobiles, air-conditioners, clothing, washing machines, etc, we take for granted today. In fact, they produced works of art. The information we read every day and see on television is provided by creative people. These people fetch money to retailers in faraway places like Nepal. The beauty of Nepal can be taken to the rest of the world. We need to reward these people who have helped improve our quality of life. They reduced the need for physical labor and have brought us joy. It is necessary to protect these people. We need to reward them financially, though which they can live, prosper and continue to create.

Who would benefit the most?

Without creative people, we could not imagine life as we know it today. Without protecting them, we will not have the future they can bring to us. Intellectual property rights are intended to protect the content of those individuals' contributions to each of our lives. Their contributions enriched the lives not only of their immediate family and communities but also countries all over the world. That is why we need a system of global protection.

What will happen if governments fail to protect them?

If a nation does not protect its own people, they will cease to create. If the nation does not protect its people, it cannot protect people from abroad who made these important contributions to the quality of life. So we need a global system. The quality and contributions of all people from all parts of the world can be enjoyed by all the people in every other part of the world.

How do you compare the situation in Nepal with that in the developed world?

The quality of intellectual property production is made by the individual's creative spirit. In terms of the beauty of paintings and lyrics and melodies of songs, for instance, individuals in Nepal are no different from those in Washington DC, Beijing, Bangkok, Mumbai or anywhere else in the world. They are all creative people.

Does Nepal have creativity to protect?

Nepal has its own set of creative people born within the unique experience and peculiarity of Nepal. They bring that sprit and experience in the work they produce for the benefit of all humanity. It is important for Nepal as a developing country to produce these great works and to protect them in order to foster creativity. The development level of a country is not essential to the quality of its productions. All people everywhere deserve protection, whether they are in the developing or developed world.

How do you assess Nepal's prospects after the enactment of intellectual property legislation?

Nepal has a new copyright law. In addition, there are draft versions of new legislation on patents, trademark and unfair competition. All of these are major steps forward. I think Nepal is making great progress. If the country continues in this pace, then it would become one of the major intellectual contributors to the global community and greatly enrich the Nepalese.

As you have discussed the matter with Nepalese officials, how do you see Nepal's preparations for admission to the World Trade Organization (WTO)?

I think Nepal should be admitted to the WTO. There are progress requirements and logistic requirements. There is a need to make revisions in a variety of laws to build a complete intellectual property infrastructure. That infrastructure consists not only of words of the law but also includes an intellectual property administration. It requires a copyrights office to maintain appropriate records on the works of authorships made by the Nepalese. If I carry anything from Nepal to United States, we should be able to see what has been done on behalf of Nepal.

Why do countries need copyright laws?

Copyright laws and administration are needed to establish ownership of publications and the individuals who made created them. Without those kinds of law, Nepal cannot protect its own creation. It cannot receive the money it should get for the quality of the work its people are doing. So, you need not only laws but also an administrative structure or a governmental body. Let the government make contacts with private bodies and create an institution to manage and maintain records on creative works of ownership.

How will it help?

It converts a creative work into a work of ownership. Then Nepal would have to focus on international-standard law enforcement. Law without its administration is no law. You and I can write words, but without enforcement, they amount to nothing. The idea of law itself embraces the words on the paper and the administration that we have just discussed. Then it requires investigators and prosecutors in courts. The combination of words, administration and enforcement makes law. Only the government can only provide enforcement, since only the government has courts, prosecutors and investigators. Nepal needs to build a complete intellectual property infrastructure. By building such an infrastructure, it can turn itself into a world-class intellectual property country.

What would countries like Nepal gain from joining the WTO?

WTO membership would bring several benefits for a country like Nepal. First, the entire intellectual property assets of Nepal will be defined within particular categories of laws. For example, the WTO requires copyrighted acts in one category, trademarks in another, patents in a third category and trade secrets in a fourth. Nepal will have all these categories of intellectual property identified with appropriate laws creating ownership. It will be recognized and respected around the world. No individual or country can sell products they do not own. When you sell something you don't own, say your neighbor's car or refrigerator, you should be prosecuted and imprisoned.

What is the WTO's role in controlling counterfeiting?

The WTO seeks to end counterfeit activities and protect honest producers. The legitimate author and inventor is respected and global revenues accruing from their creation should return to their country. The people of the world will have to pay for access to the intellectual property of Nepal.

How will the WTO benefit Nepalese creators?

The WTO will make sure that the rights of the Nepalese are respected abroad. It will make sure that money raised on any street of the world from the sale of Nepalese painting goes to the person that created it. It will provide enforcement capabilities Nepal or any nation cannot provide alone. So, it will provide protection for intellectual property producers of Nepal. In doing so, it will contribute to the financial enrichment of Nepal and its people.

How can Nepal utilize the intellectual property rights regime to maximize benefits?

There are tremendous intellectual property assets in Nepal. For instance, a beautiful garden is a design of a certain architect. If I want to copy the garden design, I need to contact the creator. I have seen creative works all over Nepal. Even in this interview, you are creating intellectual property. All reporters and camera people produce intellectual property.

Would it help to encourage foreign investment?

Businesses all over the world will have an interest in Nepal, as opportunities to invest and protection mechanisms improve. Magnificent creative contributions developed over the centuries still exist here. If Nepal does not create a protective regime for its intellectual property assets, then someone else will come in and enjoy its benefit. With the Internet, everyone can in seconds access beautiful images that are available only in Nepal. If these images are provided to the world without protection, then it will be free for everybody in the world to enjoy them with no economic benefits to Nepal. Nepal stands to gain tremendously both financially and in terms of pride of authorship. This would help to inspire more creativity. I can foresee a time when the people of Nepal would become immensely creative, bringing in revenue and showing the world the rich splendor it has to offer. That will bring in tourists who want to see that splendor themselves, and bring in more money for the country.

How do you assess Nepal's preparations on patent rights?

Nepal has made a very good beginning. The requirements of patent law are expanding. When the patent law was written, it created basically four categories of subject matters that could be patented. Those were machines, processed things, composition of matter and system of manufacture. But human endeavor is going forward. Computers and programs were not around when those four categories were created. So everyone asked: can you patent a computer program? The answer was no, because it is neither a process, composition of matter, a machine nor a system of manufacture. The Patent Commission was established in 1964 and we never received a computer program. Today virtually more than half of all patents issued are related to computers. Obviously, we have to change the laws. We have to find a place where these valuable comprehensive exploding new technologies. But before anyone can come to see the value of computer programs, one has to understand the technology. What is the computer program and why it is so important that we should change our laws? The are some of the questions we need to be asking ourselves.

Where can Nepal start?

Nepal should start with the philosophical understanding of patent law. Find the new areas in which Nepal is contributing to the world. And then, let us carve out a new plan and expand the law to embrace these great contributions. There has been an evolution over time in the United States and we have adjusted. The Bern Convention, which governs copyrights, has been adjusted over time. The international brand law has evolved over time. Intellectual property law is maturing with human knowledge, human experience and human creativity.

How can we make it serve our purpose?

The purpose of the law is to reward a creative person who adds new products to the economy. So, patent law should embrace every conceivable new product which is added to the stream of commerce. So if there is some reason that Nepal's creativity and productivity has produced something which is not currently embraced in the patent, copyrights or trademark laws, it is the duty of scholars to understand these challenges and find way through the interpretation of the law.

How do you evaluate Nepal's long-term prospects in the area?

Nepal has made a good start in the areas where it can improve. The US is the leader of advanced technological revolution of our time. Who knows where the new technology will originate next? Perhaps it would be in Nepal if creative people come together. We are going to see advances in science and technology. With Nepal's great bio-diversity, may of those advances may occur here. We have to find ways of protecting them. If the world at large is to benefit from new creations of Nepal, it should be prepared to pay for its use.