Difficulties of enforcement of Intellectual Property Rights in Bangladesh and Recommendations their on

There are some issues to implement the IPRs in Bangladesh. This thesis will discuss shortly on those, as below:

 

IP Law Enforcement:

  • Weak IP enforcement

It gained championship in corruption in the world for many times. The people are not thinking the mass development, they think about their personal benefit. Before implementation of Paris Convention, TRIPS and many others international treaties, it was the strength of IPRs which determines the growth of the indigenous and economy in the Bangladesh. Without strong IP regime many countries has developed economy. For example without strong IP protections as well as no protection for pharmaceutical products, achieved economic growth which led to it’s economic transformation from developing to developed country. Similarly Bangladesh has some laws to protect the IP but enforcement is very slow. Rule of law is corrupted here. Therefore, the IP protection is not a well concerned matter. Already discussed the IP related laws in Bangladesh, those have the commencement of enforcement of strong IP protection here. But the corrupted enforcement made those laws very frail.

For establish the IP protection, strong rule of law should be executed.

  • Limited knowledge and skills among the law enforcing agencies

Bangladesh is a populated country but very limited in knowledge. It has no well-trained and educated group in Intellectual Property matter. 85% questionaries’ have agreed that limited knowledge and skills among the law enforcing agencies including Judges, Advocates and Polices.

There is no specific training program for the lawyers and judges dealing with IP-related matters. They have to improve their skills by practicing. Various institutions that work on IP laws sometimes arrange short training program for them. To deal with the IP cases, at first some high officials of Department of Patent, Design & Trade Mark are appointed as the judges of special tribunal court. When these cases go to the regular courts, regular judges deal with them. There is no specific difference between judges dealing with IP cases and those dealing with competition cases.

There is no separate Court for IPRs matter in District Judge label.

Have very few IP laws practitioner law firms among all over the country.

Have no special course, only BIM provides a training which is very insufficient.

Have no good assurance for any job facilities. Even the Government IP officials have no experience person regarding IP related matters. They have come to IP offices from different part of educational system.

Absence of collective management organizations

Governmental IP policy is not well organized policy here. Different IP offices are located in different places. There is no collective management system of all the IP organizations in Bangladesh.

 Limited knowledge and information about IP issues among public and private stakeholders

Public officials and Private businessmen are not aware of IP rights in Bangladesh. Many of them do not know the term ‘infringement’ and ‘passing – off’ and the rights and obligation of it. So that IP enforcement has become fruitless in Bangladesh.

 Limited number of private IP institutions

There are very few institutions involved in IPRs related matters. Only Masters of Laws (L.L. M.) course has a subject named Intellectual Property Laws. This course is concerned with Trademark, Patent and Copyright. In which class hour is very limited, only 20-24 hours for full course. Many lecturers/ teachers are not well knowledge or specialized on IP subject.

Issues:

Ensuring better enforcement of IP rights through appropriate legal, institutional and administrative supports:

Recommendation and Conclusion

7.1 Legislative Recommendations

  • Extend and simplify ex officio actions
  1. Introduce an implementing regulation or issue a circular to accompany the law conforming ex-officio authority for street and public place piracy to specialized IP units under the Ministry of Industries of the Government of the People’s Republic of Bangladesh, Security General Directorate of the Police (Special IP Police) against sales of trademarked, patented and copyrighted materials on streets and in public places as well as banderol violations.

  1. Speed up the legislative process for completing the adoption of the draft law amending certain articles of law in order to secure legal certainty.

  1. Amend the relevant laws governing industrial property rights by explicitly introducing ex-officio action for enforcement authorities (Police officers).

  1. Amend the law by introducing clearer rules regarding the availability of technical tools to collect evidence.

  • Improve action against infringements
  1. Amend the IP laws to ensure that everyone comply with notices to take down infringing materials and have in place effective and fair policies to address repeat infringers.
  2. Make clear that rights owners can secure the identity of infringers expediently through court orders.
  3. Promote more active cooperation of stockholder with right holders to prevent the use of networks for acts of IP infringement.
  4. This can be implemented in coordination with Information and Communication Technologies Authority and Ministry of Industries of the Government of the People’s Republic of Bangladesh.

  • Implement the WIPO Treaties fully

Amend the IP laws further to fully implement the WCT and WPPT including strong and effective protection of technological protection measures against circumvention, circumvention services, and trafficking in circumvention devices.

 

  • Improve and expedite civil enforcement procedures

Speed trial process and ensure courts issue preliminary court injunctions in a timely and effective manner.

  • Address deficiencies in criminal IP law and procedures
  1. Speed up the process by adopting pending legislation of criminal sanctions covering patents, utility models, industrial designs and geographical indications.
  2. Introduce legislative or technical administrative measures that will prevent the restitution of counterfeit goods seized within the scope of actions conducted under IP case matter.
  3. Enhance the deterrent effect of penalties under the IP Laws by introducing higher maximum fines.
  4. Carry out training, particularly among judicial authorities, to ensure accurate application of the criminal provisions contained in the new IP laws.
  5. Increase criminal penalties for intellectual property offences.
  6. Recommend that courts rely less on the civil and criminal procedural law of the Bangladesh criminal code in order to ensure that court rules permit the deterrence of IP crime; reduce the number of amnesties and suspended sentences (particularly against repeat offenders); and ensure the prompt issuance of search warrants on the basis of a reasonable showing from available evidence that a crime may have been committed.

Policy Recommendations

The remaining recommendations are aimed at the need to take some broader measures, actions and initiatives to support the more specific implementation and enforcement of IP legislation as recommended above.

 

  • Improve cooperation among enforcement authorities in addressing counterfeiting and piracy

An important aspect of enforcement is the cooperation and coordination among and between the law enforcement authorities. In Bangladesh, this would include the Ministry of Justice, the Bangladesh police, the Ministry of Industries, Under-secretariat for Customs and Bangladesh Patent Office. While there is already cooperation between these bodies, the level of cooperation needs to be improved. The establishment of sound cooperation and coordination structures is particularly important in the area of border measures, as customs authorities have to cooperate with other national agencies as well as foreign customs authorities and international agencies in order to effectively combat global counterfeiting and piracy.

Recommendations:

  1. Foster administrative cooperation and coordination amongst domestic enforcement authorities through seminars, workshops and conferences.
  2. Improve cross-border cooperation between Bangladesh law enforcement authorities and international agencies or IP offices of foreign governments.
  3. Encourage customs and policy authorities to participate more fully in developing and using existing technical tools to collect and share information. Share information with the competent customs authorities including relevant information to better identify and target for inspection shipments suspected of containing infringing goods.
  4. Improve Customs risk assessment tools. For example, given the great differences in prices between authentic and counterfeit products, a system should be set up to flag up any imports of certain products that fall below a certain declared value.
  5. Promote internal coordination among, and facilitate joint actions by competent authorities responsible for the enforcement of IPR.
  6. Upgrade technical infrastructure and develop on-line network to allow competent authorities involved in the enforcement of IPR to rapidly exchange information on enforcement issues, including real time alerts information on suspect products, manufacturing sites, distribution routes and key sale points.
  7. Research and make information available on technical tools and systems for prevention and

Investigation purposes (including tracking and tracing systems which help to distinguish genuine from counterfeit products).

  1. Develop databases to collect store and analyze data on the scope and impact of IPR infringements and national case law on such infringements and systems to enhance access of public authorities and private stakeholders to information.
  2. Issue documents for the implementation of IP rights such as handbooks and manuals and make them available to the law enforcement authorities.

  • Establish effective dialogue and cooperation between Turkish authorities, rights owner associations and other stakeholders

An important aspect of enforcement is the cooperation and coordination among and between the law enforcement authorities. In Turkey, this would include the Ministry of Justice, the police, the Ministry of Industries of the Government of the People’s Republic of Bangladesh, Under-secretariat for Customs and Bangladesh IP Offices. While there is already cooperation between these bodies, the level of cooperation needs to be improved. The establishment of sound cooperation and coordination structures is particularly important in the area of border measures, as customs authorities have to cooperate with other national agencies as well as foreign customs authorities and international agencies in order to effectively combat global counterfeiting and piracy.

Recommendations:

  1. Promote the establishment and maintenance of formal or informal mechanisms such as advisory groups that would facilitate engagement between the Turkish authorities and rights holders and other relevant stakeholders including organizers of trade fairs, transport and logistics companies, retailers and payment service providers.
  2. Undertake cooperative actions together with private sector to build strategies and to promote and spread successful private sector strategies.
  3. Cooperate with private stakeholders to build an electronic information exchange and an early warning system on counterfeit and pirated products.
  4. Enhance pre-seizure information sharing with rights holders about samples of products and packaging to aid Customs in determining whether goods are infringing.
  5. Enhance information sharing with right holders about technological protection measures and circumvention devices seized, and provide samples to right holders of circumvention devices seized in order to allow right holders to alter the technological measures to render the circumvention devices ineffective. Encourage and facilitate dialogue between right holders and other stakeholders to exploit the potential of collaborative approaches and to place more emphasis on joining forces to combat IPR infringements. The focus on common interests should allow voluntary arrangements to be fostered that would supplement the legislative framework.
  6. Consider the creation of a Bangladesh Observatory on Counterfeiting and Piracy, with membership constituted of representatives from relevant government, industry and other stakeholders. Such an Observatory could serve as platform to join forces and build coalitions between representatives from national authorities and other stakeholders for mutual assistance. The tasks and activities of such an Observatory could include responsibility for helping to put effective policy recommendations in place and assisting the Turkish public authorities in their policy, legal and enforcement work.

  • Expand IP-related administrative and technical capacity building

A country’s effectiveness in protecting IP rights is in significant measure dependent upon its capacity to enforce them. Therefore, in addition to prescriptions for better legislation and stronger enforcement, methods for improving knowledge, enhancing training, and developing skill capacities and competences, should be put in place.

Recommendations:

  1. Enhance the knowledge on best public and private sector practices to protect IPR.
  2. Enhance the expertise of persons involved in the enforcement of IPR by providing an on-line inventory of available, relevant training programs and initiatives offered and organized at international level.
  3. Expand cooperation with international organizations with a view to enforcement authorities such as police, prosecutors and customs participating in seminars organized by specialist IP enforcement representatives from the World Customs Organization, Interpol, Europol and UNICRI (United Nations Inter-regional Crime and Justice Institute). These enforcement seminars will secure a more sustainable flow of knowledge and learning throughout Bangladesh enforcement agencies.
  4. Organize more domestic programs and maximize the use of available funds offered at international level by participating in technical assistance projects with foreign governments to support the implementation and enforcement of IPR.
  5. Increase the number of specialized IP courts and prosecution offices throughout Bangladesh in cities. Increase the number of security units in the police organization particularly in highly populated provinces where industrial and commercial activities are also intensive staff working in these units on investigation methods with respect to diverse types of counterfeiting and piracy.

  • Increase public and political awareness of counterfeiting and piracy and the associated economic and social harm

There is a need to increase public and political awareness and understanding of counterfeiting and piracy activities and the associated economic and social harm. It is important for consumers, rights holders and government officials to be aware of the counterfeiting problem, to understand the economic and social effects, and to know what concerned parties can do to combat counterfeiting and piracy activities.

 

Recommendations:

  1. Promote the adoption of measures to create and strengthen public awareness of the importance of respecting IP and the detrimental effects of IPR infringements.
  2. Develop an overall communication strategy on enforcement-related activities including the use of new communication channels such as social networks and the design and development of an exclusive enforcement related website.
  3. Design nation-wide awareness campaigns which will educate the public and decision makers on the harms and costs of counterfeiting and piracy and raise awareness especially among young people to enable then understand what is at stake in IP.
  4. Work with international organizations, such as the ICC’s BASCAP to adapt globally tested awareness models to Bangladesh needs.

Development of National Intellectual Property Policy for Bangladesh

Development IPRs is a means of promoting technological development and innovation, thus benefiting the public through the activities of inventors and creators. During the 1950s and middle of 1980s, developing countries were able to abstain from the implementation of IPRs, maintaining a special status in the IPR system. The enforcement of IPRs is one of the several significant elements in IP law system, recently, the enforcement issue has often highlighted in both national and global forum. The development of the IP system depends upon the effective enforceability of IPRs and violation of it is a common problem in the developing countries like Bangladesh. The present IP enforcement mechanisms of Bangladesh are well organized and the agencies are now well coordinated and their effective measures can limit the violations. Acquiring or securing IPRs is of little economic value if these rights cannot be enforced effectively. The protection of IPRs in Bangladesh is governed through several means, e.g., administrative, civil and criminal sanctions. In Bangladesh IP is administered by two separate ministries. The two offices responsible for IP matters in these two ministries are: the Department of Patents, Designs and Trade Marks (DPDT) under the Ministry of Industries (MOI) and the Copyright Office under the Ministry of Cultural Affairs (MOCA). The DPDT is a quasi-judicial body and the Registrar of the department acts as tribunal. If any person becomes aggrieved he or she can file an appeal before the High Court Division (HCD) against the decision of the Registrar. The Trademarks Act, 2009, the Copyright Act, 2000, and the Patents and Designs Act, 1911 have given certain IPRs to trademark and copyright holder and patentee. These laws have defined some violations of the rights as crime. The Penal Code, 1860 and the Customs Act, 1969 also have declared certain activities as criminal offence. In general, the objectives of developments are –

Develop clear vision of the government on IP issues;

Encourage creation and innovation;

Protect creation and innovation;

Commercialize creation and innovation;

Establish linkage between domestic innovation and market;

Develop technological base;

Make room for transfer appropriate technology;

Improve efficiency and transparency in the IP Institutions;

Participate effectively in the bi-lateral, regional or multilateral negotiations related to IP issues;

Create IP environment. Bangladesh is in the first stage of formulating their IP development. The responsible agents for the formulation are the Ministry of Industries (MOI), the Ministry of Cultural Affairs (MOCA) and the Ministry of Science and Technology (MOST), with support of the WIPO, the Ministry of Commerce (MOC), the DPDT, and the Copyright Office. The following assessment matrix presents key challenges, strategic issues, priorities, and recommendations regarding different IP related issues.

Conclusion

Being a developing state surrounded by severe socio-economic problems i.e., corruption, extreme poverty, population, illiteracy, unemployment, issues like IP or copyright are often ignored in Bangladesh though the situation has been changing gradually. Countries must have the freedom to base their individual strength of IP protection on national factors. Where few people think IPR protection as a solution for the developing countries, views on the significance of IPR protection tend to be polarized. On one side, it is thought that stronger IPR protection can encourage innovation, technology diffusion and development. On the other it is believed that it leads to monopoly power for patent holders, decreases the motivation to innovate and limits the transmission of knowledge.

Economic theory demonstrates that IPRs could play either a positive or negative role in fostering growth and development. The limited evidence available suggests that the relationship is positive but dependent on other factors that help promote benefits from intellectual property protection.  In brief, IPRs could be effective and market-based mechanisms for overcoming problems that exist in markets for information creation and dissemination. However, their existence could pose problems in terms of their potential for costs and anticompetitive abuse.

Accordingly, modern IPRs systems are not sufficient by themselves to encourage effective technology transition. Instead, they must form part of a coherent and broad set of complementary policies that maximize the potential for IPRs to raise dynamic competition. Such policies include strengthening human capital and skill acquisition, promoting flexibility in enterprise organization, ensuring a strong degree of competition on domestic markets, and developing a transparent, non-discriminatory, and effective competition regime.

(This article is a segment of author’s research on “INTELLECTUAL PROPERTY LAWS IN BANGLADESH: CURRENT STATUS WITH PROBLEMS AND FUTURE DEVELOPMENT” for the degree of MASTER OF PHILOSOPHY, Under International Culture University. This article is published for educational purpose only, plagiarism is strictly prohibited)

Rajin Ahmed

Ph.D. (Fellow), Advocate. Member: Bangladesh Intellectual Property Law Society (BIPLS). Member: Society for Information and Research on Business Intellectual Inventions (SIRBII). Associate: Intellectual Property Association of Bangladesh

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