Effects on Cambodia, Laos, and Myanmar of Extending the TRIPS General Transition Period for Least Developed Countries

Effects on Cambodia, Laos, and Myanmar of Extending the TRIPS General Transition Period for Least Developed Countries

Effects on Cambodia, Laos, and Myanmar of Extending the TRIPS General Transition Period for Least Developed Countries

Members of the World Trade Organization (WTO) approved a 13-year extension of the Least Developed Countries (LDC) transition period for applying the Agreement on Trade-Related Aspects of Intellectual Property Rights on June 29, 2021. (TRIPS). The extension was made possible by a last-minute agreement reached at the TRIPS Council meeting, only two days before the initial expiration date of July 1, 2021. The new deadline for LDCs to comply with TRIPS intellectual property rights is July 1, 2034, as a result of the agreed extension.

The TRIPS Agreement establishes minimum standards for the protection of intellectual property rights in WTO member states, including adherence to substantive rules under the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works, as well as rules on trademarks, geographical indications, patents, industrial designs, layout designs of integrated circuits, and undisclosed information (i.e., trade secrets).

At the same time, the WTO noted that its LDC members have specific obstacles, frequently exacerbated by a lack of resources or administrative infrastructure, and that they are not yet in a position to fully comply with the TRIPS Agreement. As a result, except for certain articles on equal treatment for foreign parties, most-favored nation status, and obligations under World Intellectual Property Organization (WIPO) treaties, LDCs were not compelled to implement the TRIPS Agreement. Instead, a “transition period,” or grace period, was established to allow LDC members to prepare for the treaty’s full adoption. This time of transition has been prolonged till July 1, 2034.

Because several LDCs have previously complied with some of the remaining provisions, the current extension will have varying effects in these countries. Below are summaries of the extension’s ramifications for Cambodia, Laos, and Myanmar.

Laos

The extension of the TRIPS deadline for LDCs is unlikely to have any immediate implications for IP owners in Laos, which is a signatory to both the Berne and Paris Conventions. The Law on Intellectual Property, which is the cornerstone of Laos’ IP legal framework, already reflects these agreements. In agreement with international organizations such as WIPO, the government has also enacted many rules (for example, on patents and minor patents, industrial designs, layout designs of integrated circuits, geographical indications, and copyrights and related rights).

Myanmar

The extension of the TRIPS transition time for LDCs has extensive ramifications for Myanmar, since the country’s implementation of four substantive IP laws (enacted in 2019) is still ongoing, leaving it in violation of major TRIPS obligations.

Only one of these four laws has begun to be implemented: the Trademark Law. On October 1, 2020, the newly constituted Intellectual Property Department (IPD) began the law’s “soft-opening period,” allowing applications for the re-filing of existing marks in Myanmar under the Trademark Law. The law’s full implementation has been postponed, and no date has been set. The Ministry of Commerce has said that the other three laws would be implemented only once the Trademark Law has been effective.

Meanwhile, under the previous system, new marks can still be registered via a Declaration of Ownership, and protections for industrial designs, patents, and copyrights can still be granted through the common law system and related laws.

Cambodia

The consequences in Cambodia are mostly copyright-related, while other IP issues are addressed by existing laws and regulations that are usually in conformity with the TRIPS Agreement. The Berne Convention’s substantive provisions (save those on moral rights) are included into the TRIPS Agreement, which includes automatic protection of literary and creative works without the need for local publishing procedures.

Cambodia, on the other hand, does not provide automatic copyright protection, therefore copyright holders will have to carefully assess their protection in Cambodia until the nation alters its national legislation or becomes fully bound by the TRIPS Agreement or the Berne Convention. Foreign copyright holders may find that their work is unprotected in Cambodia if they do not fulfill local publication standards.

In Cambodia, the extension of the transition time is also related to the preservation of trade secrets and undisclosed information. The Cambodian Constitution and Civil Code provide legal protection for private information, and the Criminal Code makes it illegal to disclose any confidential information, but there is no explicit legislation regulating trade secrets. While the TRIPS Agreement considers the publication of confidential information to be an act of unfair competition, Cambodia’s approach falls short. There is no advice on what constitutes a trade secret, how to get protection, the types of protection and remedies available, or exceptions. This implies that business secrets (such as marketing strategies, price information, and so on) that would ordinarily be protected under trade secret law may not be eligible for protection in Cambodia at the moment.

Cambodia agreed to protect undisclosed test or other data submitted for marketing approval of agricultural or pharmaceutical products containing new chemical entities from unfair commercial use (data exclusivity) for at least five years after marketing approval was granted as part of its WTO accession commitments. In view of Cambodia’s LDC status, however, it appears that this specific obligation may be delayed until 2033 under the pharmaceutical products waiver.

On request, an eight-year data exclusivity period for agricultural products is already available, however it is unclear if this also extends to pharmaceutical items, making it impossible to secure this information under existing Cambodian legislation.

While the extension of the TRIPS transition period for LDCs is not a legal or policy change that necessitates immediate action, it is a good reminder for companies operating in LDCs such as Cambodia, Laos, and Myanmar to assess their intellectual property in each jurisdiction and consider whether alternative protection strategies are required based on the continued application of local laws that may not comply with the TRIPS Agreement. Despite the persistence of legal or administrative impediments, rights holders may typically achieve sufficient levels of protection for their intellectual property in these nations with the proper strategy.

 

 

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