A Brief Analysis Of Nepal’s First National IP Policy

By Pratyush Nath Upreti

Earlier this year, the Nepal Government released its long-awaited first national intellectual property policy, after becoming the first least developed country (LDC) to join the World Trade Organization (WTO) on 23 April 2004.

The National Intellectual Property Policy of Nepal, released on 6 March, is available here [pdf].

During the accession negotiation of the WTO, Nepal presented an ‘Action Plan for Implementation of the Agreement on Trade Related Aspects of Intellectual Property Protection’ which highlights the actions already taken by Nepal and future roadmaps to develop an IP system within an estimated timeline.

Unfortunately, the action plan, suggesting drafting of the national IP code, never came into practice. Being an LDC, Nepal enjoys the status of the transition period under the TRIPS Agreement and has been receiving technical support from the World Intellectual Property Organization (WIPO).

Nepal is in the midst of a political transition, and with its low level of economic and social development, it has remained behind in protecting IPRs.

We have two major pieces of legislation: the Patent, Design and Trademark Act 1965 and Copyright Act 2002, enacted before Nepal became a member of the WTO. These laws are outdated and do not address the recent challenges brought through technologies. Therefore, Nepal needs legislative reforms of its IP laws and most importantly intellectual property awareness should be an utmost priority. IP was not a priority for the government until recently, as the increasing IP disputes, growth of business, and the recent promulgation of New Constitution received government attention. In 2015 Nepal took a historic decision to include ‘intellectual property’ within the fundamental right chapter of the newly promulgated constitution of Nepal. According to Article 25:

“Every citizen shall, subject to law, have the right to acquire, own, sell, dispose, acquire business profits from, and otherwise deal with, property”

Explanation: For the purpose of this Article, “property” means any form of property including movable and immovable property, and includes an intellectual property right.

I am sceptical about including intellectual property within the fundamental right chapter of the constitution, considering the changing landscape of the intellectual property system, which has become an integral part of trade, the regulatory system, and investment. I personally see intellectual property as a regulatory right rather than a property right.

The growing internet access and inadequate legal framework to address online copyright issues are the biggest concern for Nepal. The recently drafted National Information and Communication Technology (ICT) Policy looks promising in safeguarding intellectual property issues online. The recent promulgation of a new Constitution (2015) and recently conducted Nepal Investment Summit (2017) encouraged the government to prioritize intellectual property to improve the investment climate in Nepal. These were some of the collective reasons for the first national intellectual property policy, which aims to create a balanced IP system in Nepal with a vision of “creating a creative nation through preservation and provision of intellectual property protection.” The policy sets out following objectives: (i) To encourage protection, promotion and development of IP (ii) To develop a balanced IP system (iii) To create awareness about the social, economic and cultural aspects of IP (iv) To encourage the commercialization of IP (v) To strengthen the legal, administrative and human resources to ensure protection and enforcement of IP.

The policy mainly focuses on three aspects. First, it aims to revise the existing legal framework, recognize, and enact law related to geographical indications, petty patents, traditional knowledge/culture, integrated circuit, plant variety protection, trade secrets and biodiversity.

The legal protection for geographical indications/traditional knowledge is very important for a country like Nepal, it can be used as a tool for rural producers to enter niche markets which will contribute to improving the living standard through increased incomes. Second, it aims to introduce various programs to create awareness and promote intellectual property rights. Third, the policy addresses the need to curb IP infringement and recommends revising penal provisions under the existing legal framework. Furthermore, the policy establishes a National Intellectual Property Council consisting of members from civil society, ministries, and experts to facilitate and advise on policy issues. There are shortcomings in the policy too. The policy looks very general, and not issue based.

In 2015, Nepal successfully established a right to read campaign in collaboration with Electronic Information for Libraries and the Nepal Library and Information Consortium with an aim to pressure the government to ratify the Marrakesh Treaty on access for visually impaired readers. Previously, the government of Nepal was very enthusiastic about ratification and kept ratification of Marrakesh Treaty in its ‘priority list’ under a three-year action plan of the cabinet. Unfortunately, the subsequent government fails to realize the importance of Marrakesh Treaty and surprisingly the policy also doesn’t reflect the spirit of Marrakesh Treaty.

The policy is brought with good intentions and incorporates issues in the most comprehensive manner. To conclude, the policy promises the rainbow dreams, which entrepreneurs, authors, farmers, and the industry has been dreaming in recent years. If the policy is taken seriously and all the proposals are implemented, then Nepal will be able to create a balanced IP regime based on its social, economic, and cultural practices.

A detailed discussion of the policy is published in Journal of Intellectual Property Law & Practice (2017)

Pratyush Nath Upreti

Pratyush Nath Upreti is a Doctoral researcher at Sciences Po Law School and teaches intellectual property & trade law at Euro-American Programme of Sciences Po. He received an Advanced Master (LLM) Intellectual Property Law & Knowledge Management (IPKM) Degree from Maastricht University, Netherlands as UM High Potential Scholar. As an executive committee member, he leads ‘New IP Lawyer’s Network’ under the University of Exeter, United Kingdom. He has published on academic blogs and in peer-reviewed Journals.