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VOL 18 NO -156 REGD NO DA 1589 | Dhaka, Thursday April 14 2011

Intellectual property: Status of Bangladesh

M S Siddiqui

The Telegraph of Calcutta in one of its front-page reports in May, 2004, that was cited,
'tune-lift' highlighted that the renowned music director Anu Malik committed piracy of an
original compositions by Miles, a band group in Bangladesh, and used it the Hindi film
'Murder'. The song, 'Phiriye Dao Amar Prem,' (Give me back my love) had been copied
in the soundtrack of the movie Murder. Bombay Times also reported the same story in
July 2004. A writ petition was filed on behalf of Miles in the Calcutta High Court on May
17, 2004 against the film's producer, Mahesh Bhat, and the music director, Anu Malik,
the singer of the song, Amir Jamal, the recording firm Saregama (India) Ltd., and the
audio company RPG Global Music (London). The court's verdict was in favour of Miles
and the song was subsequently removed from the film.

A local film director, Ahsanullah Moni, recently built a replica of the Taj Mahal near
Dhaka. There was displeasure from the Indian High Commission over the life-size copy
of the Taj Mahal for breach of the copyright law.

There are some local litigations of Intellectual Property Right (IPR) in Bangladesh.
Munmuns Leather Pvt. Ltd., is the dealer in Bangladesh for the American 'Samsonite'
brand. Another importer has opened Letters of Credit (LC) to import items including
counterfeit 'Samsonite' suitcases. Munmuns Leathers lodged a formal General Diary with
a local police station on October 7, 2010 complaining about the importation and it also
submitted a representation to the Joint Commissioner of Customs in Dhaka and
Chittagong. The authorities confiscated the consignments in Dhaka on October 10, 2010
and in Chittagong on October 11, 2010.

In another incidence, Kraft Foods Globe Brands LLC, a US company having the 'Tang'
brand concentrated soft drinks, also obtained IPR (Intellectual Property Right) for
Bangladesh market as well. A Bangladeshi company Ibnsina Food marketed preparations
for soft drink under the brand, 'Ibnsina Orange Tang'. Kraft Food filed a case against
Ibnsina and the District Court issued an order, restraining Ibnsina from trading with the
trademark 'Tang'. Ibnsina tried to obtain registration for the trademark of 'Tang' but the
Trademark Department has rejected all their applications.

Dr Maqsudul Alam and a group of Bangladeshi researchers from Dhaka University's

Biochemistry and Biotechnology departments, Bangladesh Jute Research Institute (BJRI)
and software firm DataSoft, in collaboration with the Centre for Chemical Biology,
University of Science, Malaysia and University of Hawaii, have successfully decoded the
jute plant's genome. The research disclosed genome sequencing of jute after a long
research opening up a new vista in the development of different varieties of the world's
most biodegradable natural fibre. Bangladesh has applied for jute patent from World
Intellectual Property Rights organisation (WIPRo) after successful sequencing of jute
genome before the application by any other competitor.

The IPR is awarded on a first come first serve basis. The Bangladesh authorities kept the
information secret and the innovation was disclosed by the prime minister in the
parliament only afterthe application for registration was made. The matter was so secret
that even the ministers were unaware of the discovery and application for IPR.

The US and the UK holds IPR for many things that originated in other parts of the world.
Turmeric is produced in many places around the world, but the US received the
registration of IPR of turmeric. Other countries cannot use it for medicinal applications
without the permission and royalty payment to the US. The Neem tree grown in this part
of world but India got IPR of Neem although Bangladesh has filed an appeal for same
IPR. India trying their best to obtain IPR of Saree, the traditional dress of women in this
region, although this is widely-used dress in Bangladesh rather than India.

All these incidents and decisions of courts are on the basis of IPRs that are the legal
mechanisms for copyrights, patents and trademarks, ensuring that the products we buy
are genuine and not dangerous and defective or counterfeit ones. There is a popular phase
'Zinjira-made' for copy or counterfeit. Zinjira-made transactions deprive the original
manufacturers and also the consumers, considering the quality and price of brand
products. It also protects the interest of innovators and creators so that none can
counterfeit innovation of others.

The IPR ensures that inventors and innovators are rewarded for their ideas. IPR
protection fosters an environment in which creative and innovative industries can thrive
and contribute to economic development of the countries. Inventors, creators, and other
risk-takers play a critical role in this economic progress, and the protection of IPR is
necessary to ensure that the advances that result from their efforts, are rewarded and
valued. IPR protects the interest of entrepreneurs.

The IPR protection is given under different laws that include copyrights, patents,
trademarks, geographical indications, industrials designs, utility models, plant breeder's
rights, integrated circuits rights and trade secrets. Intellectual property, as defined by the
Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, includes
copyright and related rights, computer programmes and compilation of data, trademarks,
geographical indications/appellation, acts of performers, sound recordings and
broadcasts, industrial design, patents, layout designs (topographic) of integrated circuits
and undisclosed information.

The convention establishing the WIPRo, which concluded in Stockholm on July 14,
1967, provides that 'intellectual property' shall include rights relating to literary, artistic
and scientific works, performances of performing artists, phonograms and broadcasts,
inventions in all fields of human endeavour, scientific discoveries, industrial designs,
trademarks, service marks and commercial names and designations, protection against
unfair competition, and all other rights resulting from intellectual activity in the
industrial, scientific, literary or artistic fields.

Under the TRIPS Agreement, the following rights are treated as part of intellectual
property: patent, copyright, trademark, industrial design, confidential information and
layout-designs of integrated circuits. This list is not exhaustive and there are other rights,
for example, rights associated with protection of plant and seed varieties. It plays a
significant role in preventing inequitable use of information acquired in the course of
business or professional relationship. The concepts of trade secrets and unfair
competition have also been developed.

Intellectual property becomes a tool for economic development, when it is used in the
context of well-articulated national, regional or enterprise-based strategies, to encourage
and support innovation and creativity. There are more than 50 varieties of rice developed
in Bangladesh but any other country may register IPR for these varieties if we fail to
register. Thus, our farmers may have to pay royalty for production of our own variety of
rice. A number of nations have developed and are developing intellectual property
strategies in support of science and technology, investment promotion, or promotion of
culture and creativity. The gradual enforcement of IPR in different countries will make
products and services costlier for the nations without an IPR since the user of IPR of
other countries will have to pay royalty.

The IP policies and strategies, which support cultural, educational and research
institutions in public and private sectors and make it possible for institutions to develop
and manage IP assets. In the intensely competitive national and globalbusiness
environment, intellectual property rights constitute an integral part of the intellectual
capital of a business enterprise. The future economy will be a knowledge-based economy
and economic growth can be stimulated by the effective utilization of science
andtechnology. Business enterprises can protect their knowledge assets only through
registration of IPR with the relevant authority.

An effective IP policy can support accumulation of national intellectual property assets,

attract mutually-beneficial foreign direct investment (FDI), stimulate local research and
development, prevent brain-drain by providing incentives, enhance revenues and exports
and develop national brand and cultural identity.

The developing countries are lagging behind the developed countries and some countries
like China and India have taken initiatives to register different innovations and
indigenous products under the IPR.

The International Property Rights Index (IPRI), initiated by a US organisation for a series
of IPRI studies for the Hernando de Soto Fellowship Programme, surveys and publishes
IPRI index every year. Intellectual Property Rights Index 2011 of Bangladesh shows a
very poor status in the global and regional context.
Bangladesh's index score was 2.8, with its world ranking at 125 place among 129
countries surveyed and regional ranking, 19 out of 19 countries. In the category of
Protection of Intellectual Property Rights, Bangladesh's score was 3.7 while its world
ranking was 109 out of 129 countries and regional ranking was 18 out of the 19 countries
surveyed. Its Patent Protection score was 3.7, world ranking was 104 of 129 and regional
ranking was 18 of 19. Bangladesh's Copyright Piracy score was 0.9, world ranking was
104 of 129 and regional ranking was 18 of 19.

Our intellectual properties are almost unprotected by the relevant authorities. The above
statistics indicate that the market in Bangladesh continues to be severely hampered by
piracy, with piracy rates among the highest in the world. Bangladesh has a long way to go
to achieve even regional standards of protection of intellectual property rights.

The European Commission and the World Intellectual Property Organisation launched a
project which aims to modernise the intellectual property system in Bangladesh and to
help the country maximize the benefits of IP protection. The project is designed, through
various capacity-building measures, to promote effective management of the intellectual
property systems (mainly focusing on industrial property), but will also address the
challenges faced by Bangladesh in meeting its international obligations. The project will
also roll out programmes to promote IP awareness in key sectors including universities,
R&D institutions, small and medium-sized enterprises, creative industries and the
business community, and will promote IP teaching and education through fellowships,

Bangladesh participates in the Generalised System of Preferences (GSP) programme, a

trade benefits programme that provides duty-free access to the United States for certain
products. The criteria of eligibility to enjoy this benefit includes that a country provides
'adequate and effective' copyright protection. A small percentage of products coming into
the United States from Bangladesh qualify for this duty-free treatment. Specifically,
during 2007, US $23.8 million in goods, or about 0.7% of all of Bangladesh's exports to
the United States, entered under the duty-free GSP code. During 2008, more than $21.6
million in goods, or almost 0.6% of all of Bangladesh's exports to the United States,
entered the United States under the duty-free GSP code. In order for Bangladesh to
continue to qualify for this trade benefit, it must be able to demonstrate that it meets the
eligibility criteria.

Bangladesh is exempt from implementing the general provisions of the Agreement of

Trade-Related Aspects of Intellectual Property Rights (TRIPS) until 2013 and has a
further extension until 2016 for implementing TRIPS provisions on patents on
pharmaceutical products and related processes. The pharmaceutical sector is developing
very rapidly due to exemption of IPR for export to all other countries. Bangladeshi
medicines will be costlier after introduction of TRIPS by 2013. Bangladesh by this time
may develop some formulations of its own for production of medicine to keep the global
export and local market. Prime Minister Sheikh Hasina made a plea to the World
Intellectual Property Organization (WIPO), a United Nations agency, for another 15
years' waiver from the intellectual property rights' regime for the least developed
countries (LDCs) to manufacture the patented pharmaceutical products.

Bangladesh's IP laws have their origin to the days when the country was part of the
British India, although such laws have been modified several times to meet the demands
of international practices and obligations but these are far behind the international
standard. IP rights in Bangladesh are handled by two separate government ministries:
Industrial matters are administered by the Department of Patents, Designs and
Trademarks, part of the Ministry of Industries; and Copyright and related rights are the
responsibility of the Copyright Office, part of the Ministry of Cultural Affairs.

All the trading activities are regulated by the Ministry of Commerce under the Imports
and Exports (Control) Act 1950. In addition, Section 15 of the Customs Act prohibits the
import of goods, whether by air, land or sea, that fall within the following categories:
Goods marketed under a counterfeit trademark or false trade description; goods made or
produced outside Bangladesh and intended for sale under a design in which the copyright
exists under the Patents and Designs Act in respect of the class to which the goods belong
or any fraudulent or obvious imitation of such design without a licence or the right
holder's written consent, and goods made or produced outside Bangladesh and marketed
under any name or trademark or purporting to be the name or trademark of any
manufacturer, dealer or trader in the country.

The development of IP is to a large extent dependant on effective enforcement

mechanisms for protection of the monopolistic aspects of the intellectual property rights.
In Bangladesh, the administrative enforcement is entirely left to the police and the
customs authorities, in addition to what little is dealt with by the officials of the various
departments dealing with intellectual property. The police is overworked, lacks logistics
and the technical know-how of intellectual property rights. So is the case with the
customs department. There is no separate agency for enforcement of intellectual property
rights. As such, prevention of, and punishment for, violations of IPRs in Bangladesh are
very low in proportion to their infringements.

The Department of Patents, Designs and Trademarks is a quasi-judicial organisation, with

the department's registrar acting as a tribunal. Any appeal against the registrar's decisions
must be made to the High Court. The existing laws in Bangladesh, relating to IP matters,
are: The Patents and Designs Act, 1911, the Trademarks Act, 2009, the Trademarks
Rules 1963, the Copyright Act, 2005; the Copyright Rules 1967, as modified in 1983; the
Bangladesh Penal Code 1860, the Code of Civil Procedure 1980, the Customs Act, 1969
and the Consumer Rights Protection Act, 2009.

Bangladesh is also a signatory to the following international agreements: The World

Intellectual Property Organisation Convention, since 1985, the Paris Convention for the
Protection of Industrial Property, since March 1991, the Berne Convention for the
Protection of Literary and Artistic Works, since 1999, and the Agreement on Trade-
Related Aspects of Intellectual Property Rights, since 1995.

Intellectual property has become a global issue and it is important that Bangladesh deals
with it effectively considering the fact that there are so many IP disputes in the country.
A good number of them also involves many involving foreign countries. Most of the
countries have adjusted their relevant legislations to comply with the conventions and
obligations under different protocols. Bangladesh was obligated to bring its century-old
laws and enforcement efforts in line with TRIPS compliance requirement by January 1,
2000. Unfortunately, there has been no significant progress even until today, which may
jeopardise our national interest.

The writer is a part-time teacher at Leading University and he is pursuing

PhD in Open University, Malaysia. He can be reached at e-mail:
shah@banglachemical.com