Malaysia up to speed on in­tel­lec­tual property laws

The Sun (Malaysia) - - MEDIA & MARKETING -

KUALA LUMPUR: Malaysia’s in­tel­lec­tual property (IP) laws are al­most fully com­pli­ant with Trans Pa­cific Part­ner­ship Agree­ment (TPPA) re­quire­ments, said Shearn De­lam­ore & Co part­ner In­dran Shan­mu­ganathan ( pix).

“So far as the TPPA is con­cerned, they’ve got a very ex­ten­sive IP chapter. But in terms of com­pli­ance, Malaysia is al­most there, there are not much leg­isla­tive changes that need to be made to our Malaysian leg­is­la­tion to bring it up to TPPA stan­dards. I think we are more or less there even without the TPPA,” he told re­porters on the side­lines of The King’s Dis­course on the TPPA on Satur­day.

In­dran said there will be some changes, which are more struc­tural amend­ments, but Malaysia is essen­tially up to speed in terms of com­ply­ing with TPPA stan­dards.

“I wouldn’t say it is such a big con­cern. In ad­di­tion to that, there’s also a health pro­vi­sion in terms of the ob­jec­tives of the TPPA which al­lows par­ties, in­di­vid­ual coun­tries to leg­is­late on ar­eas where health needs are taken care of.

“So if there is for some rea­son a fear that phar­ma­ceu­ti­cal com­pa­nies may get an added ad­van­tage, it al­lows mem­ber states to en­sure that pub­lic health is also given some pro­vi­sion,” he said.

In terms of im­ple­men­ta­tion, In­dran said, Malaysia has a good court sys­tem which moves fairly quickly and most IP cases that are heard in the High Court will have a de­ci­sion within 12 to 18 months, which is con­sid­ered fast by cur­rent stan­dards.

In­dran said his con­cerns are more on the crim­i­nal side and the need for more spe­cialised judges in Malaysia.

“We have a spe­cialised IP judge in Kuala Lumpur to deal with IP mat­ters but it is not nec­es­sar­ily the case in other states,” he said.

On the crim­i­nal side, In­dran said, the min­istries are quite fast in ini­ti­at­ing en­force­ment ac­tion but the prob­lem is more on the pros­e­cu­tion side.

“Af­ter they have ini­ti­ated the ini­tial raid and en­force­ment ac­tions, it takes a bit longer for the pros­e­cu­tion. In that area there’s a lit­tle bit of a back­log … maybe on the gov­ern­ment agency side, the ques­tion is, could they be a lit­tle more proac­tive? They have got cer­tain pro­grammes that brand own­ers can par­tic­i­pate in but in some cases they may not be as ef­fec­tive,” he added.

In­dran said Malaysia op­er­ates at a fairly high stan­dard in terms of IP laws and does not fore­see a sig­nif­i­cant im­pact on busi­nesses.

“There are some changes that need to be made. For ex­am­ple, in terms of trade­mark law, at the mo­ment we recog­nise con­ven­tional trade­mark rights. The TPPA is plan­ning to in­tro­duce the recog­ni­tion of sound trade­mark and smell trade­mark. That’s an ex­ten­sion of trade­mark pro­tec­tion.

“In terms of copy­right, the TPPA will ex­tend the du­ra­tion of copy­right pro­tec­tion. Cur­rently in Malaysia it is 50 years plus the life of the au­thor. Once TPPA comes into force, it is 70 years plus the life of the au­thor and it has ret­ro­spec­tive ef­fect. So you may have an in­stance where copy­rights are re­vived,” he said.

How­ever, for­mer law pro­fes­sor at Univer­sity of Malaya Gur­dial Singh Ni­jar said the ex­ten­sion of the copy­right pro­tec­tion du­ra­tion could have a ma­jor im­pact on small and medium en­ter­prises (SMEs) that make up 90% of busi­nesses in Malaysia.

He said SMEs rely on the ex­piry of the copy­right to use the in­for­ma­tion for their busi­nesses as small com­pa­nies can­not af­ford to do their own re­search and devel­op­ment.

“With re­stric­tive IP laws, SMEs have to ei­ther buy the tech­nol­ogy or do their own re­search. This will have a ma­jor im­pact on the SMEs,” he added. - by Eva Yeong

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