Afghanistan's Agenda for Action - Economic Growth - usaid

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Afghanistan’s Agenda for Action: Developing the Trade & Business Environment – August 2007• Part One. Scope and Provisions of Protection- Scope and Provisions of Protection- Author's Economic Rights- Author’s Moral Rights- Ownership of Works Made for Hire- Term of Protection- Exploitation of Rights- Restrictions on Copyright and NeighboringRights- Provisions relating to the Work after thedeath of the Author- Provisions related to some Works• Part Two. Neighboring Rights- Rights of Performers• Part Three. Office of the Protection ofCopyright and Neighboring Rights• Part Four. Preventative Measures andSanctions• Part Five. General (including issues ofenforcement).With a total of 61 articles, the draft law is largelyharmonized with international standards and, as statedby the drafters, will likely supply sufficient grounds onwhich the country can join the major internationaltreatises on copyright. 187 But it also contains someimportant omissions.First, the concept of industrial design is one that, in theabsence of a separate law, might properly be developedthrough a new Law on Copyright, perhaps as a“neighboring right.” The term “industrial design”pertains to the design of products made by larger-scaleindustry for mass distribution. In Afghanistan, anobvious area in which protection of industrial designmay be a concern is that of carpet and textilemanufacturing. (One exporter of carpets interviewedfor this Diagnostic related his experience that hiscontemporary patterns are used by othermanufacturers without attribution or compensation “allthe time.” He noted, however, his belief that he is notharmed by this fact due to the superiority of thematerials he uses.) Although the draft copyright lawapplies to “Works of applied art, whether handicraft orproduced on an industrial scale” (Art. 2(A)(8)) and to“textile Works” (Art. 2(A)(10)), it does not at anypoint reinforce the importance of protecting theartistic designs that are found in a manufacturingenvironment. Doing so might indirectly strengthen theposition of Afghan carpets in the internationalmarketplace – that is, it would underscore the State’scommitment to maximizing the value of the beautiful,original textile products produced in Afghanistan.Second, although the draft law states that there will bepenalties for copyright violation, it leaves blank thestatements of specific fines.Third, as noted, the draft law in its current form plainlyillustrates the lack of consensus concerning whichagency or combination of agencies will be responsiblefor registering copyrights and for investigating andprosecuting violations. The drafters of the law havestated their belief that a single IPR unit, one that isresponsible for implementation and enforcement oftrademark, copyright and patent law, would be thepreferred mechanism for registration and, at least onan administrative level, for investigation andenforcement. Such an institution would be “a sort of‘one-stop shop,’” one that “leverages Afghanistan’slimited resources and provides foreign investors withan efficient office with which to correspond,” thedrafters suggested. 188The draft Law on Copyright itself, however, places an“Office of the Protection of Copyright and NeighboringRights” squarely in the hands of the Ministry ofInformation and Culture (Art. 47). In addition toconcerns over dissipating the country’s limitedresources by establishing more than one office that isconcerned with the enforcement of IPR, an additionalapprehension has been voiced: namely, that, based onits recent history, this Ministry may be more interestedin censoring works of art than in protecting them.Moreover, the draft law is virtually silent concerninginvestigation and criminal prosecution of copyrightviolations. Ultimately, the division of responsibilitiesamong an IPR administrative agency, line ministry187 Id.188 Id. at 25.134
Afghanistan’s Agenda for Action: Developing the Trade & Business Environment – August 2007investigators, Customs police, the Attorney General,and/or Ministry of Justice must be agreed upon amongthose in a position to build understanding andconsensus over the matter. Then, the draft laws shouldreflect that shared understanding. Also, administrativerules and the criminal procedure code must be draftedor amended to reflect the plan for investigation andenforcement of IPR violations.D. PatentA patent is a grant made by a government that confersupon the creator of an invention the sole right tomake, use, and sell that invention for a set period oftime. In Afghanistan, the draft Registration of ForeignPatents Act acknowledges through its brevity (11Articles) and limited scope that Afghanistan is simplynot at a stage where it can do much more than accordlegal status to patents granted in other countries. Thecountry is not ready, in other words, to engage in thecomplicated and highly scientific exercise of examiningpatent applications for originality and authenticity andthen granting original patents. But the act of registeringforeign patents, and thereby providing them with legalprotection, signals to foreign investors that their bonafide inventions will not be illegally copied in Afghanistanwithout legal redress.Even prosecuting violations of foreign patents is acomplex issue that may be premature for Afghanistan’scurrent legal and business environment. Through itsinability to name an administering agency, the draft lawagain illustrates that fact that there is not yet aconsensus in Afghanistan about how IPR will beimplemented and enforced.As Afghanistan’s economic viability becomes moresubstantial, the absence of meaningful patentprotections may be of increasing concern, in particularin the areas of seed protection and protection ofpharmaceuticals. A draft National Seed Policy wasdeveloped in 2002, which, among other goals, aimed toprotect the interests of owners of the rights to certainplant varieties and hybrids. 189 Pharmaceuticalproduction does take place in Afghanistan at this time,but whether producers currently observe the patentrights to these products as registered in othercountries was not a topic examined during thisDiagnostic.Implementing InstitutionsAt this time, registration of trademarks takes place inthe commercial courts in a manual process thatinvolves hand-written ledger books authenticated bypersonal photographs and signatures. Individuals whohave gone through the process of registeringtrademarks report that courts typically requestunpublished “facilitation fees” in order to timelyprocess a trademark registration request.The drafting of the new IPR regime is the responsibilityof the Ministry of Commerce and Industry. To theextent in the near future that the Ministry will push forthe enactment of the IPR laws, it must first take thelead in resolving, through inter-agency and privatesectorconsultation, just how such a nascent system isto be administered. The questions that must beanswered include the following:• Should the administration of IPR functions takeplace through a single, stand-alone agency, orshould responsibility for individual areas –trademark, copyright, patents and possiblyindustrial design – fall within the jurisdiction ofindividual ministries with closely aligned functions?• Should courts have any role in the registration ofIPR?• What agency or agencies should be charged withhandling complaints over IPR violations, includingthe investigation of complaints?• Who should be responsible for criminalprosecution of IPR violations? Will privateprosecutions be an option? Assuming the Ministryof Justice has a role in prosecution, how will itsstaff be trained?• What should the role of courts be with respect toenforcing IPR violations, and how should judges betrained to assume these responsibilities?189Seehttp://www.icarda.org/seed_unit/pdf/AFGHANISTAN_SEED_POLICY.pdf.• What is the core set of administrative regulationsthat must be drafted following the enactment of135
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