Afghanistan's Agenda for Action - Economic Growth - usaid

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Afghanistan’s Agenda for Action: Developing the Trade & Business Environment – August 2007the IPR laws? How will stakeholders be informedabout the content of these regulations?• How are private companies and the legalcommunity to be apprised of the new structure inAfghanistan for protecting IPR?• How do Afghanistan’s draft laws and proposedinstitutions conform with the expectations of theWorld Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS)?• What other laws, particularly concerning civil orcommercial procedure, must be amended in thefuture to be reconcilable with a new IPR regime?Although the Afghanistan National DevelopmentStrategy has resulted in a strong effort to “put laws onthe books,” the area of IPR cannot move forwardwithout a better defined agenda for implementation.Supporting InstitutionsBefore and after the enactment of new IPR legislation,there will be a need to integrate and educate thevarious constituencies that will necessarily be affectedby the new regime.Among the critical agencies charged with watching forIPR violations is the Customs Department. At thistime, training in identifying counterfeit goods does notoccur and border officials are unfamiliar withprocedures to be followed if counterfeit goods areencountered.Unfortunately, there is no bar association ororganization of lawyers that could assume the roleof providing continuing legal education for commerciallawyers, not only in IPR, but in all commercial subjects,nor is there a viable judge’s association.The state of legal education and higher educationin economics is similarly poor. With the possibleexception of trademark law, IPR is not yet among thesubjects covered in the curriculum at the KabulUniversity Faculty of Law and Political Science. It likelyis never mentioned in any of the nation’s eightadditional public universities.On the other hand, as suggested in earlier sections ofthis Report, the Afghan International Chamber ofCommerce may be well positioned to take the lead ineducating its community of stakeholders about IPR. TheAICC’s relatively progressive membership, whichincludes a variety of manufacturers, may be interestedin the topic particularly from the perspective ofattracting foreign investment – that is, many foreigncompanies evaluate IPR protections carefully beforemaking an investment decision. The State-affiliatedAfghan Chamber of Commerce and Industry isclearly less inclined to march into this new, relativelysophisticated territory, but its infrastructure of officesthroughout the country could be a useful resource foreducating interested parties over time.One supporting institution that will be critical in theimplementation of any new IPR regime are the media,including newspapers, television, and, perhaps mostpromising, radio. As discussed previously, theopportunities for public education available through themedia are not yet being exploited. Governmentministries and other change agents – including donors –do not provide sufficient access to the media so thatthey can thoroughly and accurately carry the news ofchange to the public. This situation must change inorder for significant new systems, such as nationalimplementation of IPR rights, to take root.Social DynamicsWhether now is the time to drive for a comprehensivesystem of IPR registration and enforcement inAfghanistan is a threshold question that has not yetbeen fully examined by the Afghan government or thedonor community.On one hand, some observers assert that IPR shouldbe given very low priority, in light of the current stageof the country’s development. Other issues, such asenergy and infrastructure and even other commerciallaws, are considered of far greater importance in jumpstartingeconomic growth. The small size ofAfghanistan’s economy means that it presents far lessof an IPR threat to international commerce and foreigninvestment than that of many other countries.Afghanistan is not, for example, on the Office of the136
Afghanistan’s Agenda for Action: Developing the Trade & Business Environment – August 2007U.S. Trade Representative’s “Section 301 Watch List”for 2006, a survey of major violators of IPR standards.On the other hand, some actors argue that a legalstructure that supports IPR is necessary if Afghanistanaspires to join the World Trade Organization, attractforeign investment, and protect its cultural heritage.Within the WTO, the Agreement on Trade-RelatedAspects of Intellectual Property Rights (TRIPS)establishes minimum levels of protection that eachgovernment is required to give to the intellectualproperty of fellow WTO members (although the WTOdoes afford to its poorer members several years tocomply). Establishing a framework for IPR willnecessarily be part of the country’s WTO accessionstrategy, another policy discussion that is still takingplace. Any law that is submitted to Parliament should,of course, be reviewed for consistency with WTOrequirements.From the larger actors in the private sector, there isalready some demand for IPR protection. As foreigncompanies move in – and they have – they desire toprotect their trademarks through a system that is lesssuspect than the current system of registration courts.In addition, local producers of pharmaceuticals feelthreatened by cheap imports from neighboringcountries and suggest that stronger protection onpatents and trademarks may quell this onslaught tosome degree. To this end, they advocate better trainingof Customs officers in seizing unlawful goods.Finally, Afghanistan faces the challenge of “selling” anIPR regime to a general public that has an unusuallyhigh rate of illiteracy and an enormous urgency tosimply avoid the daily perils of poverty. The drafters ofthe proposed Law on Copyrights summarized themystery to unfold:There is a rich tradition of music, poetry, andtextile arts in Afghanistan. There are alsocontemporary filmmakers, photographers,writers, etc. who will benefit from a copyrightlaw. It remains to be seen whether an author’sautonomy in his work, which we in thedeveloped world may take for granted, will beintuitive to the Afghan people or not. 190190 The Clean Slate, supra, at 25.Recommendations• Prior to the enactment of any new law or set oflaws, Afghanistan should develop a comprehensive,long-range plan for conception and implementationof a new IPR regime. The formulation of policyshould take into consideration the country’sinterests in accession to the WTO. In addition, theplan must entail not merely a vision for enactinglaw, but also a shared understanding of theinstitutions that will be created through new lawor the additional responsibilities that will be placedinto existing institutions. Ideally, the plan will entailthe creation of a single institution charged with IPRregistration, implementation, and enforcement,rather than scattered offices that are independentlyresponsible for trademark, copyright, patents, andindustrial design. It will also entail harmonization ofthe IPR regime with the country’s emergentprocedural laws. Consensus over the country’slong-range plan for IPR should emerge from theexecutive, legislative and judicial branches ofgovernment, and include adequate consultationwith the public sector. A period of training maynecessarily have to precede the development of aconsensus.• In the long run, courts should not be responsiblefor registering trademarks or any other form ofintellectual property. That function properlybelongs in an executive-branch agency.• With respect to all the public and privatestakeholders that are created or already existwithin the context of a new IPR regime, plans fortraining and substantial technical assistance shouldbe devised.• Afghanistan needs a bar association that, at thevery least, can provide a forum for continuing legaleducation for commercial lawyers. There similarlyneeds to be an effective judicial training programor institute that addresses the substance ofcommercial law. Donors engaged in traininglawyers and judges should work to develop one ormore such organizations. IPR training for lawyersand judges should, for the most part, take placethrough the new associations, so that sustainabilityin training will prevail over the ad hoc.• Within the stake-holding community, legaleducation should not be neglected. A program forteaching law professors about IPR, so that they inturn are capable of teaching their students, shouldbe included in any technical assistance program.137
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