Introduction
Intellectual property we actually mean which is intangible and comes from creativity, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. All kinds of intangible creativity fall under the intellectual property term. For example, a writer wrote a book on his or her life or wrote a novel, that writing will be considered as an intellectual property. A scientist discovered a machine that invention will be taken as account of intellectual property again a music composition of an artist will also follow the term intellectual property. Anything creative which also is intangible is known as intellectual property[1]. Again according to World Intellectual Property Organization (WIPO), intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. Intellectual property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs[2].
Everybody has his or her own right to protect his or her intellectual property weather it is music composition, any discovery or invention, any literature or writing. This protection is backed by law. One can protect his own creativity from others to copy it; he or she can apply intellectual property right at any time. Intellectual property right restricts one from copying others idea or creation in an illegal way. If the work or creation is protected under the Intellectual Property Right Law, no one can copy it in any way. If it is copied, then legal actions will also be implemented according to the deeds[3]. This (IPR) or Intellectual Property Right is strictly followed in many developed and also in developing countries. But in Bangladesh, the situation is not the same like other countries. Here, no one in this country is aware of IPR. People here busy trying commercialize others creativity by violating Intellectual Property Right Laws. If anyone comes up with an idea which creative, others also copy it and at the end it does never takes the floor or it gets ruined. Our government of our country is also very weak in implementing such laws in our country which will bring good rather anything worse. Government is also very absent minded about this situation. Our argument is that it does acknowledge in principle the case for strict IPR protection, but this can be done only in phases suited by its own ground reality. The reality is that absence of international IPR protection for some decades has spawned employment for millions, so an overnight clampdown on IPR violators would cause social unrest.
But if we look to our neighbor country India, the people and government is aware and trying to be strict about the Intellectual Property Right (IPR) as it follows the WTO (World Trade Organization) standard. However their past decades were also under the line. The people grew awareness among themselves about IPR and classification of copyright infringements as “cognizable offenses” expanded police search and seizure authority. While the formation of appellate boards under the new legislation speeded prosecution, local attorneys indicate that some technical flaws in the laws, which require administrative approval prior to police action which needs correction.[4]
India is also a country of South East Asia where we are also located. But the rate of IPR flaws of our country is very high than India. This is because lack of awareness among people about the international situation and also absent mind of our government. But it is mandatory to ensure Intellectual Property Right in Bangladesh as it is a developing nation which will also follow WTO standard in future[5] and the bottom line is our country should consider itself as a responsible member who strictly follows Intellectual Property Right (IPR).
Research
In order to start my research, I would like to state a note by James F. Moriarty U.S. Ambassador to Bangladesh, “Why should Bangladesh care about protecting intellectual property rights? Intellectual property rights (IPR) are the legal mechanisms – copyrights, patents and trademarks – that ensure that the products we buy are genuine. Dangerous and defective counterfeit products, from counterfeit medication, to toothpaste, to auto parts, put the lives of consumers at risk. A strong IPR system ensures that inventors and innovators are rewarded for their ideas. IPR protections foster an environment in which creative and innovative industries can thrive and contribute to economic development worldwide. At the dawn of the 21st century, an increasing share of global economic output is generated by services, many of which depend on new and evolving technologies. 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. Progress in nanotechnology, information technology, and clean energy fosters economic development and improves standards of living worldwide.
Intellectual property rights don’t just protect inventors or large corporations; they protect local entrepreneurs and artists. A clear example of innovation in Bangladesh is the pioneering work of Mustafa Jabbar, inventor of the Bijoy Bangla keyboard and related software. The recent court decision recognizing Mr. Jabbar’s ownership of the technology he developed is an important step in encouraging innovation. Bangladesh’s film-makers such as Catherine and Tareque Masud have won critical international acclaim for their films but frequently suffer the theft of their work in their home country.
The illegal sale of stolen music and films in nearly all of Bangladesh’s markets is a troubling indicator of the scale of the IPR protection challenge. Developing countries too often assume that IPR only benefits first world nations. This perspective unfairly discounts indigenous capacity for innovation – as if good ideas worth protecting and promoting can only come from the first world. Officials in less developed countries cite the World Trade Organization’s TRIPS agreement as granting their countries exemption from international IPR standards until 2013 (and 2016 for pharmaceutical patents.) Relying upon these temporary “exemptions” is a choice fraught with risks. An economy built on weak IPR foundations is one in which the abuse of foreign and domestic IPR occurs hand-in-hand. Any country seeking free-trade agreements cannot ignore today’s work to ensure meeting future obligations to protect IPR. The human potential to create and innovate is a boundless worldwide resource. Clear rules and strong enforcement of IPR allows countries to sustain economic development and to build recognizable and respected brands worldwide. Bangladesh’s innovators, inventors and artists have proven themselves worthy of the highest awards and recognition world wide – it’s time that Bangladesh’s domestic IPR mechanisms now grant them the same honor.”[6]
The situation of Intellectual Property Right in Bangladesh is very shallow that it can be seen clearly in a naked eye. It is because mainly of lack of awareness among the people and negligence of our government. A simple example is very precise to take out the scenario is copy of music by violating the Intellectual Property Right Law. From giant corporations to fusion artists, they copy and commercialize others composition. For example new age fusion artists make copy and remix the original songs into another version which is a clear example of violating IPR laws.
Again on the other hand, telecom industries like Grameenphone, Banglalink and others also copy music and sells as caller tunes. This is also commercialization of original music by violating IPR laws. Again pirated versions of software and music CDs are also glowing example. This piracy chain works so smoothly that each and every person is depended upon these versions or music and software that we never want to buy the original one. In order to maintain a sound environment Intellectual Property Right should be formulated by the government strictly in our country. Otherwise we will not be able to maintain the WTO standard in future as a developing nation.[7] The strict laws against IPR should be implemented thoroughly. If our neighbor country India can try handling it, why we cannot make it possible.
Currently our government is trying to maintain a standard for protecting IPR by enforcing mechanisms which are well organized along with the agencies. According to his writings, “The development of the IP system depends on the effective enforceability of IP rights. Bangladesh present IP enforcement mechanisms are well organized and the agencies are now well coordinated and their effective measures can limit the number of violations.”[8]
Infringement is a common problem in the developing countries like Bangladesh but the law enforcing agencies are showing significant developments in enforcing and protecting the Intellectual Property (IP) Rights in Bangladesh. Acquiring and or securing IP rights is of little economic value if these rights cannot be enforced effectively. The development of the IP system depends on the effective enforceability of IP rights. Bangladesh present IP enforcement mechanisms are well organized and the agencies are now well coordinated and their effective measures can limit the number of violations. The Government has enacted the new law, The Trademarks Act, 2009 giving the scope to protect the services under International Classes 34-45. The said Act has a clause (109) authorizing the customs officials to call for records and disclose the source of importing items prohibited under the Customs Act, 1969, Section 15(d)(e) & (f).
To enforce the IP Rights or to limit the violations of IP Rights in Bangladesh the different agencies of the Bangladesh Government are empowered to take effective action under different provisions of the law. The present functional agencies are – Mobile Courts, Rapid Action Battalion (RAB) and the local Police. The agencies are working under different teams in different areas. The IP Right holders can take necessary assistance and co-operation from the aforesaid agencies.
It is possible to minimize the risk of violations by routine monitor and investigation of the markets in different fields and in different parts of the country. The necessary legal action depends on the nature of violation. However, remedies are available under the following provisions:-[9]
The Trademarks Act, 2009
Chapter X: Offenses, Penalties and Procedure
Sections 73 – 91 of the Trademarks Act, 2009 are the relevant provisions for criminal proceeding for trademarks right violation in Bangladesh. If anybody commits offense as described in items (a) to (g) in Section 73 shall be liable for the first offense to pay penalty of Tk. 200,000 with sentence of two years and Tk. 300,000 and three years sentence for the second offense. The other sections are also open depending on the nature of violations.[10]
The Customs Act [IV of 1969], Chapter IV
Prohibition and Restriction of Importation and Exportation
Section-15. Prohibitions. No goods specified in the following clauses shall be brought, whether by air or land or sea, in to Bangladesh:-
(d) Goods having applied thereto a counterfeit trademark within the meaning of Bangladesh Penal Code or a false trade description within the meaning of the Merchandise Marks Act.
Section 17 – Detention and confiscation of goods imported in breach of Section 15 or Section 16. Where any goods are imported into or attempted to be exported out of Bangladesh in violation of the provisions of Section 15 …. Such goods shall, without prejudice to any other penalty to which the offender may be liable under this Act, or any other law, but subject to rules, be liable to seizure and confiscation.
Recent Action: Munmuns Leather Pvt. Ltd. is the dealer for Bangladesh for American ‘Samsonite’ brand. They are informed thoroughly reliable source that a trader has opened Letter of Credit to import items including counterfeit ‘Samsonite’ suitcases. They lodged a formal General Diary with the local Police Station on October 7, 2010 informing the importation, and the details of importer and also made a representation to the Authorities, The Joint Commissioner of Customs in Dhaka and Chittagong. They immediately contacted with the Authority for necessary action for not delivering the goods. The Authority being satisfied locked the assignment in Dhaka on October 10 and in Chittagong on October 11, 2010. The same procedure is applicable for all unlawful importation with counterfeit trademark[11].
Bangladesh Penal Code 1860
There are various sections that deal with trademarks infringement and other violations. The relevant provisions are Section 78 to 489. Recent Action: Samsonite Corporation vs Moon Light Travels.The local agent of Samsonite Corporation initiated a criminal proceeding under the Penal Provision against a trader who imported counterfeit ‘Samsonite’ product in the year 2008 for marketing in Bangladesh. The Agent investigated markets through their own investigator and found counterfeit product in a famous market, Shahbagh Biponi Bitan. Accordingly the Agent informed the same to Rapid Action Battalion (RAB-3). The Commanding Officer of RAB-3 entrusted the operation to one of its team leaders, Assistant Superintendent of Police. The team leader investigated the place and found the allegation true. The RAB Team conducted raid on February 27, 2008 and arrested three people with huge counterfeit ‘Samsonite’ product. The local police lodged criminal action under the penal provision. The infringers found no other alternative but to surrender with the local Agent and accordingly disclaimed entire seized items of 310 big suitcases in quantity in favor of the local agent and given adequate compensation including undertaking for not trading anymore with counterfeit ‘Samsonite’ product. The matter disposed of in February 2010 on the basis of out of court settlement.[12]
The Code of Civil Procedure 1908
Kraft Foods Globe Brands LLC. vs Ibnsina Food Products Pvt. Ltd. The brand, ‘Tang’ is a popular name in concentrated form for preparing soft drinks product. Kraft has secured the IP rights in Bangladesh in the year 1987 and has business since long through its agent, Sajeeb Corporation. A Bangladeshi small entity, Ibnsina Food marketed preparations for soft drink under brand, Ibnsina Orange Tang. On an application with the local police station the enforcing agencies seized the items and put the people under trial. The District Court has also issued an and-interim order restraining the Ibnsina for not trading with the mark ‘Tang’[13]. Ibnsina tried to obtain registration for the mark with suffix Tang but the Trademark Department has rejected all their applications.[14]
For better understanding building and creating awareness is mandatory among us. By awareness we understand to know something, knowing that something exists and is important to create interest in something. Arranging workshop and seminars can educate our people in order to understand the value of protecting intellectual property. Training means process of acquiring knowledge and skill to perform certain job. Primarily the persons responsible for the enforcement of the provisions of copy right Act should undergo training. In course of time creators, authors, producers, Transferees assignees, success in interest may take part in the training. Copy Right office under copyright Act, 2000 has been established in Bangladesh and the office is headed by the Copyright Registrar[15]. The people of Bangladesh should be made aware of the importance of protecting copy right and they should be conversant with the basic knowledge about operation of the copy right.
In order to boost up creative effort suitable legal frame work needs to be established. The civil and criminal laws are in place to protect the rights of the creators, inventors and authors under the provisions of Copy right Act and other laws. Copy right Registrar has been working under the provisions of Copyright Act 2000 with its amendments. In order to make the provisions of the Copyright Act effective/functional the office of the Registrar need to be strengthened and number of the officials with up-to-date knowledge about the subject may be increased. The bangla version of the Copyright Act is not easily understandable and as such the provisions of the law may be made clear. The training courses may be organized for the officials of the Copyright Office and those of other related organizations. With this end in view the Intellectual Property Training Institute may be set up in Bangladesh. The Institute will impart training and education and conduct research. Bangladesh Public Administration training Centre, Savar, Dhaka conducts foundation training for the young officers of all cadres. The Centre also organizes training for mid level officers and Seminar officers. The topic on Intellectual property rights may mandatory be included in the modules of these training courses. Seminar, Workshop and discussion meeting should be organized in the University particularly departments of law should take initiative in this respect. Media, both print and electronic can play a pivotal role in creating public awareness and public opinion about the Intellectual property Rights. Topic on Intellectual property rights may find place in the Syllabus of the business related courses in education Institution of the tertiary level.
Conclusion
It is a matter of hope that the government of Bangladesh is now working to protect intellectual property rights. Otherwise our country will not be able to stand to the WTO standard in future as a developing one. Recently Director General of World Intellectual Property Organization (WIPO), Francis Gurry meets Health Minister AFM Ruhal Haque so that they can help for intellectual property.[16]
It is a great opportunity for our country to develop intellectual property rights protection. World Intellectual Property Organization (WIPO) came forward to help us. Our government has taken the opportunity from the WIPO. Now they are working together and Bangladesh arranges workshop and seminars from around the country.
Bibliography
1. Oxford Dictionaries
2. World Intellectual Property Organization (WIPO), www.wipo.int
3. Intellectual property rights in India, www.indiaonestop.com/markets-intellectual-prop-rights.htm
4. PROTECTING INTELLECTUAL PROPERTY RIGHTS: CHALLENGES AND OPPORTUNITIES. by, James F. Moriarty
5. Enforcement of Intellectual Property Rights, by Md. Delwar Hossain, Advocate
6. Awareness Raising and Training of Copyright in Bangladesh, by Md. Aftabuddin Khan, Former Additional secretary, Government of People’s Republic of Bangladesh
7. WIPO to help Bangladesh for intellectual property, The Daily Star, (2010, July 20), Business
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[1] Oxford Dictionaries, online, retrieved on (2010, November 29). Available in http://oxforddictionaries.com/view/entry/m_en_gb0415220#m_en_gb0415220
[2] World Intellectual Property Organization (WIPO), online, retrieved on (2010, November 29). Available in http://www.wipo.int/about-ip/en/
[3] Intellectual Property Right (IPR)
[4] Intellectual property rights in India, online, retrieved in (2010, November 29). Available in http://www.indiaonestop.com/markets-intellectual-prop-rights.htm
[5] World Trade Organization (WTO) Standard
[6]PROTECTING INTELLECTUAL PROPERTY RIGHTS: CHALLENGES AND OPPORTUNITIES,
James F. Moriarty U.S. Ambassador to Bangladesh. EMBASSY OF THE UNITED STATES OF AMERICA PUBLIC AFFAIRS SECTION, Available in http://dhaka.usembassy.gov
[7] World Trade Organization (WTO) standard
[8] Enforcement of Intellectual Property Rights, by Md. Delwar Hossain, Advocate
[9] Rules and regulations against Intellectual Property Right (IPR)
[10] Chapter X: Offenses, Penalties and Procedure, The Trademarks Act, 2009
[11] Prohibition and Restriction of Importation and Exportation, The Customs Act [IV of 1969], Chapter IV
[12] Bangladesh Penal Code 1860
[13] The Code of Civil Procedure 1908
[14] Enforcement of Intellectual Property Rights, by Md. Delwar Hossain, Advocate
[15] Awareness Raising and Training of Copyright in Bangladesh, by Md. Aftabuddin Khan, Former Additional secretary, Government of People’s Republic of Bangladesh
[16] WIPO to help Bangladesh for intellectual property, The Daily Star, (2010, July 20), Business
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