Even with laws on the books and government officials trained to the point of expertise, counterfeit software and fake compact discs still make their way into Australia.
Counterfeit Sony Playstations, tires, shoes, jeans and children’s toys are often smuggled into his country, said Stephen Fox, principal legal officer of the intellectual property branch at the Australian Attorney General’s department.
“We seize just a minuscule amount of what comes through the border,” he said. “Customs officials have to implement a vast amount of legislation, tariffs and quarantines. Intellectual property [enforcement] has to fit in there somewhere. But it is asking too much to expect more than a small percentage of shipments to be inspected.
“But we get some, and that has a deterrent effect from people who are worried about the risk.”
Fake pharmaceuticals and counterfeit video CDs and computer software remain widely available in Phnom Penh markets. Laws forbidding the copying of ideas and such goods as software and CDs moved a step closer last month when the Council of Ministers approved draft laws on patents and trademarks. A copyright law could be submitted to the Council of Ministers as early as next month, according to Ly Phanna, director of the Ministry of Commerce’s intellectual property division.
At a minimum, the laws would put into writing a government commitment to protect a person’s or a company’s ideas, theories, works of art and inventions—what is known as intellectual property.
That would increase foreign investor’s confidence and satisfy a major demand from the World Trade Organization, the body that oversees a global trading system of 130 member nations, which Cambodia is now trying to join.
But whether having laws on the books will actually keep fake software and karaoke videos out of the markets will depend on how strictly the laws are enforced.
That was the subject of a two-day seminar sponsored by the World Intellectual Property Organization last week at the Hotel Inter-Continental. Ministry of Commerce, Customs and CamControl officials, Minister of Interior economic police and judges from the supreme, appeals and municipal courts learned about the methods and challenges of enforcing and protecting the rights of intellectual property owners.
“Inventors should be rewarded, and intellectual property laws act as a spur to their creativity. They also oil the wheels of trade. But standards and legislation are of little effect if they cannot be enforced,” said Rowena Paguio, senior program officer for WIPO’s Cooperation for Development Bureau for Asia and the Pacific.
Lack of experience means that enforcement of intellectual property rights in Cambodia will remain weak for a number of years, said Ly Phanna. The government has asked Australia, New Zealand, Japan and the more developed Asean countries to provide technical assistance training, he said.
“It will take some more time, some more years to catch up to the capacity of other countries. The main problem we face is the lack of human resources,” said Ly Phanna.
The government has made some attempts to curb obvious intellectual property rights violations. In November 1999, the government forced the former Pizza Hot restaurant to change its name because it was too similar in name and logo to the US-based Pizza Hut. US embassy officials asked the government to force that change.
But basic infrastructure is still lacking. There is a trademark office at the Ministry of Commerce, where more than 15,000 trademarks have been registered since the early 1990s.
But there are no designated central government offices where patents and copyrights can be registered. Patent registration is unofficially handled by the Ministry of Industry, Mines and Energy, while copyrights can be registered at the Ministry of Information and the Ministry of Culture and Fine Arts.
Disputes are handled by Ly Phanna’s intellectual property division at the Ministry of Commerce. A few cases have gone to court, including a 1999 dispute between Mobitel and Samart over the design and use of pre-paid phone cards.
Samart eventually won the case in the Supreme Court, being rewarded the right to use the “scratch cards” that Mobitel claimed they had patented.
For Cambodia to be able to match international standards of intellectual property rights enforcement, border officials will have to be able to identify what goods look suspicious “in terms of source, physical appearance or configuration,” Fox said.
In Hong Kong, for example, there are 400 trained customs officials working the border and the markets, searching for fake goods. “They have a pretty big problem. Fifty percent of the world’s counterfeiting comes out of China,” Fox said.
Private companies will also have to do more investigations of infringement of their own goods and ideas. Because government officials can’t check every shipment into a country or monitor every market where counterfeit products might be sold, most countries rely on formal complaints filed by individuals or businesses before they begin a government investigation, according to Fox.
Another possible way to reduce counterfeiting is for companies to lower the price of their goods in less-developed countries.
Large pharmaceutical companies announced earlier this year they would reduce the price of anti-retroviral AIDS drugs offered in less-developed countries. Many nations, like Brazil and India, produce low-priced, generic versions of anti-retroviral drugs that have been patented in the US or other Western countries.
In Thailand, record companies have cut in half the prices for music compact discs. The CDs are still a few dollars more expensive than counterfeit CDs, but now the prices are in “acceptable proportion” to the purchasing capability of most Thais, according to Victor Van Spengler, a consultant to Cambodia’s Ministry of Health and Medecins sans Frontieres.
“Copyright laws imply there is a marketplace [for the asked-for price],” he said. “Now Thai consumers see real copies as a serious alternative.”
The debate over this “differential pricing” will continue throughout the world for some time, said Fox. Countries like Cambodia will also have to consider which goods and ideas could be given exemptions to intellectual property laws.
Many Cambodian schools use photocopied textbooks, and NGOs, many of which have limited budgets but provide “an enormous benefit to the country” rely on cheap, counterfeit computer software for their offices, said Van Spengler. Officials will have to decide if they want to put these violations of intellectual property rights to a stop.
Wealthy, industrialized countries and less-developed countries like Cambodia will continue to discuss these issues as trade becomes more globalized and intertwined, said Fox. China, for example, kas promised the rest of the world tit will combat illegal counterfeit production and exports in order to exchange for its recent entry into the WTO.
“This has to be dealt with between countries, but also between companies and industries,” Fox said. “If there isn’t cooperation, then we will not see effective enforcement.”