UN Experts Inspect Intellectual Property Standards

By Ros Sothea, VOA Khmer
Original report from Phnom Penh
17 February 2010

Three experts from the UN Conference on Trade and Development wrapped up an inspection tour of Cambodia’s intellectual property standards last week.

The government requested the inspection in 2008, to help fulfill its obligations under the World Trade Organization and the Trade Related Intellectual Property Agreement.

Analysts say proper enforcement of intellectual property rights could draw more investors.

During a weeklong mission, the three trade experts met officials from the ministries of Culture, Commerce, Agriculture, Health and Justice, as well as investors and entrepreneurs.

In discussions, the team analyzed the strengths and weaknesses of Cambodia’s intellectual property laws, assessing the kind of technical assistance needed to improve them.

“More people need to be aware of what [intellectual property] is,” Kiyoshi Adachi, a legal officer for UNCTAD and leader of the team, told VOA Khmer. “For instance, the [customs] people and the border people, they have a very tough time figuring out what to confine and what not to. So [with] something like that, they all need to do an assessment.”

Cambodia joined the WTO in 2004 and has since tried to strengthen protection of intellectual property, including the enforcement of laws on trademarks, unfair competition, patents, certification and copyrights.

However, numerous government officials from across the ministries involved told VOA Khmer these protections remain poor, disrupting creative ideas and hampering investment.

“There is not much progress, because no one takes caution on [intellectual property rights],” said Lim You Sur, director of the copyright department of the Ministry of Culture. “People don’t want to spend money and spend time on new creativity, but they just steal other people’s property and reproduce it.”

“There is no new investment either,” he said.

Fixed investment in Cambodia was $5 billion in 2009, but most of that came through agriculture, tourism and construction, not technology, software or medicine.

Var Roth San, head of the secretariat of the IPR National Committee, said Cambodia’s intellectual property protection remains weak. Many law enforcement agencies lack knowledge of the proper laws, and the government has no money to build their understanding or bolster enforcement of new laws and regulations.

Adachi said the results of the UN assessment would be released at the end of the year, subsequently helping Cambodia receive technical assistance to improve its protections.

“If we have full IPR law enforcement, it will help us attract investors,” Var Roth San said. “If we don’t, who will dare to invest in Cambodia, where their products will be freely copied?”

CULTURE-CAMBODIA: 'We Don't Have a Film Industry'

By Andrew Nette
Newsmekong*

PHNOM PENH, Oct 6 (IPS) - Internationally acclaimed director Rithy Panh remembers how, as young boy in pre-war Phnom Penh, cinema played a central role in his family life.

"When I was young we had so many cinemas not like the situation now, and we used to go to the films all the time. Western, Indian and Khmer pictures, I loved them all."

The director, whose most recent film is an adaptation of Marguerite Duras’s novel, ‘The Sea Wall’, responds bluntly to a question about the health of Cambodia’s film industry: "I think the situation today is that we do not have a film industry."

"We have an entertainment industry. Most of the production is karaoke, soap opera and TV drama. Either that or there are institutional films made by NGOs and the like. There is no film industry in the way there is in the West."

After being devastated by the Khmer Rouge, Cambodia’s film industry enjoyed a resurgence of sorts in the eighties and early nineties, only to be demolished again by rising production costs, the availability of cheap DVD copies and widespread cinema closures.

"The situation now is parlous," says Matthew Robinson, executive producer of Khmer Mekong Films, a local film production house. "Most people have turned to making cheap karaoke spots for TV-- either that or poor quality horror films, because they are cheaper and more popular."

Documentary films were shot in Cambodia by foreign filmmakers as early as the 1920s. Silent films, locally produced by Cambodian directors trained in France, first appeared in the fifties.

As part of the post-independence renaissance in the arts and culture encouraged by the country’s monarch King Norodom Sihanouk, hundreds of Cambodian films were made in the sixties and early seventies.

Movie production companies opened their doors and cinemas were built across the country. Encouraged by the relative cheap cost of tickets, people flocked to see European and locally-made films.

The Khmer Rouge victory in April 1975 brought an abrupt end to this. Most of the country’s actors and directors were killed. Negatives and prints of films were destroyed or went missing.

With the exception of a few crude propaganda pieces, the Khmer Rouge produced no cinema.

After the Vietnamese overthrew the Khmer Rouge in early 1979, cinemas began to re-open and production companies re-emerged and were soon importing films.

"After the fall of the Pol Pot regime, many people flocked to the cinema," recalls Kong Kantara, director of the Cinema and Cultural Diffusion Department at the Ministry of Culture and Fine Art. "There were no Khmer films so we brought them from the Soviet Union, Eastern Europe, Vietnam."

"It was not unusual to see up to 800 people a day in one cinema alone, no matter what they showed," recalls Tom Som, a young director with Khmer Mekong Films

"At the time there was no TV, no cable and no competition," says Kantara.

The introduction of VCRs, video cameras and taped foreign TV shows in the early nineties led to a major decline in ticket sales, resulting in the closure of many cinemas.

In the mid-sixties, Phnom Penh had more than 30 cinemas. According to Robinson there are now three. Admission prices are high by local standards, at one US dollar per ticket. A few more cinemas are located in large provincial capitals such as Battambang and Siem Reap.

"There is simply nowhere for the limited product that is produced to be shown," says Robinson. "The property boom has meant cinema owners can make more selling or renting out their venues as casinos or restaurants."

"If cinema owners responded by making their cinemas better, they could fight back. But they do not have that type of investment and to be honest, they don’t have the films."

Although the exact number is hard to pin down, most industry observers agree that only a fraction of the movie production houses existing in the mid-nineties still operate today.

Most of these churn out a steady stream of poorly made and scripted horror films and slapstick comedies, which are shot on a low budget, including dubbing the sound after the film has been shot because it is cheaper and faster.

Lack of trained crews and equipment is another problem.

"A lot of people think making a film is buying a camera and putting people in front of it," says Robinson. "They do not think about the story, the script or the production values."

The almost non-existent enforcement of copyright and intellectual property laws further discourages investment in films. "Now you make a film, release it and two days later, it is in the markets, copied and being sold," says Panh. "Copyright is a vital issue and if we do not deal with this it will destroy the industry."

Panh is Cambodian born but was trained in France, where he escaped after his family members were murdered by the Khmer Rouge.

His most famous film, ‘Rice People (1994)’, depicts the aftermath of the Khmer Rouge in rural Cambodia. It was entered in the 1994 Cannes Film Festival and was the first Cambodian film to be submitted for an Oscar.

His other films include ‘One Evening After the War ‘(1998) and ‘The Burnt Theatre’ (2005). All were co-produced with European companies that provided the vast bulk of financing. ‘The Sea Wall’, which Panh finished shooting late last year in the southern port city of Sihanoukville, is set in Cambodia during the French colonial era in the 1930s, just as the first signs of revolution were starting to appear in the countryside.

‘ScreenDaily.com’ has compared Catherine Deneuve’s portrait of a French landowner in French-occupied Vietnam with Regis Garnier’s ‘Indochine’, but much grittier.

"We use film like you go and buy a hamburger," says Panh. "We have to educate young people to love cinema but for this to work, we also need to produce better films."

Although it has the same aim, Khmer Mekong Films sees itself as filling a different niche to that occupied by Panh’s complex, European-style art house pieces.

Its first film, ‘Staying Single When’ (2007) is a romantic comedy about a man trying to find a wife in Cambodia. It enjoyed a four-week cinema run and is shown regularly on state TV.

Robinson describes the company’s current project, ‘Heart Talk’, as a ‘Hitchcock-like thriller’ involving three young women working in a Phnom Penh radio station. It is slated for local release in November.

A former executive producer for the top-rated British drama ‘East Enders,’ Robinson came to Cambodia earlier this decade on a three-year contract with BBC World Service Trust, the charitable arm of the BBC.

He hopes Khmer Mekong Films will play a key role in increasing the skills base of the local industry, both to make better films and lure international crews to shoot in Cambodia.

"I think this place is ripe to be discovered," Robinson says of Cambodia. "There are beautiful locations and beautiful people. The trouble is that until the skills base increases, they (international directors) will bring their own crew and use Khmers only for the lower end jobs like extras and drivers."

Improving the quality of the kingdom’s film and television industry is also a priority of the Ministry of Culture and Fine Art, which is seeking investors to establish Cambodia’s first movie studio.

(*This story was written for the Imaging Our Mekong Programme coordinated by IPS Asia-Pacific)

Internet Law - Trademarks In Cambodia

Kelly O'Connell, Miami Attorney
Internet Business Law Services (IBLS)

The Cambodian act known as the Law Concerning Marks, Trade Names and Acts of Unfair Competition (Trademark Law) was put into effect in 2002, and was the first of its kind in the country. In general, intellectual property laws and its respective rights in Southeast Asia are newly developed areas, and all countries in ASEAN, the Association of South East Asian Nations, realize much is at stake in this undertaking. But every country that buys into the global intellectual property model will ultimately profit. No economy can be built to sustain long-term success while ignoring the importance of intellectual property or tolerating piracy. This article answers the following questions: What is a “Mark” & “Trade Name” in Cambodian Law? What is the Definition of Trade Names in Cambodian Law? What are the Rules of Registration & Rights of Trademarks? What are Acts of Unfair Competition for Trademarks? What are the Infringements and Remedies of Cambodian Trademarks?

Cambodia had no legislation on Trademarks before the Law Concerning Marks, Trade Names and Acts of Unfair Competition (Trademark Law) was promulgated in 2002, the issue being novel to the national legislation of this country. Since there was no civil Cambodian law on intellectual property (IP), trademark issues were guided essentially by practices, ministerial decrees and by reference to related topics in other laws. The country was motivated to build a tradition of Intellectual property, and so worked with the World Intellectual Property Organization (WIPO) to help craft the present provisions.

Intellectual Property laws are essential, but useless without enforcement. This has been a sore spot in Southeast Asia’s developing countries, as they have seen little legal protection of intellectual property rights (IPR). This fact has spawned many related problems. First, there has not been the enthusiasm to develop inventions, since there was not as much protection or reward as in the West. Second, a culture of piracy has developed, as the idea of Intellectual Property had not caught on, whether as a defense, or prohibition. Third, the net result has been impoverished economies that lack entrepreneurship in these vital areas.

As in any other country, IP laws in Cambodia were needed not only to stop unfair competition, but also to encourage creativity. World IP organizations are helping turn the tide in countries like Cambodia. For instance, WIPO has helped to develop comprehensive IP laws, including enforcement mechanisms, and other organizations are teaching, helping get related laws passed, and ushering countries on compliance issues.

What is a “Mark” & “Trade Name” in Cambodian Law?

The law lists, in Chapter 1, Article 2, three Trade Name elements to be protected: Marks, Collective Marks, and Trade Names. A mark is “any “visible sign” usable for “distinguishing the goods (trademark) or services (service mark) of an enterprise.”

A “collective mark” means any “visible sign” that is designated as able to be registered as a unique mark, and used for designation on goods and services. A Trade Name means the “name or/ and designation identifying and distinguishing an enterprise.” Marks and Names shall be registered, and cannot be against public morality or confusing of another, whether local or international. (Articles 1, 2).

An example of Marks would include, drawings, brand names, a word, styled numbers, a design, a logo, graphic devices, Trade Dress labels, colored marks, combos of colors, signatures, 3-D marks, slogans, a shape or figure of objects, persons, or any combination of the previous.

What is the Definition of Trade Names in Cambodian Law?

A Trade Name “means the name or/ and designation identifying and distinguishing an enterprise.” Marks and Names shall be registered (Article 3, 4).
Chapter 6 deals with the issue of Trade Names. First, a word or designate may not be used as a Trade Name if its use goes against public morality or is deceptive. (Article 20) Also, pre-established Trade Names in Cambodia will be protected from 3rd parties, outside of any law or regulation regarding registration. Moreover, use of such an unregistered but existent Trade Name by any 3rd party is illegal. (Article 21 (a), (b)).

What are the Rules of Registration & Rights of Trademarks?

Chapter 2 establishes Registration and Rights for Trademarks, Articles 5-12.

Application: An application for all kinds of registration of marks is filed with the Ministry of Commerce.

Contents of Application: The application for registration of Mark shall contain a “reproduction of the mark and a list of the goods or services for which registration of the mark is requested, listed under the applicable class or classes of the International Classification as mentioned in the annex.” An “affidavit of use or non-use” for the mark, along with payment shall be included, as detailed by the joint declaration of the Ministry of Economy and Finance and the Ministry of Commerce. (Article 5(a), (b)).

Right of Priority is established by including in the application a certified claim of priority of a previous regime’s application filed by applicant or predecessor in title of any state member of the Paris Convention. (Article 6 (a), (b)).

When the Registrar of Trade Names receives a proper application, he registers the mark, issues a certificate of registration to the applicant, and then publishes a reference in the Official Gazette of the Ministry of Commerce. (Article 10(a)). If the application is defective, the submitter has 45 days after receiving written notice from the Registrar to amend the application. (Article 10(b)). Within 90 days of publication, the registration can be challenged for cause. (Article 10(c)).

Rights: Any use of the Trade Mark must be done with the owner’s permission. If breached, the owner has the right to proceed to court to ask for action against the infringement. He has the right of asking for cessation of the infringement or damages. (Article 11 (a), b)).

Period: The period of ownership of a Trade Mark shall be ten years, and upon filing, more periods of ten years may be granted, by fee. A six months lapse may be allowed for renewal. (Article 12(a),(b),(d)).

What are Acts of Unfair Competition for Trademarks??

Chapter 7 covers this issue, terming “Unfair Competition” as competitive behavior “contrary to honest practices in industrial, commercial, or service matters.” (Article 22).
The chapter lists specific acts of Unfair Competition, being competitive acts that “create confusion” regarding products of consumer, or industrial goods or services. Attempts to discredit business competitors via “false allegations” regarding their practices or produce, also qualify. Moreover, the use of misleading statements about one’s own products or services as regards the process of manufacture, use, effectiveness, or other essentially dishonest claims, are also sanctioned. (Article 23 (a), (b), (c)).

What are the Infringements and Remedies of Cambodian Trademarks?

Infringement: Chapter 8, Articles 24-28 deal with this issue. An infringement is the use of the same or a confusingly similar mark, owned by another, without permission, for the same type or a similar good. For goods not the same, but related, and where the sign is well-enough known as to make the application seem plausible, there may be Infringement. (Articles 24 & 25 a),(b)). Infringement on an “unregistered well-known mark” is similar. (Article 26)

Remedies: After a Mark owner has proven his Infringement, he may ask the court for specific relief, and be granted a judgment for cessation of the use of the competitor’s mark, have imminent infringement stopped by court order, or be granted damages. (Article 27).

Ministry of Culture Mulls Copyright Protection

Suon Kanika, VOA Khmer
Original report from Phnom Penh
24 October 2007

Officials of the Ministry of Culture met with Cambodian artists and other at a workshop Wednesday to decide how better to promote copyright in a country rife with pirated DVDs and other copied works.

By cooperating with the World Intellectual Property Organization, the ministry hopes to protect the works of producers, authors, photographers and performers.

At a two-day conference, WIPO representatives met with more than 100 of Cambodia's artists, many of whom complain their works are too easily stolen, making it unprofitable and hard to innovate.

Minister of Culture Long Ponna Sirivoath said Cambodia's intellectual property rights were not well protected, but the aim of the conference was to help Cambodian artists mobilize to form "their own unit to protect [their] achievements."

US Patent, Trademark Office Counsel Urges Cambodia To Strengthen IPR Laws

15 Feb 07
By Sopheap
Samleng Yuveakchon Khmer (Voice of Khmer Youth)
Translated from Khmer and posted online

Corruption in Cambodia has caused the state to lose an average per day income of US$1 million. For this reason, the Cambodian Government appears to be reluctant to make an anti-corruption law anytime soon despite the strong push from the donor countries and civil society groups.

Peter N. Fowler, senior counsel, Office of Enforcement, External Affairs US Patent and Trademark Office of the Department of Commerce, paid an official visit to Cambodia and met with the 7th Commission of the National Assembly headed by Keo Remy on Wednesday morning, 14 February. At this meeting, Peter N. Fowler told Keo Remy, who represented the National Assembly's 7th Commission, that he would like to urge the National Assembly to closely monitor the enforcement of various laws it has adopted, such as the Intellectual Property Rights [IPR] laws, and the protection of various copyrights registered with the Ministry of Commerce.

The senior legal adviser to the US Department of Commerce made that request after observing that a number of unscrupulous foreign investors have used the trade marks and logos of the world's well-known products by importing semi-finished goods into Cambodia to be finished, or using Cambodia as a transit country, before re-exporting them to the European or US markets.

Meanwhile, Keo Remy said that the crackdown on the illegal copying of famous product labels and qualities and the counterfeiting of brand-name goods in Cambodia appeared to be not very active because Cambodia is not a target destination of the pirated goods.

Keo Remy went on to say that Cambodia is still a very small market and is a transit nation only. Cambodia has not yet been able to produce pirated high-quality goods of the world. Cambodia's neighbors, however, are capable of such counterfeiting operations, and they have used Cambodia as a transit country or as a place where semi-finished products are brought in to be finished before re-exporting them to the European and US markets.

Peter N. Fowler said at the meeting with the National Assembly's 7th Commission that Cambodia must strengthen its laws, meaning that all laws passed by the National Assembly must be strictly enforced in the right direction and the Government must draft many other bills and send them to the National Assembly for adoption in order to attract renowned international investors, such as those from the United States, into investing in Cambodia.

Vietnam has strictly enforced its anti-corruption laws, and officials involved in corruption have been severely punished according to these laws. Some of them have been hanged because they committed serious acts of corruption. The Vietnamese Government took such drastic measures after Hanoi became a World Trade Organization member even after Cambodia.

However, because the Hanoi Government has sufficient laws for protecting the interests of foreign investors, because its justice system is trustworthy and its anti-corruption laws are properly enforced, Vietnam has become an investment destination for many big US firms. For instance US Microsoft Company recently invested nearly US$1 billion in Vietnam after this country firmly enforced its IPR laws. This has opened the floodgate to an influx of other foreign investors into Vietnam.

However, Cambodia where each year US$350 to US$400 million are lost to corruption has attracted many unscrupulous foreign investors because Cambodia has an extremely weak legal system and is full of corrupt officials who have shares in the foreign companies.

Because Cambodia does not strictly enforce its IPR laws, some foreign firms have used Cambodia as a base for counterfeiting products that they export to and sell cheaply on the international markets.

US economic experts have discovered that Cambodia has been used by a number of dishonest foreign companies as a center for counterfeiting goods for export to foreign markets.

Peter N. Fowler, senior counsel on Enforcement of the US Commerce Department's Patent and Trademark Office, told the National Assembly's 7th Commission at the 14 February meeting that he believed that the Cambodian Government, too, did not want unscrupulous foreign investors to come to and invest in its country. He said he hoped that Cambodia would consolidate its legal system, especially the enforcement of the IPR laws so as to win the trust of the world's major investors and lure their investment to Cambodia.

However, for more than a decade the foreign aid-dependent government headed by Hun Sen still has not had the will to make an internationally standardized anti-corruption law.

At the consultative meeting on 12 February, US Ambassador to Cambodia openly criticized the Cambodian Government for the delay in making the anti-corruption law, pointing out that the bill has not yet left the Council of Ministers because of various excuses.