ASEAN: a golden birthday
A paintballing championship, an essay competition and a flag raising ceremony are just some of the many events taking place in 2017 to celebrate a special 50th anniversary.
On August 8, 1967, the Association of Southeast Asian Nations (ASEAN) was established in Bangkok by Thailand, Indonesia, Malaysia, the Philippines and Singapore. Brunei Darussalam joined 17 years later, and by 1999, Vietnam, Laos, Myanmar and Cambodia had all acceded. Today these ten nations make up a vibrant and diverse region that is home to more than 620 million people.
ASEAN’s IP system has come a long way in that 50 years, helped by wide-scale harmonisation efforts. For some countries the journey has been much more arduous, reminding us of the political struggles that have been overcome.
“Looking back over the last half century of Cambodian history, one has to recall that at one point all private property was abolished and there wasn’t the slightest semblance of rule of law,” says David Haskel, director at Abacus IP in Phnom Penh.
In that regard, he says, the most important IP development has been building an entire IP system from scratch, from enacting laws, joining international treaties, and establishing administrative bodies, to training IP professionals. “Everything had to be rebuilt.”
It wasn’t until the 1990s that IP harmonisation efforts really took off, starting with the ASEAN Framework Agreement on Intellectual Property Cooperation, signed by seven of the countries in 1995. According to Darani Vachanavuttivong, co-managing partner at Tilleke & Gibbins, a regional law firm in Southeast Asia, the agreement recognises the importance of IP rights in facilitating trade and investment among ASEAN member states, and aims to foster closer cooperation in IP and related fields.
It also paved the way for the establishment of the ASEAN Working Group on Intellectual Property Cooperation (AWGIPC), comprising the national IP offices of ASEAN member states, to drive the agreement later in 1996, she says.
“Separately, the ASEAN Intellectual Property Association (ASEAN IPA) was established by the private sector as a non-governmental organisation in 1996 to support business cooperation and understanding over important IP issues in ASEAN.”
Amid the burgeoning harmonisation efforts, each country faced its own battle to make it on to the global IP stage.
As noted by Lisa Yong, country manager of Indonesia at Rouse & Co International, Indonesia’s joining of the World Trade Organization (WTO) in 1995 led to an overhaul of all the IP legislation in the early 2000s.
“The enforcement of the system still has some room to improve, but just having a legal framework that was consistent with international norms was a major step in the last 50 years.”
How far has ASEAN come?
Measuring the progress of the entire bloc of nations is not easy in such a diverse area where levels of economic and political development vary. However, there are some pointers.
One is the Madrid Protocol, a key tool for boosting harmonisation. There are now just three ASEAN nations—Indonesia, Malaysia and Myanmar—that have not joined the treaty. In August 2017 Thailand signed up, becoming its 99th member. Another sign is the Patent Cooperation Treaty, to which 152 member states are contracting members. Nine of the ten ASEAN nations are signatories, with Myanmar the exception, but all ASEAN states have ratified the WTO’s TRIPS Agreement.
There are further indicators too, such as the World Intellectual Property Organization’s “Global Innovation Index”, in which Singapore ranked seventh out of 127 while Malaysia, at 37, came in the top 30 percentile. In the US government’s 2017 “Special 301 report”, an annual review of its trading partners’ IP regimes, most of the ASEAN nations steered clear of the US’s wrath. However, at least according to the US (other countries might disagree), there is improvement for Indonesia, which appeared on the “priority watch list”, and Vietnam, a member of the “watch list”.
Other achievements should be celebrated. In Thailand, the establishment of the Intellectual Property and International Trade Court in 1997 has been “instrumental” in advancing the recognition and enforcement of IP in the country, says Alan Adcock, partner at Tilleke & Gibbins in Bangkok.
“It is the first IP-specific court established in ASEAN and has exclusive jurisdiction over both civil and criminal actions related to IP. A panel of three judges, including career judges and associate judges who have background in IP rights and international trade, are appointed to the bench.”
In terms of region-wide IP harmonisation, ASEAN has embarked on the next phase of a long journey. Last year, the member states launched the IP Strategic Action Plan 2016–2025, which has a number of major goals, including strengthening the countries’ IP offices, building IP infrastructure and establishing regional IP platforms. Overseen by the AWGIPC, the plan also seeks to expand the region’s IP system, and promote asset creation and commercialisation.
An important step in improving harmonisation is ensuring continuity in the leadership and direction of regional IP platforms as, currently, leaders are rotated in and out every few years, says Vachanavuttivong. “Greater permanence in leadership would more effectively drive IP cooperation among ASEAN member states.”
In this special 50th anniversary year, it falls on the Philippines to take the chairmanship. Three years ago the country’s IP stakeholders celebrated as the US government removed the country from its “Special 301 Report”. It was a historic moment, as the Philippines had appeared on the list for 20 years, and the US authorities commended the country on enacting significant legislative and regulatory reforms to enhance the protection of IP rights.
Bong Somera, a partner at V&A Law, says the government is doing enough, “but of course, we can always improve”.
He would like to see the Intellectual Property Office of the Philippines strengthen procedures on enforcement actions and become the first choice for rights owners seeking to protect their IP. He explains that the office has jurisdiction to seize infringing items (and has done recently) and can also grant damages to IP owners and issue injunctions. The courts are still the venue of first choice, he adds, but public education is important for changing this.
In the future, he would also like to see the IP office encourage a more “innovative field”, bringing more innovators forward to protect their inventions and allowing the Philippines to become a country “known for having innovators”.
The wider region
What does the future hold for the wider region?
In Laos, for example, although the country has only recently committed itself to the improvement of its IP system, “the progress made has been remarkable and the importance granted to IP by local authorities is gaining strength”, says Dino Santaniello, consultant in the Tilleke & Gibbins Laos office.
He adds that the authorities are working to provide local producers with broader markets for handicraft and agricultural products in order to increase the exposure of these products on the international market.
“The decision of the Ministry of Science and Technology on the Implementation of Geographical Indications under the Law on Intellectual Property, which was enacted on October 25, 2016, reflects the Lao government’s intent to provide local products with a trusted label of their manufacturing origin for international exports.”
Laos also endeavours to attract investors involved in various high-technology industries, and as such, “local authorities intend to offer a regulatory framework that will enable safe and secure transfers of technology”, Santaniello continues.
Yong says that with ASEAN’s focus on the digital economy in 2018, Indonesia will need to “continue to update its ecosystem to keep up with the rest of its neighbours”.
Giving one example, she says the Electronics Information and Transactions Law—which will provide for greater resources and training for examiners and government departments to cope with digitisation—is awaiting various implementing regulations.
She adds: “Indonesia may be one of the few last ASEAN countries to pass implementing regulations to accept Madrid Protocol applications; there is still much to do.”
Vachanavuttivong says there are still a number of major IP challenges for the region. These include different levels of development in IP frameworks and regulatory regimes; IP backlogs and “overstretched resources at national IP offices due to the significant number of investors who require IP protection as they seek to do business in ASEAN”; and the lack of an ASEAN regional trademark or patent registration option.
On this last point, there have been previous attempts to introduce a regional trademark system, but such a framework has not materialised. In a previous interview with WIPR, Chew Phye Keat, president of the ASEAN IPA, said that as early as the late 1990s, the working group considered the issue but faced practical difficulties “with differences in language, jurisdiction, jurisprudence, and basic law across the member states”.
However there is hope that with the increasing prominence of the Madrid Protocol in the region, the idea seems more workable than before. Maybe in another 50 years’ time, when ASEAN will celebrate a mighty 100 years of unity, that will have changed.
