A Critical Analysis of Insertion of Intellectual Property Rights as Fundamental Rights in
Nepal’s Interim Constitution- A Case Study of Nepal Intellectual Property Regime
Abstract
This paper illustrates that Nepal is party to various International binding and none binding
along with lex specialis in the field of intellectual property rights. Nepal is member of World
Intellectual Property Organization have ratified Berne (1983), Paris Convention (1986) and
other convention too. As per Section 9(2) of Treaty Act 1990, it is mandatory of government to
treat all those international law as national law and in case any contradiction with International
law with national law, the international law prevails. There are no any specific rights which can
guarantee the protection of Copy Rights and Industrial Rights in the Constitution. Article 27 (2)
of the UDHR states that everyone has the right to protection of moral and material interests
resulting from any scientific, literary or artistic work of which he is the author. Similarly, Article
15.1 (c) of the ICESCR recognizes the right of everyone to benefit from the moral and material
interests resulting from any scientific, literary or artistic production of which he is the author.
The second section of this paper will justify the need for incorporation of all rights related with
the intellectual property rights in the chapter III which is understood as puts down the rules by
which international treaties may be interpreted; human rights covenants must be interpreted in
accordance with the VCLT. Article 31 (1) of the VCLT states that a treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their
context, and in light of the treaty's overall objective and purpose. Article 32 of the VCLT,
however, provides that a treaty interpreter may have recourse to supplementary means of
interpretation including preparatory work of the treaty. Recourse to preparatory work may be
made in order to confirm the interpretation developed by applying Article 31, or to ascertain the
real meaning of the provision if application of Article 31 gives an ambiguous or obscure
meaning or leads to a result that is manifestly absurd or unreasonable.
General comment No 17 of the ICESCR committee, on the position of IPR in the covenant. The
significance of general comments stems from the fact that they act as important authoritative
interpretations of provisions of the covenant. This general comment states that the right of
everyone to benefit from moral and material interests resulting from any scientific, literary or
artistic production of which he/she is the author is a human right. According to the committee,
this human right is derived from the inherent dignity and worth of all individuals.
WTO's Trade-Related Aspects of Intellectual Property (TRIPS) agreement. Advocates of this
view argue that the obligations imposed by the TRIPS agreement, especially in the form of
medical patents, come in the way of countries fulfilling their international obligations towards
fulfilling their citizens' right to health, which is a well-recognized human right. Article 12.2 (d)
of the ICESCR places an obligation on states to create conditions that ensure medical service
and medical attention in the event of sickness. If IPR such as medical patents are recognized as
human rights, it would result in absurd outcomes where one human right comes in the way of
another human right. Specifically, medical patents obligate a country to introduce product
patents in pharmaceuticals, thereby disallowing the generic manufacture of medicines, which, in
turn, leads to higher medicine prices, adversely affecting accessibility of medicines by the poor
and endangering the human right to health.
Key Words: Intellectual Property, Industrial property, Copyright
Genesis of Intellectual Property Regime
Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works,
and symbols, names, images, and designs used in commerce. IP 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.1Intellectual property protects
applications of ideas and information that are of commercial value.2
With the globalization and liberalization the commercial market and trade is getting competitive
day by day, one product trying to overtake the other, trademarks have assumed the status of
important intellectual property rights today. The products are manufactured by different concerns
1 http://www.wipo.int/about-ip/en/, assessed to Date 2069/12/22,
2
W.R. Cornish Intellectual Property, Third Edition, Universal Law Publishing, Second Indian Reprint 2003, pg no.5
and they acquire wide market across frontiers, and within its boundaries. It is significant to let
know the customer of source origin of a particular product. This way of identifying a source of
product is possible through a mark peculiar to that manufacturer for his product.3 This purpose is
served by a trademark.
Trademark is a symbol that allows a purchaser to identify goods or services that have been
satisfactory in the past and reject goods or services that have fail to give satisfaction. It imputes a
sense of responsibility on the manufacturer to manufacture quality products. Trademark is a
means advertising i.e. to fix the identity of the artice and the name of producer in the minds of
the people.4
The term patent usually refers to a right granted to anyone who invents or discovers any new and
useful process, machine, article of manufacture, or composition of matter, or any new and useful
improvement thereof. The first legislation in Nepal designed to provide such incentive is the
Nepal Patent, Design and Trade Mark Law 1936. This legislation was repealed by the Nepal
Patent, Design and Trademark Act 1965(NPA). The Act itself has not substantially changed the
provisions provided by its predecessor, though arguably this Act may be well intended for the
protection of Patents unlike its predecessor. However, the fact that only around 49 Patents were
registered till 2002 has raised many doubts regarding the efficiency of the Act. 5 NPA has defined
patent as follows: “Patent includes any useful invention found through any new principle or
formula relating to new idea or technique for formulation of any matter, composition of matter or
regulation and expansion thereof.”
6
NPA has not defined invention, novelty, product, process,
specification, utility model, priority date, industrial property, unfair competition, parallel import,
and compulsory licensing, which are the core concept in designing patent law.7 Any work of
original and intellectual creation in a literary, scientific or artistic domain is eligible for
protection according to the definition of “work” as provided in Article 2 (1). The Act set forth
two basic eligibility requirements for a work to qualify for copyright protection. First, it must be
original and second, it must be belong to a literary, artistic or scientific domain. The Act has
3 C.B. Raju, Intellectual Property Rights, Serials Publication, First Published 2006, pg. no. 33
4 Ibid pg. no. 33-34
5 Pandey Tilak and Upreti Anup, Patent Law in Nepal, New Business Age, February… 2003, at ….. authors are
associated with Lawyer’s forum for Intellectual Property Law ( LIP).
6 Section 2(A) of Nepalese Patent Design and Trade-Mark Act( 1965).
7 Surendra Bhandari,Uruguay Round-WTO: A study on Impact of TRIPs on Developing countries with special
reference to India and Nepal, A dissertation submitted before faculty of Law, Delhi University, at 123, ( 1996).
provision that Items8 like ideas, news, and methods of operation, concepts, principles, court
decisions, and decisions of administrative agencies, folk songs, folk stories, proverbs and
statistics of general information are not protectable. Besides these exceptions, copyright is
available for any literary, scientific or artistic works or original and intellectual creation. But the
Act still has some ambiguity defining the “amount of Originality”. Regarding duration of
protection it is generally available for life plus a post mortem period of 50 years. However, this
period of protection varies with the nature of the respective works9 like joint works, works made
for hire, works of anonymous, the photographic works and the work published after the death of
the authors. The concept of “fair use” or “fair- dealing” doctrine is also enshrined in the
Nepalese Copyright law. Chapter 4 deals with limitations and exemptions from Copyright
Protection.10 So there is no liability for using the copyrighted materials for the Private use,
Teaching and illustration, library and archival use, reproduction for information programs, public
exhibition and reproduction of computer programs if there is lack of legal production. The Act
strictly prohibited for the reproduction of the copyrighted works that Act has protected. The
section 25 and 26 of the Copyright Act deals about the infringement of the Copyright. The Act
prohibits the commercial use of the copyrighted materials. Articles 27 to 29 of the Act provide
the civil remedies and penal sanctions. Civil Remedies include injunctions11 and recovery of
damages from the defendant
12
Under the Penal sanctions, the law prescribes a minimum fine of
Rs. 10,000 (approximately US$ 130) up to 100,000 (approximately US$ 1300) or 6 months
imprisonment or both for a first offence. The punishment is doubled for a second or further
infringement, and carries confiscation of all infringing material, and equipment used for its
reproduction. The law has provision that police officials have the power to search and seize
infringing copies. A right holder may file a complaint before police official for the investigation
8
Article 4, Copyright Act, 2002
Article 14 of the Nepal Copyright Act,2002 has the folowing different provisions: In the case of joint work- 50
years from the death of the last surviving author, In the case of works prepared under the direction or control of a
person or legal entity, 50 years from the date of the first publication or from the date of the first public
dissemination, whichever comes first, In the case of anonymous or pseudonymous works, 50 years fro the date of
the first publication or from the date of the first public dissemination, whichever comes first, the case of works of
applied art and photographic works, 25 years from the date of their creation and In the case of a work published after
the death of its author, 50 years from the date of its publication.
10
Article 16- 23, Nepal Copyright Act, 2002.
11
Article 36, Nepal Copyright Act, 2002.
12
Article 27.2 Nepal Copyright Act,2002.
9
of the offense. After the receipt of the complaint, the police official shall take necessary
proceedings to prevent infringing copies from being sold or distributed and may even search and
seize the infringing copies.13
Any person may acquire title to a trademark after having it registered in the Department of
Industry14 under the Patent, Design and Trademark Act, 1965 in Nepal. No person shall use a
trademark registered in the name of any other person without the written permission of the latter,
or operate such trademark by imitating it in such manner as to deceive the general public.15
Patent, Design and Trademark Act, 1965 contains provision for the general exclusion from
registrability. In case it is felt by the Department of Industry that such trademark may hurt the
prestige of any individual or institution, or adversely affect public conduct morality, or
undermine the national interest or the reputation of the trademark of any other person, or in case
such trademark is found to have already been registered in the name of another person, it shall
not registered.16 Likewise, the name, emblem or official seal of an international organization or
Government, such as a national flag, is not registrable as a trademark.
The Department of Industry may cancel the registration of any trademark if it is satisfied the
existence of above mentioned ground of general exclusion from registability. The Department of
Industry shall, before canceling the registration of any trademark in this manner, provide a
reasonable opportunity to the holder of the trademark to show cause, if any, why his trademark
should not be cancelled.17
In case a trademark registered at the Department of Industry is not brought into use within one
year from the date of registration thereof, the Department of Industry shall conduct necessary
inquiries and cancel such registration.18
The title of the person in whose name a trademark has been registered shall remain valid for a
period of seven years from the date of registration thereof, except when it is renewed. 19 A
trademark may be renewed any number of times for a period of seven years at a time.20
13
Article 32(1) of Nepalese Copyright Act,2002.
Patent, Design and Trademark Act, 1965, sec.16(1) (Nepal)
15
Patent, Design and Trademark Act, 1965, sec. 16(2) (Nepal)
16
Patent, Design and Trademark Act, 1965, sec. 18(1), para. 1 (Restrictive Clause of Sub-section) (Nepal)
17
Ibid at sec 18(3)
18
Ibid at sec 18C
19
Ibid at sec 18D
14
If any one wishes to allow others to make use of a trademark registered in his name, both parties
must submit a joint application and the Department of Industry may grant permission in this
respect but the ownership of the trademark will be transferred into the name of the user.21
The title to any trademark registered in a foreign country shall not be valid in Nepal unless it is
registered in Nepal by the concerned person.22 The Department of Industry may register
trademarks registered in foreign countries without conducting any enquiries if an application is
filed along with certificate of their registration in foreign countries.23
If a person uses a trademark registered in the name of any other person under Patent, Design and
Trademark Act, 1965, without the written permission of the latter, or operates such trademark by
imitating it in such manner as to deceive the general public, or brings into use a trademark which
has been cancelled under the Patent, Design and Trademark Act, 1965, or uses a trademark as a
registered trademark without registering it at the Department of Industry, he may be punished
with fine, as well as the confiscation of all articles and goods connected with such offense, on the
orders of the Department of Industry.24
If registered trademark proprietor actually suffers any losses as a result of any other person
contravening the provisions of this Act in respect to such trademark, the Department of Industry
may have the appropriate amount of such losses recovered from such offender in the form of
compensation.25
International Laws justify IP as Rights
Article 27 (2) of the UDHR states that everyone has the right to protection of moral and material
interests resulting from any scientific, literary or artistic work of which he is the author.
Similarly, Article 15.1 (c) of the ICESCR recognizes the right of everyone to benefit from the
moral and material interests resulting from any scientific, literary or artistic production of which
he is the author.26 Robert Ostergard argues that traditional theories like John Locke's labor theory
of property (objects produced by an individual through the mixing of labor with resources are the
20
Ibid at sec 23B
Ibid at sec 21D
22
Ibid at sec 21B
23
Ibid at sec 21C
24
Ibid at sec 19
25
Ibid at sec 25
26
http://infochangeindia.org/trade-a-development/intellectual-property-rights/are-intellectual-property-rightsfundamental-human-rights.html visited on 2014/03/04
21
property of the individual) and inferences drawn from the utilitarian theory (IPR provide
incentives to produce new intellectual objects, and society benefits from these in the long run)
fail to offer a rational and adequate theoretical justification for IPR. He further argues that
without a logical foundation justifying IPR, consideration of IPR as human rights is indefensible.
Instead, Ostergard says, for a country it is the physical wellbeing of people that should trump
protection of IPR; only those IPR that contribute to the physical wellbeing of the people should
be protected. the Vienna Convention on the Law of Treaties (VCLT). The VCLT puts down the
rules by which international treaties may be interpreted; human rights covenants must be
interpreted in accordance with the VCLT. Article 31 (1) of the VCLT states that a treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context, and in light of the treaty's overall objective and purpose. Article 32 of the
VCLT, however, provides that a treaty interpreter may have recourse to supplementary means of
interpretation including preparatory work of the treaty. Recourse to preparatory work may be
made in order to confirm the interpretation developed by applying Article 31, or to ascertain the
real meaning of the provision if application of Article 31 gives an ambiguous or obscure
meaning or leads to a result that is manifestly absurd or unreasonable.
General comment No 17 of the ICESCR committee is on the position of IPR in the covenant.
The significance of general comments stems from the fact that they act as important authoritative
interpretations of provisions of the covenant. This general comment states that the right of
everyone to benefit from moral and material interests resulting from any scientific, literary or
artistic production of which he/she is the author is a human right. According to the committee,
this human right is derived from the inherent dignity and worth of all individuals.27
WTO's Trade-Related Aspects of Intellectual Property (TRIPS) agreement, Advocates of this
view argue that the obligations imposed by the TRIPS agreement, especially in the form of
medical patents, come in the way of countries fulfilling their international obligations towards
fulfilling their citizens' right to health, which is a well-recognized human right. Article 25 of the
UDHR states that 'everyone has the right to a standard of living adequate for the health and
wellbeing of himself... including food, clothing, housing and medical care. Similarly, Article 12
of the ICESCR advocates the '...right of everyone to the enjoyment of the highest attainable
27
ibid
standard of physical and mental health'. Article 12.2 (d) of the ICESCR places an obligation on
states to create conditions that ensure medical service and medical attention in the event of
sickness. If IPR such as medical patents are recognised as human rights, it would result in absurd
outcomes where one human right comes in the way of another human right. Specifically, medical
patents obligate a country to introduce product patents in pharmaceuticals, thereby disallowing
the generic manufacture of medicines, which, in turn, leads to higher medicine prices, adversely
affecting accessibility of medicines by the poor and endangering the human right to health.28
The new Egyptian constitution stipulates that the “State shall protect all types of intellectual
property in all fields” (Article 69), and the new Tunisian constitution indicates that “intellectual
property is guaranteed” (Article 41).29 According to the Egyptian constitution, the State
encourages scientific research and its institutions as a means towards achieving national
sovereignty, and “building a knowledge economy” (Article 23). It also commits to “allocate a
percentage of government expenditures that is no less than 1% of Gross National Product to
scientific research which will gradually increase until it reaches global levels.” The Tunisian
Constitution envisages that “the State provides the means necessary to the development of
technological and scientific research” (Article 33).30
Fundamental Rights As Such:
Fundamental rights is a generally-regarded set of entitlements in the context of a legal system,
wherein such system is itself said to be based upon this same set of basic, fundamental, or
inalienable entitlements or "rights." Such rights thus belong without presumption or cost of
privilege to all human beings under such jurisdiction. The concept of human rights has been
promoted as a legal concept in large part due to the idea that human beings have such
"fundamental" rights, such that transcend all jurisdiction, but are typically reinforced in different
ways and with different emphasis within different legal systems. In the United States, the
doctrine of "fundamental rights" is a feature of United States law under which certain human
rights that are "enshrined in the U.S. Constitution," and therefore are given a high degree of
Rajendra Kumar Khetan, “Sambidhan Sabha ko Table Bata”, 2066, Secretariat of Constituent Assembly
http://www.ip-watch.org/2014/03/10/new-constitutions-of-egypt-tunisia-provide-for-ip-rights-protection-for-firsttime/ visited on 2014/03/04
30
http://www.mocs.gov.np/uploads/Act%20list%20English/the-patent-design-and-trademark-act.pdf, visited on
2014/03/04
28
29
judicial deference in conflicts between individual liberty and governmental intrusion. In the
parlance of the U.S. Declaration of Independence, "all [human beings]" are "endowed by their
Creator with certain unalienable Rights, among these [being]:"

Life - (cf. right to live, right to life)

Liberty (cf. freedom, personal liberty)

the pursuit of Happiness (cf. personal fulfillment, professional accomplishment, basic
comforts, human pleasures, luxuries, vices)
This committee is formed to deal with the fundamental rights and the directive principles.The
issues under this committee are31 (a) recognize the fundamental rights, (b) limitation in the
fundamental rights,( c) the working of the fundamental rights, (d) directive principles of the
state and policies, (e) securing the rights of women, children, youth, laborer , farmers, madhesis,
tribal people, dalits, marginalized people, differently able ,(f) the system regarding citizenship,
(g) other important matters relating to the working of the committee. This committee has had a
total of 53 meeting with 478.30 hours in the meeting session. It submitted its final report on
2066-8-14 B.S.32
Justification of Intellectual Propoerty as Fundamental Rights
Nepal has had six constitutions: the Constitutions of 1948, 1951, 1959, 1962, and 1990, and the
Interim Constitution of 2007. These all constitution was introduced in different course of
development in the governance in Nepal. Some constitution was introduced under the strict
guidance of Monarchy while some was under the authoritarian regime. The latest constitution
was the turning step from Monarchy to Republic and was introduced under the will of
sovereigion people of this country. This Interim Constitution had ended the historical legacy of
Monarchy which was ruling since 240 years in country and there was ample condition in this
period when people were exempted from the basic liberties, freedom, and human rights.
Article 78 states that “ The CA shall , subject to the provisions of this constitution, frame rules for conducting its
business, maintaining order during its meetings and regulating the constitution, functions, procedures and any other
matters and any other matters relating to its committees. Until such time as rules are made, the constituent Assembly
shall establish its own rules of Procedue”.
32
Rajendra Kumar Khetan, Sambidhan Sabha ko Table Bata, 2066, Secretariat of Constituent Assembly.
31
The TRIPS agreement requires each Member to adopt procedures to enable a trademark owner
who has valid grounds for suspecting that importation of counterfeit trademark goods may take
place, to apply for suspension by the customs administration of the release of such goods into
free circulation.33 Such authorities also have the right to order the destruction or disposal of
infringing goods. Neither the Patent, Design and trademark Act of 1965 nor any other statute has
such provision of enforcement at the border. Hence, this provision should be included in the
relevant law in Nepal.
The TRIPS contain detailed provisions concerning procedures and remedies relating to
enforcement of all intellectual property rights covered by the agreement. The same enforcement
procedures apply to trademark as well. The provisions reflect the basic element of many systems
of justice, such as timely and detailed written notice to defendants, the right to independent
counsel, and right to present relevant evidence.34 The provisions also include the right to
discovery, interlocutory or final orders in the event of refusal of a Party to provide access to
evidence within that Party’s control, injunctions, damages, costs, and damages against a Party at
whose request enforcement measures were taken and who had abused the enforcement
procedures in order to provide compensation for the loss suffered by the Party wrongfully
enjoined.35 In addition to these familiar remedies, the TRIPS agreement contains provisions
intended to deter infringement. These include, orders requiring disposition of infringing goods or
of the tolls from which they were made, outside normal trade channels, or destruction of such
goods or tools.36 Simple removal of the trademark unlawfully affixed to counterfeit goods will
not normally be sufficient to permit release of the goods into trade channels.37
In Nepal, the Patent, Design and Trademark Act, 1965 and other provisions of law, i.e., the
Administration of Justice Act, 248, the Evidence Act, 2032, the Civil Rights Act, 2012, etc.
provide the requirements of written notice to the defendant, the right to independent council, the
right to present relevant evidence, interlocutory and final orders, compensation, etc. It would be
better if these provisions were written in the Patent, Design and Trademark Act, 1965. The
constitutional arrangment for the protection of Intellectual rights are inserted into the constitution
33
TRIPS Agreement, supra note 31, Art. 51.
TRIPS Agreement, supra note 31, Art. 42.
35
TRIPS Agreement, supra note 31, Art. 43 (1)-(2); 44(1); 45(1)-(2), 48(1)
36
TRIPS Agreement, supra note 31, Art. 46.
37
TRIPS Agreement, supra note 31, Art. 46.
34
under the fundamental rights chapter. This is a fundamental right protected also by Article 19 of
the Interim Constitution of Nepal 2063.38 The Copyright Act (2002) which replaced the
Copyright Act of 1965 under section 7 has secured the economic rights of the authors. The
economic rights of authors include rights of distribution, rentals and reproduction. The section
contains provisions for right of broadcasting, communication, recording, amending and
exhibition; although the duration of these economic rights are limited in nature. Economic right
can be transferred through agreement.39 Section 8 of the Copy right meanwhile grants Moral
rights. Article 6 of the Berne Convention requires member parties to grant Moral rights
independent to the Economic Rights.40 Article 19 of the Interim constitution has wider
interpretation which covers the whole range of Intellectual Property rights. The interim
constitution has provided the Constitutional remedy (Article 32)41 for the violation of
fundamental rights. The extra ordinary jurisdiction of the Supreme Court under Article 107(1)
and (2)42 are for the remedial of fundamental rights infringement.
38
The Interim Constituion of Nepal 2063, Article 19, Right to Property- every citizen shall, subject to the laws in
force, have the right to acquire, own, sell, dispose of, and otherwise deal with property.
39
The Copyright Act (2002) section 24, Transfer of Copyright- the copy right owner may transfer all or any of the
economic rights conferred on him/her to any one by making a written agreement or authorize any one to use the
same with or without specifying any terms.
40
The Berne Convention Article 6(b)- (1), Independently of the author’s economic rights,a nd even after the
transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any
distortion, mutilation or other modification or other derogatory action in relation to, the said work, which would be
prejudicial to his honor or reputation.
41
The right to proceed in the manner set forth in Article 107 for the enforcement of the rights conferred by this Part
is gurantted.
42
(1) Any citizen of Nepal may file a petition in the Supreme Court to have any law or any part thereof declared
void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the
enjoyment of the fundamental rights conferred by this Constitution or on any other ground; and the Supreme Court
shall have extra-ordinary power to declare that law to be void either ab initio or from the date of its decision if it
appears that the law in question is inconsistent with this Constitution. (2) The Supreme Court shall, for the
enforcement of the fundamental rights conferred by this Constitution or for the enforcement of any other legal right
for which no other remedy has been provided or for which the remedy even though provided appears to be
inadequate or ineffective or for the settlement of any constitutional or legal question involved in any dispute of
public interest or concern, have the extraordinary power to issue necessary and appropriate orders to enforce such
right or settle such dispute. For these purposes, the Supreme Court may, with a view to imparting full justice and
providing the appropriate remedy, issue appropriate orders and writs including the writs of habeas corpus,
mandamus, certiorari, prohibition and quo warranto.