OREANDA-NEWS. July 16, 2008. A roundtable discussion on the proposed legislative changes in the area of IPR enforcement according to the WTO TRIPS Agreement took place in Bishkek, reported the press-centre of AmCham. 

The roundtable was organized by the Ministry of Economic Development and Trade (“MEDT”), in cooperation with the State Patent Service with the assistance of the USAID Trade Liberalization & Customs Reform Project and the American Chamber of Commerce (“AmCham”).  Participants included representatives of relevant agencies of the Government of Kyrgyzstan, authorized government bodies, representatives of businesses, members of the Association of IP Rightholders of Kyrgyzstan and AmCham.
 
Effective enforcement of the intellectual property protection rules of the WTO Agreement on Trade Related Intellectual Property Rights (“TRIPS”) is among the commitments that Kyrgyzstan accepted when it joined the WTO in 1998.  At the roundtable, representatives of the MEDT and the State Patent Agency pointed out that Kyrgyzstan has made significant progress in adopting legislation on intellectual rights protection, including among others the Copyright Law, Patent Law, and Trade mark Law. 

However, when it comes to enforcement measures Kyrgyz legislation is quite deficient. TRIPS demands sufficient, fair and deterrent enforcement measures, including administrative, civil, border and even criminal procedures.  States must have “ex officio” authorities to detain, seize and even destroy counterfeit products and equipment used for their production. There must be additional authority for judges to issue injunctions for the detention and seizure of counterfeit goods.
 
Professor Tolesh Kaudyrov, Head of the Law Department at the Eurasian National University in Kazakhstan, stated forcefully that current enforcement IPR laws in Kyrgyzstan actually create the most favorable conditions for copyright and trademark pirates, by making it virtually impossible for legitimate right holders to enforce their rights. He noted that certain provisions were removed from the enforcement laws in recent years, which was a real “step backwards” by Kyrgyzstan in the area of enforcement. He emphasized that TRIPS requirements are mandatory for every country acceding to WTO membership, and that for Kyrgyzstan as a WTO member such a step backward was a direct violation of its WTO commitments.
 
Over 17 legislative changes were proposed for public discussion at the roundtable.
 
One of the proposals is to reinstate the first part of Article 150 of the Criminal Code, which provides for criminal liability in violation of an author’s rights, such as unauthorized copying or plagiarism. The absence of such a provision means that anyone can take and use another author’s work and put his own name on it with impunity. 
 
It is also proposed to reinstate the recently removed article 290 of the Criminal Code, which provided criminal liability for unlawful access to computer information. The absence of such a provision gives freedom to all kinds of hackers to break into any database and steal private information without any liabilities.
 
Currently, cases based on parts 2 and 3 of Article 150 of the Criminal Code are classified as private cause of action. This means that without a right holder’s complaint, such cases can be dismissed by the court. In addition, to pursue a case a right holder must prove that as a result of the violation he incurred “significant damage,” which is virtually impossible under current laws.  To correct this situation,  parts 2 and 3 of Article 150 of the Criminal Code must be classified as private/public causes of action, so that law enforcement agencies, judges and other authorized bodies would have authority, as TRIPS requires, to detain, seize, issue injunctions and destroy counterfeit goods and equipment used for their production.
 
It is also important to define clearly “significant damage” in the Criminal Code, as in the absence of a clear definition courts often dismiss cases, and it is impossible to differentiate between criminal and administrative liability.
 
Patent Attorney Leonid Kim commented on the current situation with the Customs Register, which is empty even though there are over 40,000 trademarks registered in Kyrgyzstan. Does this show a lack of will on the part of the right holders to authorize the Customs to detain counterfeit goods?  The problem is that although the Customs Code does contain provisions requiring the detention of counterfeit goods when crossing the border, there are no detailed instructions to guide customs authorities’ actions in such cases.
 
The proposed legislative amendments provoked very lively discussions among the roundtable participants, which demonstrated how acute the problems are and how imperative the need for immediate action.
 
In conclusion, all participants agreed that the existing lack of IPR enforcement both encourages piracy and deters the economic, intellectual, innovative and cultural development of Kyrgyzstan, and discourages foreign investment. As Deputy Director of cinema chain “Cinematica”, Almaz Kayipov stated, the recently produced Kyrgyz movie “Boz Salkyn” was, so to speak, attacked by pirate copies, which were widespread with impunity before the film was even released in cinemas. This was a vivid example of how piracy acts as a serious obstacle to the development of national cinematography.   
 
 
Immediate action is required. The first steps should be the adoption of the proposed legislative amendments in one law, resumption of the work of the Interagency Commission on IPR Enforcement, and coordination of all relevant bodies and law enforcement agencies in their activities to fight piracy.