Many nations, especially the least developed countries, have taken significant efforts to align their legislation with the Intellectual Property (IP) rules set by the World Trade Organization under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This Agreement establishes the minimum standards for protecting creations of the mind, such as inventions, literary and musical works, designs, and trademarks. Following these rules can increase the innovation, economic growth, and foreign investment. This article reviews how Cambodia, Laos, and Myanmar are making changes to their IP systems to meet the TRIPS requirements. It focuses on recent developments and challenges associated with the TRIPS compliance.

Least Developed Countries and their Intellectual Property Rights

The United Nations (UN) defines Least Developed Countries (LDCs) as nations with low incomes and significant obstacles to long-term development.¹ LDCs have specific rules related to the Intellectual Property (IP). These rules give them extra time for the adoption of all the substantive Trade-Related Aspects of the Intellectual Property Rights (TRIPS) standards (until 2034), to provide protection for pharmaceutical patents, to file mailbox applications, and grant exclusive marketing rights (until 2033), as well as to waive the notification requirements for compulsory licenses for the exports of pharmaceutical products. Under Paragraph 6 of the Doha Ministerial Declaration on the TRIPS Agreement and Public Health, LDCs are deemed to have insufficient or no manufacturing capacity in the pharmaceutical sector and to be able to use the compulsory licenses to export pharmaceutical products. Those special privileges continue until the countries graduate from the LDC category.

The UN Committee of Development Planning (CDP) reviews the LDC status of the countries every three years, and the General Assembly decides which nations are added to or removed from the list based on the CDP recommendations. The 2021 Triennial Review recommended the graduation of Laos, a decision confirmed by the General Assembly that decided that this would occur by November 2026. The additional five-year period will help the Laos transition out of the special trade and the IP privileges granted to LDCs. The review also found that Cambodia met the graduation criteria for the first time. If the country meets these criteria again in 2024, it might be considered for graduation. Myanmar met the criteria for the second time, but because of a state of emergency declared by the military in 2021, the decision on its graduation was delayed until the next review.

Cambodia’s Progress

Cambodia joined the WTO in 2003, after a long negotiation process. Prior to its accession, Cambodia was required to start a series of legal reforms to build the country’s IP system, which was almost nonexistent, starting with the ratification of key IP international agreements and the passing of the Law on Trademarks, Trade Names and Acts of Unfair Competition (2002), the Copyright Law (2003), the Law on Patents, Utility Models and Industrial Design (2003), the Law on Seed and Breeder Right Protection (2008) and the Law on Geographical Indications (2014).

One of the objectives of Cambodia’s National Strategic Development Plan 2019–2023 is to strengthen the private sector and encourage investment by reinforcing the IP rights. It recognizes the importance of helping the local businesses to use IP to support sustainable growth. The government has supported the emerging local industries that have started registering trademarks and geographical indications for their products, such as Kampot-Kep salt, Kampot-Kep fish sauce, and Takeo lobster.

While Cambodia’s efforts to protect the IP are commendable and show commitment, many challenges remain. The enforcement of IP rights, for example, remains weak, partly because of a lack of trained personnel and the absence of commercial courts specializing in IP cases. However, a commercial court with the IP jurisdiction is expected to start operating in 2024. In addition, Cambodian authorities rely on searches and reports from other countries’ offices for patent registrations and have cooperation agreements in place with Japan, China, Thailand, and South Korea.

Laos’ Success

Laos acceded to the WTO in 2013 after a 15-year negotiation process. This led to significant legal changes, with almost 160 new laws being passed. One of those is the Law on Intellectual Property (LIP), which was first enacted in 2008 and amended in 2011 and 2017. The LIP regulates all the IP areas, namely the copyrights, patents, petty patents, industrial designs, trademarks, integrated circuits, layout designs, geographical indications, and plant varieties.

Laos faces challenges in implementing the LIP because they lack expertise and resources. Similar to the situation in Cambodia, the Laotian IP office personnel do not have the skills to thoroughly review the patent applications; therefore, they rely on collaborations with the patent offices in other countries. To illustrate that, the Chinese and Laotian IP offices signed a memorandum of understanding in 2018 to cooperate in the IP matters and expedite the registration process of patents already filed in China.

The Laos’ 9th Five-Year National Socioeconomic Development Plan (2021–25) emphasizes the importance of science and technology for the country’s socioeconomic development. It also sets priorities to build the capacity to improve the management of the IP rights and to educate people and businesses about the IP benefits. The plan particularly seeks to support the registration of the geographical indications for durians and cardamoms and trademarks and collective trademarks in the Champassak and Sekong Provinces.

Laos has tried to strengthen the IP rights and reduce the infringements, especially regarding the trademark contraventions. The government is working to improve the border controls to stop the counterfeit products from coming; however, many customs officials do not have the expertise required to identify illegal goods. Furthermore, as judges often do not have sufficient knowledge about the IP laws, disputes related to IP are often resolved through mediation, arbitration, and the Ministry of Science and Technology’s Dispute Settlement Division.

Myanmar’s Struggles

Myanmar has been a member of the WTO since January 01, 1995; however, it has made slower progress than the other two countries in adopting the TRIPS standards. Political instability, especially with the military taking control in February 2021, has hindered legal reforms.

Until recently, Myanmar’s IP rules were based on the British law. In 2019, the Union Legislative Assembly passed four new laws to align the rules with the TRIPS: the Copyright and Related Rights Act, the Trademark Act, the Patent Act, and the Industrial Design Act. The original plan was to implement these laws gradually from 2020, beginning with the establishment of a new Intellectual Property Department (IPD) under the Ministry of Commerce. Later, the IPD would get involved in the enforcement of the Trademark Act, followed by the Industrial Design Act, Copyright Act, Patent Act, and Trademark Act (regarding geographical indications). However, the COVID-19 pandemic and the political crisis of 2021 slowed the progress down somewhat.

After a partial opening of the IPD in October 2020, the new Department formally began its work in March 2023, and the trademark registration system became fully operational. In addition, the Supreme Court conferred jurisdiction on various courts to handle IP cases. The Copyright Act and the Industrial Design Act only recently came into effect, on October 31, 2023.

These new laws represent a significant step toward modernizing the Myanmar’s IP system. However, some issues remain, such as the lack of patent protection and limited copyright protection for foreigners. According to the new Copyright Act, works created by non-Myanmar citizens are protected only if they are first published in Myanmar or published in the country within 30 days after being first published abroad. This is because Myanmar is not a member of the Berne Convention, which provides equal protection to both national and foreign authors.

The Myanmar’s Sustainable Development Plan for 2018–30 outlines how the government intends to boost the creativity and innovation to transform the economy. This involves supporting research and improving the IP protection. Myanmar has a long way to go to achieve this goal and strengthen its IP system, which is still in its early stages.

Looking Forward

All the three countries understand that IP is essential for economic growth and development. Cambodia and Laos have made impressive progress in developing their IP regulations, while the Myanmar’s system is still in its infancy. All three countries face challenges, and enforcement remains weak across the board, with insufficient resources hindering reforms. The Regional Comprehensive Economic Partnership (RCEP) may provide some help to the three LDCs that have ratified this Agreement. The RCEP offers LDCs transitional periods and technical support for meeting IP obligations.

In summary, these nations have made some progress in aligning their laws with the TRIPS minimum standards; however, they continue to face significant challenges. They must strengthen the IP enforcement and invest in the people and technology to ensure long-term growth and integration into the global economy.

Author’s Note

This column is primarily based on the following book chapter: Garcia, Gabriel. 2023. “Intellectual Property Rights in South East Asian Least Developed Countries: The Cases of Cambodia, the Lao People’s Democratic Republic, and Myanmar.” In Intellectual Property Law in Southeast Asia, edited by Christoph Antons and Michael Blakeney, 157–215. Cheltenham: Edward Elgar. https://doi.org/10.4337/9781035308392.00011

Note:

1. United Nations, Handbook on the Least Developed Country Category: Inclusion, Graduation and Special Support Measures, 3rd ed. (UN, 2018), 1.

Author’s Profile

Dr. Gabriel Garcia is an Associate Professor in the Faculty of Business and Law at the University of Wollongong, Australia, and a former Visiting Research Fellow at IDE. He is also a co-researcher of an IDE research project titled “Relations between Japan and Latin America-Caribbean: Working Together for a New International Order.” His research focuses on the International Economic Law and adopts a sociolegal approach that explores the intersections of that field with development studies and international relations. His research projects examine the trade, investment, and assistance provided as a part of the cooperation between Latin America and Asia, as well as the challenges faced by developing countries in adopting the international Intellectual Property rules and building inclusive international organizations.

Other Articles by This Author

Garcia, Gabriel. 2016. “The Rise of the Global South, the IMF and the Future of Law and Development.” Third World Quarterly 37 (2): 191–208. https://doi.org/10.1080/01436597.2015.1108826

———. 2023. “Brunei Darussalam: Building an Intellectual Property System for a Knowledge and Innovation Economy.” In Intellectual Property Law in Southeast Asia, edited by Christoph Antons and Michael Blakeney, 127–55. Cheltenham: Edward Elgar. https://doi.org/10.4337/9781035308392.00010

Garcia, Gabriel, and Xu, Qinqing. 2023. “China’s International Cooperation: Assisting Developing Countries to Build Intellectual Property Systems.” Queen Mary Journal of Intellectual Property 13 (1): 52–74. https://doi.org/10.4337/qmjip.2023.01.03

* The views expressed in the columns are those of the author(s) and do not represent the views of IDE or the institutions with which the authors are affiliated.
** Thumbnail image: Intellectual property (Warchi /E+ /Getty Images)