Malaysia near full compliance with TPPA requirements on IP laws

KUALA LUMPUR: Malaysia’s intellectual property (IP) laws are almost fully compliant with Trans Pacific Partnership Agreement (TPPA) requirements, said Shearn Delamore & Co partner Indran Shanmuganathan.
“So far as the TPPA is concerned, they’ve got a very extensive IP chapter. But in terms of compliance, Malaysia is almost there, there are not much legislative changes that need to be made to our Malaysian legislation to bring it up to TPPA standards. I think we are more or less there even without the TPPA,” he told reporters on the sidelines of The King’s Discourse on the TPPA on Saturday.
Indran said there will be some changes, which are more structural amendments, but Malaysia is essentially up to speed in terms of complying with TPPA standards.
“I wouldn’t say it is such a big concern. In addition to that, there’s also a health provision in terms of the objectives of the TPPA which allows parties, individual countries to legislate on areas where health needs are taken care of.
“So if there is for some reason a fear that pharmaceutical companies may get an added advantage, it allows member states to ensure that public health is also given some provision,” he said.
In terms of implementation, Indran said, Malaysia has a good court system which moves fairly quickly and most IP cases that are heard in the High Court will have a decision within 12 to 18 months, which is considered fast by current standards.
Indran said his concerns are more on the criminal side and the need for more specialised judges in Malaysia.
“We have a specialised IP judge in Kuala Lumpur to deal with IP matters but it is not necessarily the case in other states,” he said.
On the criminal side, Indran said, the ministries are quite fast in initiating enforcement action but the problem is more on the prosecution side.
“After they have initiated the initial raid and enforcement actions, it takes a bit longer for the prosecution. In that area there’s a little bit of a backlog … maybe on the government agency side, the question is, could they be a little more proactive? They have got certain programmes that brand owners can participate in but in some cases they may not be as effective,” he added.
Indran said Malaysia operates at a fairly high standard in terms of IP laws and does not foresee a significant impact on businesses.
“There are some changes that need to be made. For example, in terms of trademark law, at the moment we recognise conventional trademark rights. The TPPA is planning to introduce the recognition of sound trademark and smell trademark. That’s an extension of trademark protection.
“In terms of copyright, the TPPA will extend the duration of copyright protection. Currently in Malaysia it is 50 years plus the life of the author. Once TPPA comes into force, it is 70 years plus the life of the author and it has retrospective effect. So you may have an instance where copyrights are revived,” he said.
However, former law professor at University of Malaya Gurdial Singh Nijar said the extension of the copyright protection duration could have a major impact on small and medium enterprises (SMEs) that make up 90% of businesses in Malaysia.
He said SMEs rely on the expiry of the copyright to use the information for their businesses as small companies cannot afford to do their own research and development.
“With restrictive IP laws, SMEs have to either buy the technology or do their own research. This will have a major impact on the SMEs,” he added.