Commission on Intellectual Property Rights Country Case Study for Study 9




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MANDATE

The mandate of the Mission is to assess how best the World Intellectual Property Organisation (WIPO) would assist the State of Eritrea in establishing an Industrial Property Office. The Mission was tasked to:-


“ (i) Assess the current situation;


  1. discuss the draft industrial property law sent to government by WIPO and provide explanations, where necessary;




  1. discuss possible work procedures and develop a training programme;




  1. assess possible equipment, documentation and human resources needs;




  1. provide information on treaties in the intellectual property field; and




  1. advise the government authorities on administrative and organisational policies to be adopted in the implementation of the legislation and obligation arising from membership of international conventions.”



INTRODUCTION




Background

The State of Eritrea attained its Liberation and Independence on 24th May, 1991 and 24th May, 1993 respectively. Prior to independence the State of Eritrea was under the Italian and British rule from 1809 to 1950. From 1950 to 1960 it was a federation of Ethiopia and Eritrea. The state of Eritrea was engaged in an armed struggle for its independence against the rule of the regimes of Haile Selassie and Mengistu Haile Mariam from 1961 to 1991.


There is no evidence to indicate that an industrial property office ever existed during the period referred to above. It would appear that the State of Eritrea was treated as a province of Ethiopia.

With this background, the state of Eritrea deserve a special treatment and assistance from WIPO to enable this young nation to establish an industrial property office.


1. CURRENT SITUATION

INTELLECTUALL PROPERTY

The State of Eritrea has some intellectual property legislation contained in the Commercial Code, Civil Code and Penal Code. These Codes were proclaimed by Ethiopia in 1957 and 1960 and the State of Eritrea adopted these Codes on transitional basis and certain provision of these Codes were not adopted.


The State of Eritrea does not have an industrial property office, however, there is one officer who attends to industrial property matters. The officer is designated as Director of Domestic Trade.
During the meeting with the Honourable Minister of Trade and Industry, the Mission emphasised the importance and the urgent need for the State of Eritrea to enact industrial property legislation and the establishment of an industrial property office. The Mission informed the Honourable Minister the important role an IP office can play in the transfer of technology for development.

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  1. THE WIPO DRAFT INDUSTRIAL PROPERT LAW OF 1995

In 1995, at the request of the State of Eritrea, WIPO prepared a draft Industrial Property Law for the consideration by the government of the State of Eritrea.


The Mission discussed the draft law with the following:-


  1. The Honourable Minister of Trade and Industry;




  1. The Director General of the Department of Trade, Ministry of Trade and Industry;




  1. The Director of Domestic Trade, Ministry of Trade and Industry;




  1. The Director General of the Department of Legal Services, Ministry of Justice;




  1. The President of the High Court (Chief Justice);




  1. The Attorney General;




  1. The Director of the Law Programme (Dean School of Law);




  1. Dr. Yohannes Berhane, Former Vice President of High Court, Now Practisting Advocate and legal consultant;




  1. Mr. Berhane Gila- Michael, Intellectual Property Lawyer;




  1. The Legal Advisor, Ministry of Trade and Industry; and




  1. Mr. Kebreab Habte Michel, Legal Practitioner;

The Honourable Minister expressed his gratitude and appreciation to the Director General of WIPO, Dr. Kamil Idris for sending the mission. He assured the Mission that the Government of the State of Eritrea was committed to ensure that the question of putting in place of the intellectual property regime would receive his government’s attention, even though the State of Eritrea is at war. He assured the Mission to feel free to call on him. He informed the Mission that the details of the draft should be discussed with the Legal Advisor in his Ministry and the Director General of the Department of Legal Services, in the Ministry of Justice.


The draft Industrial Property Law was discussed with the Director General of Department of Legal Services with the Mission in company of the Legal Advisor of the Ministry of Trade and Industry. The Director General of the Department of Legal Services was of the opinion that since the draft was prepared in 1995, a new draft should be prepared taking into account the new developments in this field since 1995. The Mission assured him that the draft as it stands was in order, however that his wishes would be looked into, and if necessary WIPO would update the draft. The Director General of Department of Legal Services informed the Mission that a decision has already been made by Government that an IP Legislation would not be part of the Civil Codes as was previously, but that a separate proclamation would be made to accommodate IP matters.
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The President of the High Court was supportive of a new IP proclamation which will address the lacuna in the present legislation. He expressed concern, in particular to lack of adequate provisions relating to Copyright. He pointed out that there are a number of people who do not have respect for other people’s work, e.g. some individuals they sell in their bookshops books that are copies made on photocopies. The Mission visited a number of Bookshops and found evidence supporting the information given by the President of the High Court. Upon questioning the bookshop attendant the Mission was informed that these books were photocopied in India.

The Mission discussed the draft in great detail with the Legal Advisor in the Ministry of Trade of Trade and Industry as suggested by the Honourable Minister of Trade and Industry and explanations were given. Infact all provisions of all the draft IP Law were explained.
The Director of the Law Programme welcomed the Mission and informed it that the Law School taught Intellectual Property as an elective course. He said that at the moment it was not being taught since Dr. Yohannes Berhane stop teaching the course. He however expressed gratitude to WIPO for provision of some IP WIPO publications.
The Attorney General was briefed by the Mission regarding the draft industrial property law and he took note of the draft. He however informed the Mission that with regard to the set up, the Attorney General’s function were mainly Criminal and Civil, and that the drafting of legislation is done by the Director General of the Department of Legal Services in the Ministry of Justice. He pointed out that he sits on the Codification Commission. This is Commission which discuss all legislation to be proclaimed. He was also supportive of the proclamation of a new IP Law.
A number of Legal Practitioners involved in intellectual property welcomed the move by government to update the IP Laws and the initiative to establish an industrial property office.
They contended that the IP Laws now in place contained in the Commercial Code, Civil Code and Penal Code were inadequate and needed to be replaced with new modern IP Law.
The Majority of the people the Mission came into contact were of the opinion that it was about time that the government should review the present IP and replace it with modern law. The Mission observed that due to lack of adequate IP law, most shops sold goods which were:-


  1. bearing imitated trademarks such a Adidas, Nike, Calvin Klein, Pierre Cardine, Lacoste, Christian Dior etc;




  1. goods having similar marks such as Adibas, (original mark being Adidas);




  1. entire books were copied such as:- Lee lacocca, Daniel Steel, Positive imaging, Irving Wallace.

The Mission emphasised the importance of enacting new IP laws to the Honourable Minister of Trade and Industry, the Director General of Trade, Ministry of Trade and Industry and the Director General of Legal Services, Ministry of Justice.


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The Director General of Trade suggested to the Mission that a half day seminar be conducted to which business community who are members of the Chamber of Commerce and other interested parties in IP matters be invited. The Mission agreed to the suggestion and a half-day seminar was held at which Mission discussed the following topics:-


  1. Intellectual Property in general – Definition and Interpretation.




  1. Examination of IP in Eritrea – Commercial Code, Civil Code and Penal Code.




  1. Paris Convention – Patents, Trade marks and unfair Competition.




  1. Berne Convention – Copyright and neighboring rights (related rights).




  1. Patent Co-operation Treaty (PCT).




  1. The World Trade Organisation (WTO) (TRIPS Agreement).




  1. Advantages of enacting new IP Law and need for establishment of an IP Office.




  1. WORK PROCEDURE AND TRAINING PROGRAMME




  1. WORK PROCEDURE

It is not possible to develop work procedure at the moment as there is no IP office and the current IP legislation is silent on registration of Patents, Trademarks or Industrial designs. The Provisions contained in the Commercial Code, Civil Code and Penal Code are not sufficient to enable the development of work procedure.

The work procedure would only be devised and developed after the IP law has been enacted and the Regulations to implement the IP law have been promulgated. The Regulations for implementation of the IP law will in great detail lay down procedures to be adopted in the administration of the Industrial Property Law. The Regulations will be supplemented by Forms to be used in the application for various IP rights.
At the moment it is premature to draw working procedures, as these will be guided by the IP law once enacted.


  1. TRAINING PROGRAMME

It is imported at the outset to ensure that training of IP staff is embarked upon, even though the IP law and IP office is not in place. Suitable officers with necessary educational background should be identified in order for them to undergo training in IP matters.


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The Training should encompass:-




  1. Attachment to IP office (s) for one to two months;




  1. Attendance of IP introductory courses conducted by WIPO, IP offices and other international IP organisations;




  1. Study tours, especially for the Head of the IP office, as this will provide an opportunity to learn how other IP office operate; and




  1. When the IP office is established, on-job-training will be necessary.

The on-job-training will require that an expert who has worked in an IP office is attached to the office to assist the Head in training staff in the administration of the office. The attachment could be for a period of one to two months in the initial stage and then a follow up after some period.




  1. ASSESSMENT OF REQUIRED EQUIPMENT, DOCUMENTATION AND HUMAN RESOURCES.




  1. EQUIPMENT

The IP office when established will require some Equipment such as Computer with scanner, photocopier, fax, office furniture (Desk, Chairs, Filing Cabinets etc). In other words there is no equipment at the moment as the IP office is not in existence.




  1. DOCUMENTATION

There is no IP documentation, except for a few WIPO Convention such as Paris Convention, Patent Cooperation Treaty, Berne Convention and Copyright Treaty. Therefore when the office is establish there is a need to have the necessary IP literature and documentation for use by the staff and the public at large.

It is important that in order for the office to function efficiently when established, it is necessary to have adequate equipment and documentation. At the moment, it appears that this young Nation can not manage to finance the purchase of equipment and documentation. In this respect it is strongly recommended that WIPO should if possible assist in the purchase of these equipment and IP literature.


  1. HUMAN RESOURCES

The officer who deals with IP issues in the Ministry of Trade and Industry is the Director of Domestic Trade. Therefore there is no staff currently trained in IP matters. It is envisaged that when the office is established should have the following skeleton staff, (see the Annex 1):-




  1. 1 Director – Head of the Office


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  1. 1 Head of IP Unit – this officer will report to the Director (Head of office) and will be in charge of Patents, Trademarks and Designs matters. Under him or her will be:-




  1. 1 Patents Trademarks and Designs officer;




  1. 1 Examiner – he or she will perform the functions of an Examiner as to formalities;




  1. 1 Documentation and Search Clerk; and




  1. 1 Computer operator/Data capture.



  1. 1 Head of Administration and Finance Unit – He or She will report to the Director (Head of office) will be in charge of administration and finance matters. Under him or her will be:-




  1. 1 Accounts clerk – he or she will deal with accounts and ensure that the money is banked;




  1. 1 Cashier – will receive all payments due to the office and hand it to accounts clerk for banking; and




  1. Computer operator.

The identification of the staff and training programme should be undertaken as soon as the new IP legislation is put in place. The training should start as soon as government decides to enact the IP law. The kind of training programme recommended is the one outlined in paragraph 3 (iii) above.


5. WIPO TREATIES IN INTELLECTUAL PROPERTY FIELD


  1. THE PARIS CONVENTION

The Mission explained to the Director General of Legal Services in the Ministry of Justice and the Legal Advisor in the Ministry of Trade and Industry, the importance of this Convention, as being the cornerstone of industrial property. The Articles dealing with issues such as “National Treatment, Unfair Competition, Well-known Marks” were explained in greater detail”. The Mission urged the government to consider joining the Paris Convention, as this would bring advantages to its nationals. The Mission pointed out to the officers that since the state of Eritrea is a party to the World Intellectual Property Ogranisation (WIPO), it may become a party to the Paris Convention without any further financial obligations. The contribution made to WIPO suffices.



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(ii) THE BERNE CONVENTION
The Mission explained to the Government officials i.e. the Director General of Trade and Industry and Director General of the Department Legal Services, Ministry of Justice that the Berne Convention is the basic Convention which deals with matters related to Copyright and Neighbouring rights. It is the Conerstone of literary and artistic works, and that it is advantageous for the State of Eritrea to become a party as this would enable the nationals to enjoy and protect their rights in members States party to the Convention.
The Mission also informed the government the advantages the State of Eritrea would benefit being a party to the Patent Cooperation Treaty (PCT) and the Trademark Law (TLT). During the half-day seminar the Mission took advantage and explained in detail the benefits which would be accrued, if the State of Eritrea was a party to the Convention mentioned above.


  1. ADVICE TO GOVERNMENT ON ADMINISTRATIVE AND ORGANISATIONAL POLICES TO BE ADOPTED IN THE IMPLEMENTATION OF LEGISLATION AND OBLIGATIONS ARISING FROM MEMBERSHIP OF INTERNATIONAL CONVENTIONS.

The Mission informed the government that IP offices are mainly placed under the portfolios of the Ministry of Trade and Industry or Ministry of Justice or Ministry of Science and Technology or Ministry of Education or Ministry of information. In most countries the decision as which Ministry is charged with the portfolio of IP office is made by the Head of State in consultation with the Cabinet.


In Eritrea the situation is that industrial property matters are under the Ministry of Trade and Industry and whereas the copyright and neighbouring rights fall under the Ministry of Education. The Mission advised the government that it was important to ensure that the new IP Legislation is enacted or proclaimed. Once the new IP Law is put in place, then the necessary regulation for the implementation of the law would be promulgated and this would lead to the establishment of an IP office.
Immediately or just before the new IP law is enacted the State of Eritrea should consider joining the Paris Convention and Berne Convention. These Conventions are the most important in the field of Intellectual Property and are a cornerstone to IP matters. The obligations under these two Conventions were explained to government. The Mission however pointed out that there are no financial obligations, in view of the fact that the State of Eritrea is a member of WIPO.



  1. RECOMMENDATIONS




  1. The assessment of the current situation is that a new IP Law is a must in order to replace the present law contained in Commercial Code, Civil Code and Penal Code, which laws were proclaimed in 1957 and 1960 by the Ethiopian Government and does not meet the current trends, as the law is absolute due to the development of IP laws in recent years.

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  1. The draft Industrial Property Law was discussed with all interested parties. The Director General of Legal Services requested that the draft be up dated and that translation in Tigrigna (local language) and Arabic be provided by WIPO. In view of the current situation in Eritrea, it is necessary that WIPO do consider to provide some financial support for the translation in Tigrigna. Also funds being available it would be necessary to invite the Director General of Legal Services, in the Ministry of Justice and the Legal Advisor in the Ministry of Trade and Industry to Geneva to discuss further the draft.




  1. The work procedure can only be addressed when the new IP Legislation has been enacted and the Regulations promulgated. As no work procedure could be worked out in the absence of the law.

The training programme should be embarked upon, this will include:-




  1. Identification of suitable staff and attachment to other IP offices for a period of one to two months;




  1. Attendance of IP introductory course conducted by WIPO and other agencies or IP offices;




  1. Study tours, especially for the designated Head of IP office; and




  1. On-job-training to be conducted by an expert when the office is finally established. This is important to ensure that a good start is made and work procedures are complied with. This should be done by someone who has work experience in an IP office.




  1. Eritrea is in the state war and it is unlikely that it has funds for purchase of equipment and documentation, and therefore it will need the financial and material support from WIPO to purchase the necessary equipment required for an IP office.




  1. The information regarding treaties in the intellectual property field were given to various officials during the Mission. However, the Mission is of the considered opinion that a national seminar should be organised to sensitize the public thereby creating awareness of industrial property in the country.




  1. Eritrea should be considered as a special case and it therefore requires special treatment. It is a young nation which has experienced no peace for the last 30years. Its development has been hampered by this long drawn war. It has nothing on the ground in terms of IP infrastructure and it needs to catch-up with other developing countries. Therefore financial and material assistance from WIPO would help greatly. The Mission recommends that the Director General, Dr. Kamil Idris gives his favourable consideration to the request of this young nation.



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