South-East Asia IPR Basics Series: Copyrights and Trade Secrets in Laos

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Copyrights are the rights of a creator of a book, song, play, or other creative work over the use of that work. Trade secrets are the undisclosed information that a company uses to gain an advantage over its competitors. Both are important products of creative brainpower which can set an SME apart.

This article details rules in Laos’  Law on Intellectual Property concerning copyright and trademark registration, protection, and enforcement. For SMEs seeking to reap the rewards of their creativity and maintain a competitive edge in Laos, the information herein represents an important first step in guarding against counterfeiting and IP piracy.

Laos: a background for SMEs

The Lao PDR is a landlocked country in Southeast Asia sharing land borders with China, Vietnam, Cambodia, and Thailand. Its 6.8 million residents live in a developing nation which has seen mono-party Communist rule and endemic corruption since 1975. The country is member of the WTO, ASEAN, the Asia-Pacific Trade Agreement, the East Asia Summit, and the International Organization of La Francophonie (OIF). The Lao PDR ranks 148th in the world in Ease of Doing Business according to a World Bank report in 2014.

Laos’ trade with the EU, although small, is rapidly growing. In 2014, EU exports to Laos grew 53.3% to reach 182 million euros. That year, machinery, appliances, and transport equipment cumulatively made up 63% of EU exports to Laos, particularly non-electrical machinery (25.9%). These figures put the EU as a distant fourth among Laos’ largest trading partners after Thailand, China, and Vietnam. Both machinery and equipment and consumer goods have been identified as ASEAN as target areas for FDI in Laos.

Prior to Laos’ accession to the World Trade Organisation (WTO) 2 February 2013, the country’s intellectual property laws went through considerable amendments. IPRs in Laos are governed by the Law on Intellectual Property No. 01/NA of 20 December 2011 (“IP Law”), protecting copyright and related rights, patents, petty patents, industrial designs, trademarks, trade names, layout designs of integrated circuits, geographical indications, trade secrets, and plant varieties. The new IP Law is based on the World Intellectual Property Organization (WIPO) model law and the requirements of the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement. Following promulgation of the new IP Law in 2012, it is expected that the Prime Minister will issue guiding decrees on the implementation and interpretation of the new legislation. The Lao PDR is a member of the following international conventions regulating IP matters[1]:

  • Patent Cooperation Treaty
  • Berne Convention for the Protection of Literary and Artistic Works
  • Paris Convention for the Protection of Industrial Property
  • Convention Establishing the World Intellectual Property Organization
  • ASEAN Framework Agreement on Intellectual Property Cooperation
  • ASEAN Trade in Goods Agreement

Copyrights

Definition of copyrights

The Law on Intellectual Property of Laos defines copyright as “the right of individuals, legal entities or organizations to their creative works in the domains of art and literature, including scientific works.” Copyright in Laos is immediately created when a work is “fixed in a tangible medium.” The law lists a series of artistic expressions and other subject matters protected as copyrights, including:

  • Drawings, paintings, carvings, lithography, tapestry or embroidery and other works of fine art;
  • Sculptures, engravings and other works of sculpture;
  • Designs of buildings or construction, internal or external decorations designs and other architectural works;
  • Photographs using technical methods and works expressed by an analogous process;
  • Illustrations, maps, plans, sketches and three dimensional works related to geography, topography, architecture or science;
  • Dramatic or musical works, pantomimes or drama, choreographic works and other works created for performance;
  • Musical compositions with or without lyrics including edited notes or tunes;
  • Works of applied art;
  • Film or other cinematographic works or works expressed by an analogous process
  • Works of literature such as books, lectures, or computer programs
  • Collections of literary or artistic works, such as encyclopedias, anthologies or compilations of data

Certain items are listed as ineligible for copyright, including news, pure ideas and mathematical concepts, and official texts and their translations. Anyone who first creates or performs a work, records a work, or broadcasts a work is eligible for protection of related rights of that work. Laos also offers protection for related rights, which it defines as “the right of individuals, legal entities or organizations to works of performances, phonograms, broadcasts of programs or broadcasts of satellite signal carrying encrypted or unencrypted programs.” Related rights in Laos protect those creative acts which fall short of being works protected under author’s rights in copyright but which also require enough creativity to be protected by copyright.

Copyright ownership

Copyrights need not be registered, but a notification of rights should be recorded with the Ministry of Science and Technology in order to facilitate dispute resolution. In any case, copyrights belong to the author(s) of the work in question, or to whomever the owners assign the copyright, or to the employer of the employee who created the work.

Economic rights

The author or copyright owner of a work has the exclusive right to carry out or authorize the following actions relating to his works:

  • Making a collection of such works
  • Reproducing the works
  • Translating, reciting, adapting through film, or performing the works
  • Broadcasting the works, including recording the broadcast if no permission is given to do so
  • Communicating the works to the public
  • Directly or indirectly reproducing any part of a sound recording, computer program, or compilation of data
  • Importing copies of sound recordings
  • Renting, leasing, or distributing the original recording and its copies, etc., etc.

Moral rights

Even when the author of a work has given up his or her economic rights, the author still retains moral rights which give him some degree of control over the work. Laos recognizes the following moral rights of the author of a work which has received copyright:

  • First disclosure and publication of the work
  • Attribution, which includes:
    • Claiming authorship
    • Having his name used in connection with publicity regarding the work
    • Using a pseudonym or publishing the work anonymously
    • Objecting to misattribution of the work or to attribution of another work to himself
  • Objecting to distortion or modification of the work which would injure the author’s integrity. This right extends to all individuals regarding works which are falsely attributed to them.

Period of protection

Copyrights begin on the date the work is created and extend to the end of the calendar year for the timelines listed below. Most copyrights extend fifty years from the date of death of the author. For cinematographic works, rights extend fifty years from when the work was made available to the public or fifty years from when it was made, whichever comes first. For applied art, copyrights last twenty five years. Related rights also last for fifty years. Laos allows some use of copyrighted material for fair use, including reasonable use for teaching materials or news reports.

Protecting your Intellectual Property Rights

SMEs have a number of legal recourses to protect their IPR against infringement by illegal reproduction, circumvention of technological measures used to protect copyrighted works, illegal dissemination, or other offenses. Lao PDR’s Law on Intellectual Property sets out six means of conflict resolution in Article 123:

  1. Reconciliation between the two parties
  2. Mediation
  3. Administrative settlements
  4. A settlement through the Economic Dispute Resolution Committee
  5. Action in the People’s Courts
  6. International dispute settlement

Mediation

IPR disputes in Laos can be slow, costly, and unpredictable. Endemic corruption, combined with an inefficient bureaucracy, means that SMEs should resort to civil enforcement only once they have exhausted other means. Often a quick and cost-effective solution to IPR issues is mediation with infringers in accordance with tort law. SMEs are encouraged to seek mediation as a first option.

Civil enforcement

IPR owners may turn to the People’s Court at the district or provincial level to enforce their rights by means of civil litigation. Available remedies include:

  • A court order to the effect that the infringer ceases with the infringing acts.
  • A suspension of customs clearance goods.
  • A judgement of infringement.
  • Damages – compensation for infringement and legal fees.
  • The destruction/disposal of infringing goods.
  • The disposal of tools, etc., used to create/commit the infringement.

The District/Provincial Court’s decision may be appealed to the Appellate Courts and the Supreme People’s Court. Overseas court orders must be recognised and approved by the Laos courts to be effective and executable in Laos. In addition, IPR owners may request the People’s Court to order prompt and effective provision measures (injunction orders) to:

  • Prevent an infringement from occurring.
  • Prevent the entry into the channels of commerce of goods, including imported goods immediately after customs clearance.
  • Preserve evidence in regard to the alleged infringement.

Moreover, an IPR owner may apply for ex parte provisional measures with the People’s Court where any delay is likely to cause irreparable harm to the IPR owner or where there is a demonstrable risk of evidence being destroyed.

Criminal prosecution

Criminal prosecution may be initiated through the Lao police force (economic division), who refer the case to a public prosecutor for criminal court action. The competent court is the People’s Courts at the provincial level (and the Appeal Court and the Supreme People’s Court for appeals). Criminal actions are available for the protection of copyright, patents, industrial designs, geographical indications trade secrets and trade marks. Possible penalties include damages, imprisonment for three months up to two years, and fines of between LAK 500,000 and 10,000,000, equivalent to approximately EUR 50 and EUR 1,000. The infringer may also be subject to additional measures, including suspension, withdrawal of business licenses and seizure of infringing goods and equipment used to commit the infringement.

Trade Secrets

Definition

A trade secret is defined as “information which is secret in the sense that it is not known among or readily accessible to persons within the circles that normally deal with the kind of information in question, such as: formula, production process, or any information, which has commercial value because it is secret.” Essentially, it is a commercially valuable piece of information that is not known, or readily ascertainable, and gives the holder an economic advantage over competitors and customers.

To qualify as a trade secret, the Law on Intellectual Property states that information must meet the following requirements:

  1. The information must be a secret; not known among or readily accessible to persons that normally deal with the kind of information in question.
  2. The information must have commercial value.
  3. The proprietor of the information must have taken reasonable steps to keep the information secret.

Protecting trade secrets

Due to their discrete nature, trade secrets are not registered. Instead, trade secrets are automatically granted unlimited protection until their secrecy is lost. When a trade secret is disclosed unlawfully, the owner of said secret can take legal action to seek damages.

Article 60 of Laos’ Law on Intellectual Property grants the proprietor of a trade secret the following rights:

  1. To prevent the trade secret from being disclosed to, acquired by, or used by others without the proprietor’s consent, in a manner that is contrary to honest commercial practices, EXCEPT:
    • Discovery of the information by reverse engineering, laboratory testing, analysis or other similar means; or
    • Acquisition of the information without an obligation of confidentiality or trust.
  2. To protect the trade secret against infringement by initiating court actions and claim damages to compensate for the infringement.
  3. To prevent the trade secret form being misappropriated.
  4. To disclose, withdraw or utilize, or transfer the trade secret to other persons.
  5. To control any person who is in lawful control of the trade secret from employment or a contract or other agreement. It may be that a person’s obligation of confidentiality remains in effect as long as the information remains a trade secret, even if that person’s employment, contract, or other agreement has already concluded. In this event, that person must not divulge the trade secret so long as the confidentiality agreement remains in effect

The most effective line of defence for trade secrets are non-disclosure agreements or confidentiality clauses in employee contracts. These serve to create a legally binding obligation for employees to not reveal trade secrets and serve to prove that the proprietor has taken reasonable steps to keep the information secret.

Additional Information

For more information on Laos IPR and how to best product your products against infringement in the Lao People’s Democratic Republic, check out the guides available at our Helpdesk or contact one of our experts for free, tailored advice.

Relevant contacts

  • Department of Intellectual Property
    Ministry of Science and Technology (MOST)
    Nahaidiao Street
    P.O. Box 2279, Vientiane, Laos
    Tel: (856-21) 240 784
    Fax: (856-21) 213 472

[1] For more information, see the WIPO website at: http://www.wipo.int/wipolex/en/profile.jsp?code=LA#a6

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