Intellectual Property Rights

10 October 2016

The world is changing at a rapid pace and technology is evolving every day, hence the traditional copyrights and patent rights are no longer adequate to confer rights to the owners of the creations. An urgent need to protect the Intellectual Property Rights is being felt both at domestic and international level . With the adoption of the Trade Related Aspect of Intellectual Property Rights, it is now increasingly considered as an essential tool for developing countries.

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Unfortunately, to date, Mauritius is lagging far behind. This paper is an attempt to outline the current status of IPR in Mauritius, some important constraints faced, as well as how policy makers are planning to make Mauritius up to date with the international norms . Introduction The enforcement of Intellectual Property Rights in Mauritius is conferred by the Patents Act 1875, the Trademarks Act 1868 and the Copyright Act 1956 being the oldest legislation.

Our IPR enforcement mechanism took a new turn in 1995 when the TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement of the World Trade Organisation came into effect. In order to conform our legislation with the principles and obligations laid down in the TRIPS, new pieces of legislations were adopted, namely: 1. The Copyright Act 1997 2. The Patent, Industrial Designs and Trademarks Act 2002 3. The Protection Against Unfair Practices (Industrial Property Rights) Act 2002 4. The Layout Designs (Topographies) of Integrated Circuits Act 2002 5. The Geographical Indications Act 2002

The Copyright Act covers protection of artistic, literary and scientific works created or published by an author who is a citizen of Mauritius or having his habitual residence in Mauritius or in any country party to the Berne Convention for the Protection of Literary and Artistic Works. The Act guarantees protection of the economic and moral rights of the author and this protection is not subject to any formalities. Economic and moral rights relating to the work of an author is protected during his lifetime and 50 years thereafter, while the rights relating to a photographic work is rotected until the expiry of 25 years from the making of the work. Under the Patent, Industrial Designs and Trademarks Act, an invention may be protected for a period of 20 years, subject to payment of an annual fee. Trademarks may be protected for an initial period of 10 years and may be renewed for consecutive periods of 10 years. The registration for industrial designs is for an initial period of 5 years and renewable for another period of 5 years. The Act also provides for renewal for 2 further consecutive periods of 5 years subject to certain conditions.

The Protection Against Unfair Practices (Industrial Property Rights) Act protects against unfair practices arising on the basis of industrial property rights. It provides for instance that causing confusion with respect to another’s enterprise or damaging another’s goodwill or reputation amounts to an unfair practice punished by fines of up to Rs 250,000 and terms of imprisonment of up to 5 years. The Act more specifically targets unfair practices involving the use of a trademark, trade name, a business identifier, the appearance of a product, the presentation of products and services.

The Geographical Indications Act provides for a system of protection of geographical indications in the context of the obligations undertaken by Mauritius under the TRIPS Agreement. A Geographical Indication (G1) is defined as an indication which identify a good or goods, as originating in the territory of a member or a region or a locality of the territory where a given quality, reputation or other characteristic of the good is attributable to its geographical origin.

The Act renders unlawful the use of a GI for identifying a wine or spirit not originating in the place indicated by the GI in question, a practice which may give rise to a claim in damages and to criminal sanctions. This legislation has however not yet been proclaimed. The Layout Designs (Topographies) of Integrated Circuits Act enunciate the basic principles regulating the protection of layout designs of integrated circuits. Protection of integrated circuits constitutes a relatively new area.

It has not featured in the legislation of several countries for many reasons, one of them being the absence of technical knowledge or expertise for the mass design of integrated circuits. It is to be noted that this legislation has not been proclaimed either. The institutional framework for IPR enforcement is made of a number of bodies and institutions. The Industrial Property Office, under the aegis of the Ministry of Foreign Affairs, International Trade and Regional Cooperation, is responsible for processing registrations of patents, trademarks and industrial designs.

An Industrial Property Tribunal has been created to rule on cases such as rejected applications for registration. As far as copyrights are concerned, the Mauritius Society of Authors administrates the economic rights of copyright owners and exclusive licensees, grants authorisation for the use of protected works and is responsible for the collection and distribution of royalties. Moreover, the Ministry of Arts and Culture operates a Copyright Desk responsible for information to the public and registration matters.

The Anti- Piracy Unit of the Police and the Customs Authorities also play a crucial role in the enforcement of IPR by intercepting counterfeits and pirated goods. The above overview of our legal and institutional framework for IPR enforcement gives a clear indication of a willingness to provide the right protection for legitimate owners of intellectual property rights. However, our IPR system is relatively young and needs a number of improvements and consolidation to live up to future challenges.

Recomendations First of all, there is a need to develop and reinforce our national intellectual property infrastructures. The creation of a single organisation to deal with IPR and regrouping the various departments and organisations mentioned above may be envisaged, for increased efficiency and coherence. Adequate human resources and expertise in the field is essential in order to avoid long time delays for procedures such as processing patents, trademarks and other applications.

The fight against piracy and counterfeiting must be reinforced. The duty-free island project can lead to the development of a parallel economy if counterfeit and piracy continues to flourish on the island. Moreover, our capacity to attract foreign investors will depend a lot on the protection being guaranteed to IP. Indeed, no brand owner would be interested in opening retails shops in Mauritius knowing that fake copies of his goods are being sold at much lower prices by the street hawker.

At the policy and regulatory level, a number of developments would be well received. For instance, acceding to the Madrid Protocol would give Mauritian trade marks holders the possibility of being protected in a number of Member Countries with just one application, saving much time and money by foregoing the trouble of undertaking multiple application procedures. The same applies to the Hague Agreement for the protection of industrial designs and the Patent Cooperation Treaty for obtaining international patent protection.

Sensitisation campaigns on the importance of IPR should be organised. An IPR enforcement mechanism, as up to the mark and sophisticated as it may be, is useless if the right holders themselves do not exercise their rights. And very often, such a failure on the part of creators, inventors, researchers, authors to exercise their rights comes from ignorance whereby the importance of diffusing information and increasing awareness.

Moreover, economic operators also need to know what are the implications of illegal exploitations of IP and what the law expects them to conform to. The joint MCCI-French Embassy workshop scheduled for September will hopefully fulfill this sensitisation purpose among members of the Mauritian Business Community as well as counterparts in the public sector.

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