Pratyush Upreti

This article is a contribution to the debate on geographical indication (GI) protection for basmati rice, stressing its relevance to Nepal. After providing an overview of Nepal’s intellectual property regime, this article gives a detailed account of justifications for Nepal to oppose India’s European Union GI registration of basmati rice. The analysis, which highlights  the connection between basmati rice and Nepalese society, focuses on the social and cultural values of basmati rice in local communities. The basmati rice controversy provides an opportunity for Nepal to brand its local product in order to penetrate both national and international markets. The GI system may be an auxiliary agent in achieving these goals.

On 23 January 2017 US President Donald Trump signed an executive order withdrawing the USA from the TPP. Ever since the USA’s departure there has been speculation regarding the future of the TPP Agreement. After nine months of scepticism, the Asia-Pacific Economic Cooperation (APEC) summit gave new life to the TPP agreement by renaming it as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), limiting the scope of provisions and suspensions of some of the provisions in TPP Agreement.

In the multilateral trading system, GIs remain one of the most debated subject matters. The division and difference in fitting GIs within the policy space among the developed countries has further made the issue controversial. The developing and least-developed countries (LDCs) see GIs through the lens of sustainable development. Nepal's economy is predominantly based on agricultural products. Unfortunately, local actors are not able to market products globally. GIs may provide a unique opportunity for the farmers and small-scale producers to promote local heritage globally. Among the several forms of intellectual property, GIs may hold the greatest relevance for Nepal. Moreover, considering the geo-climatic condition, GIs may represent an excellent opportunity for Nepal. Thus, this chapter examines the concept of GIs and its development in international law and focuses the discussion on potential GIs in Nepal.

On 15 January 2020, a long-awaited trade deal between the United States (US) and China was concluded. The released draft, titled ‘Economic and Trade Agreement’, is the outcome of the Phase One trade deal between the two largest global economies. In the past few years, the US and China have had a strained relationship. However, in a turn of events in December last year, the US and China both rolled back their tariff plans and a broad outline of the Phase One trade deal was achieved. Notwithstanding ongoing proxy trade wars, the Phase One trade deal was released, consisting of eight chapters. This opinion will only address the ‘Intellectual Property’ (IP) Chapter and provide overview of the chapter and analyse some key provisions.

This paper aims to discuss the Belt and Road Initiative (BRI) from the lenses of LDCs and bring attention to some of the issues which may require profound thought. Most developing countries around the globe, especially the least developed ones, today face significant development funding gaps and a pressing need for infrastructure development. The BRI has given rise to new global geopolitical and geostrategic dynamics and fuelled intense debates around China's increasing assertiveness in the conduct of its international relations. As far as countries with financing needs are concerned, while adjusting sails according to the changing geopolitical winds to propel growth momentum might seem like a lucrative position to exploit, it is often far from easy to maintain such a delicate balance, as we will see, analysing Nepal as an example in this paper.

The relationship between intellectual property (IP) and investment is old, but the debates are new. Recent high profile cases in which intellectual property rights (IPRs) are being sought to be protected by means of international investment law and treaties have generated visible debate and discussion. In the light of the recent decision on expedited objections in Bridgestone Licensing v. Republic of Panama, this article will explore arguments put forwarded by both parties regarding the interaction between IP Licence Agreements and the definition of investment, as well as the Tribunal’s finding on the question whether an IP Licence with a revenue sharing model qualifies as an investment.

The adoption of a first-to-file system has encouraged local companies to register famous foreign marks in Nepal, which have undermined foreign companies’ business and tarnished Nepal’s imagine for inadequate protection for foreign brands. The recent decision of the Department of Industry (DOI) to recognize ‘Facebook’ as a well-known trade mark shows a changing attitude towards well-known marks in Nepal. The 2017 National IP Policy emphasizes protection of well-known trade marks and passing off
action against the unauthorized use of unregistered marks. In line with the National IP Policy, the Government is currently drafting a new ‘Industrial Property Code’, which aims to revise the current IP laws. The initial draft of the text has provisions related to well-known trade marks. This article aims to discuss the status of well-known trade marks in Nepal and offers impetus for legislative changes.

Philip Morris v. Uruguay is one of the first high-profile cases where IPRs have been litigated in investor-state dispute settlement (ISDS). The tribunal decision reaffirms the state’s sovereign right to regulate matters of public interest and held that public health measures do not amount to expropriation and violation of fair and equitable treatment under international investment law. The tribunal decision in favour of Uruguay and in general the success of tobacco plain packaging attracted countries to adopt such measures for unhealthy foods and drinks. This reflects that globally we are moving towards new IP system for health.

This article attempts to show a jurisdictional conflict, while litigating intellectual property in investor-state dispute settlement (ISDS). At the global level, the World Trade Organization (WTO) dispute settlement body has jurisdiction to deal with any matters related to intellectual property. On the contrary, ISDS exclusively settles a dispute arising from an investment. The recent International Investment Agreements reveals that ‘intellectual property’ is part of the definition of investment, giving way for an investor to challenge intellectual property issues in ISDS. This departure of forum shifting from WTO Dispute Settlement Understanding to ISDS can be seen through the lenses of res judicata and doctrine of estoppel. However, the impact of such jurisdictional conflicts awaits future claimants.

Globally, we are moving towards stronger Intellectual Property Rights. Intellectual Property Rights (IPRs) have become an integral part of the regulatory system and they are included in investment, regulations and trade policies. It is now important to understand the linkage between them. Recent practices of International Investment Agreements (IIAs) include intellectual property as a definition of investment, giving the investor an alternate forum to enforce their IP under International arbitration tribunal. International investment laws focus mostly on the rights of the investor and diverse opinions of generally accepted international principles such as fair and equitable treatment that encourage investors to litigate intellectual property through Investor-State​ Dispute Settlement (ISDS). This article will focus on the relationship between intellectual property and investment agreement in three aspects. The first part of the article will focus on how intellectual property is treated as an investment. The second part emphasizes how an investor uses an investment agreement as a tool to enforce intellectual property. The last part of the article highlights the possible impacts of litigating intellectual property under ISDS, particularly focusing on TRIPS flexibility.
Keywords investment; ISDS; TRIPS; intellectual property

Private property rights form an open-ended bundle of rights to possess, to use, to benefit from and to dispose of valuable and scarce assets (freedom of contract). Property rights establish protected and widely respected rights of ownership. They allow, in the first instance, "passive use", namely the right to exclude others from access to and possession of the assets, unless the owner consents to grant them such rights. Secondly, they encompass rights of autonomous "active use" — to combine the asset with the property of others in pursuit of expected gains and to appropriate the gains that accrue. This is done through voluntary private contracts, which are concluded only when both parties expect mutual benefits from the transaction. Copyright law confers upon the owner of the work a bundle of exclusive right in respect of the reproduction of the work and other acts which enables the owner to get financial benefits by exercising such rights. The mere use of a copyright work was not to be equated with "infringement" of that work. A copyright is infringed only if the use to which the copyrighted material is put falls within the "rights" that are made "exclusive" to the holder of the copyright by the term of the statute but the use of the copyrighted material on the grounds of "fair use" would not necessarily amount to copyright infringement. Each advance stands on building block fashioned by prior thinkers. "The world goes ahead because each of us builds on the work of our predecessors. Dwarf standing on the shoulders of giant can see further than the giant himself." Locke tells us that in the state of nature there is no positive law parceling out ownership or giving any particular person the right to command anyone else. There are, however, moral duties that constrain persons' behavior toward each other. The main focus of this article is to highlight the conflict between fair use on copyright and private property. Thus to explain further we would be dealing with the jurisprudence of private property (including copyright) and fair use of such private properties.

Indian philosophy is the ray to the world for its transformation. Our great father of the nation who taught the lesson of peace and non violence and the power of civil disobedience to the whole world was certainly not his own idea but he learnt it from the various Hindu scriptures. Indian Philosophy also taught the concept of "Universe is one family". If we want to bring change in the world then we should first change ourselves, our economic policies, and our social structure and transform the traditional knowledge to bring innovations. The equitable benefit sharing for the research done on the biodiversity includes the FDI but it is not compulsory for the foreign investor to always agree for FDI. It has other option to give benefit to the government. However, the question here is when our biodiversity and traditional knowledge of our indigenous people are being used for research, then why should we be in a compromising position. We have adopted the critical method to pen down the various issues and challenges with regards to biodiversity and FDI. This article gives you insight to readers and the environmental thinkers to appreciate the new thought to make transformation more sustainable.

Copyright encourages creativity, it provides authors and artists of all types and in all countries with a means of transacting in their works, a means by which they can earn their livelihood, and as such has an important role to play in encouraging all forms of creative endeavor and by encouraging creative endeavor copyright helps to maintain cultural diversity. This paper gives insight of overall status of Intellectual Property in Nepal, particularly focused on Copyright legislation of Nepal. Adjusting legal system of copyright is vigorously in need in the twenty-first century. A close and critical reading of the text reveals several instances of lapses and defects, which exist, to a great extent, simply because copyright has never been applied previously in Nepal. Any interference with their exclusive rights could impact harshly on deserving authors in both developed and developing countries. So, paper further deals with the rights of the authors. Lastly this article in brief explores the commonalities and differences between Nepal and India Copyright Law in particular, focuses on the latitude offered under each system for parodies of copyrighted world. Along with this, paper analyze and find lacuna of Copyright Act of Nepal with recommendation.