Deadline for fast-track approval missed

Malaysia and the United States have both missed the March 31 2007 deadline to submit a bilateral Free Trade Agreement (FTA) to the US Congress which would have allowed for fast-track approval.

Malaysia and the United States commenced the first round of negotiations on the FTA from June 12 to 15 2006 in Penang. They have since had five rounds of inconclusive negotiations culminating in the missed deadline. Issues surrounding the protection of IP rights are thought to be a major stumbling block and cabinet ministers have been asked to provide their input on the most contentious matters in order for Malaysia to decide whether to proceed with the FTA talks.

The exact form of the FTA remains unclear. However, it is possible to make an educated guess as to the IP issues under discussion as the United States is known to have a standard position when negotiating bilateral FTAs.

For example, the FTA is likely to oblige Malaysia to sign up to as many international IP treaties as possible. Among the treaties that Malaysia has yet to ratify or accede to are the following:

• the World Intellectual Property Organization (WIPO) Copyright Treaty;
  
  
• the WIPO Performance and Phonograms Treaty;
  
  
• the Patent Law Treaty;
  
  
• the Hague Agreement Concerning the International Registration of Industrial Designs;
  
  
• the International Convention for the Protection of New Varieties of Plants;
  
  
• the Brussels Convention Relating to the Distribution of Programme-Carrying Satellite Signals;
  
  
• the Trademark Law Treaty;
  
  
• the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure; and
  
  
• the Madrid Protocol.

Pursuant to the FTA negotiations, Malaysia has been stepping up efforts to advance the protection of IP rights in the country particularly in the pharmaceutical, software, film and television industries. Malaysia has been deploying a variety of methods to enforce the protection of IP. These include:

• enlisting the help of two sniffer dogs, named Lucky and Flo, to detect optical discs hidden in secret compartments;
  
  
• conducting raids against pirated optical disc production facilities;
  
  
• seizing counterfeit goods and machinery used to produce such counterfeit goods;
  
  
• arresting IP infringers; and
  
  
• revoking or declining to renew licences for pirated optical disc facilities.

The FTA negotiations have also had an impact on local IP laws, with Malaysia having acceded to the Patent Cooperation Treaty which came into effect following the coming into force of the Patent (Amendment) Act on August 16 2006.

The FTA negotiations stalled during discussions in the Malaysian state of Sabah but are expected to continue shortly.

Janet Toh Yoong San, Shearn Delamore & Co, Kuala Lumpur