Copyright Protection in Cambodia
Background for the European SMEs
The Association of Southeast Asian Nations (ASEAN) as a group is EU's third largest trading partner after the United States and China. ASEAN countries are at different economic and political development stage, and among them, Cambodia has recently shown steady growth rates, while its economy grew at 7.1% in 2014 and 7% in 2015. The garment sector, together with construction and services, are the main drivers of its economy. Growth is expected to remain strong in 2016, as recovering internal demand and dynamic garment exports offset stagnation in agriculture and softer growth in tourism. Cambodia is an emerging market with a GDP of $16.4 billion, which has the potential of becoming a trading and logistics hub for the Indonesia region. Its 15.3 million strong population is mainly occupied in the agricultural sector. However, garment industry, construction and tourism are among major industries in Cambodia, with the garment industry accounting for 90% of Cambodia’s exports.
EU exports to Cambodia are dominated by machinery and appliances, agricultural products, chemical products and transport equipment while Cambodia’s exports to the EU are dominated by garment industry, accounting for 72% of Cambodia’s exports.
Copyright in Cambodia
Copyright is an intellectual property right that protects creations of the mind. These rights, generally, include: copying; publishing; translating; adapting and altering; distributing; etc. and are granted automatically following the creation of the work.
The Cambodian Copyright Law grants the exclusive legal right to authors and other right holders to exploit their “works, production of cultural products, performances, phonograms, and transmissions of broadcasting organizations”.
Even though, copyright normally enjoys automatic protection in most South-East Asian countries from the moment of its creation, the European SMEs should keep in mind that this is not always the case in Cambodia. Foreign works do not enjoy automatic protection in Cambodia, even though Cambodia is a member of the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). As not all Cambodia’s national laws are yet in accordance to the TRIPS regulations, Cambodia currently does not grant similar protection to foreign works as it does for Cambodian works. Cambodia has to comply with the TRIPS agreement by 2021.
Restrictions to Copyright in Cambodia
Until the TRIPS obligations are met, foreign rights holders should understand that certain rights are not protected in Cambodia unless they meet the following restrictive conditions contained in Article 3 of Cambodia’s Law on Copyright and Related Rights:
- Broadcasts are only protected if their organizations have Cambodian headquarters, or they were transmitted from transmitters located in Cambodia.
- Phonograms are only protected if their producers are Cambodian nationals, or if the phonograms were first fixed or first published in Cambodia.
- Performance works are only protected if: (a) the performers are Cambodian nationals; (b) the performances took place in Cambodia or are incorporated in phonograms that are protected under the Copyright Law; or (c) they have not been fixed in a phonogram but are included in broadcasts qualifying for protection under the Copyright Law.
- Most other foreign works are not protected unless: (a) they were produced by a foreigner who has a habitual residence in Cambodia (including a legal entity that was established under Cambodian Law and has its headquarters in Cambodia); or (b) the work was first published in Cambodia, or it was first published abroad but then published in Cambodia within 30 days after the first communication to the public.
Due to these restrictions, in practice, very few foreign rights holders currently receive automatic protection under Cambodia’s Copyright Law.
What Rights does Copyright Grant?
The author of a work enjoys the exclusive right to that work, covering both the moral and economic rights to the work, which is enforceable against all persons,
The moral rights include the exclusive right for the copyright owner (author) to decide on the manner and timing of the publication of the work; whether his or her name shall be attached to the work; and the right to prevent destruction or modification of the work. Moral rights are perpetual and non-transferable. However, the moral right will, after the copyright owner’s death, transfer to the copyright owner’s heirs.
The economic rights include the exclusive right for the copyright owner to exploit his or her work through authorization of reproduction, communication to the public, and creation of derivative works. The economic rights are granted for the lifetime of the author plus another fifty years after the author’s death.
The Copyright Law of Cambodia also provides a number of limitations to the copyright owner’s moral and economic rights, such as making copies of, or importing works, for private purposes; presenting a work to a close circle of people; and using a work for educational purposes.
The law presumes that the copyright to a work belongs to the natural person or persons in whose name the work is created and disclosed, unless there is evidence to the contrary. In case the work has been created by an employee, within the scope of the employment, the economic rights will transfer to the employer, unless otherwise agreed in a contract.
European SMEs whose works are eligible for copyright protection under the Cambodian Copyright Law should keep in mind that it is recommended to voluntarily register copyright with the Ministry of Culture and Fine Arts. The Ministry of Culture and Fine Arts will then issue a Certificate of Registration, which can serve as evidence in future administrative or judicial proceedings and can therefore prove extremely useful.
An application for registration can be filed in English and in Khmer and must contain the following:
- A record of the author’s real name
- The date when the work was first published
- The date when the work was created; and a record of the author’s right
The registration of copyright costs between 4-12 EUR depending on the type of works for which the protection is sought. Foreign copyright holders must be represented by an agent, furnished with the Power of Attorney, to complete the registration process.
Copyright owners have three main routes of enforcement in Cambodia: administrative actions, civil litigation and criminal prosecution. In many cases, however, private mediation via legal professionals is more effective and should be considered as a viable option.
Administrative actions can be initiated at the Department of Intellectual Property Rights (DIPR). In an administrative proceeding, the DIPR conducts one or more hearings and serves as a mediator between the parties. Without having binding power, the DIPR has an excellent track record in convincing infringers to cease their unlawful activities.
A copyright owner whose rights have been violated may file a petition to the court requiring that the defendant stops the infringement and pays compensation to the copyright owner in the form of damages. The copyright owner may in the petition, also seek the return of the disputed equipment or materials, as well as the return of any benefits that were gained from the infringement. The court may also order confiscation or destruction of equipment or materials being produced or used and it has the authority to seize all necessary evidence, such as illegal copies. However, the copyright owner is responsible for any injury caused to the defendant if his/her petition is proved to be unfounded by the court.
A copyright owner may also seek criminal prosecution of the infringers. Copyright infringement is punishable by imprisonment or fines or both, with a double penalty for repeat offenders. The punishment depends on the type of infringement: Infringement of production or reproduction is punishable by six to twelve months imprisonment and/or by a fine of approximately EUR 930 to EUR 4,650; In the case of importation or exportation of infringing copies, the defendant may be punished by between six to twelve months of imprisonment and/or by a fine of approximately EUR 370 to EUR 1,860. As with the case of civil infringement of copyright, the court may order confiscation and/or destruction of infringing copies and the revenue gained through the act of infringement.
Protecting Copyright through Customs
The copyright owner may petition to the customs to retain illegal copies at the borders. The customs authority will suspend clearance of the goods for a defined period and this period may not be extended for more than 10 working days. Moreover, if the applicant wishes to destroy the counterfeit goods, civil court proceedings must be initiated within ten (10) working days of suspension of the goods because the customs authorities may only destroy counterfeit goods with a court’s approval. The customs authority will release the goods if the applicant does not initiate court proceedings. The European SMEs should keep in mind that border control measures are only available in clear-cut cases of infringement.
The South-East Asia IPR SME Helpdesk supports small and medium sized enterprises (SMEs) from European Union (EU) member states to protect and enforce their Intellectual Property Rights (IPR) in or relating to South-East Asian countries, through the provision of free information and services. The Helpdesk provides jargon-free, first-line, confidential advice on intellectual property and related issues, along with training events, materials and online resources. Individual SMEs and SME intermediaries can submit their IPR queries via email (firstname.lastname@example.org) and gain access to a panel of experts, in order to receive free and confidential first-line advice within 3 working days.
The South-East Asia IPR SME Helpdesk is co-funded by the European Union.
To learn more about the South-East Asia IPR SME Helpdesk and any aspect of intellectual property rights in South-East Asia, please visit our online portal at http://www.ipr-hub.eu/.