A review of current headlines regarding Afghanistan clearly indicates that significant roadblocks remain in the ways of that country's quest towards redevelopment. Despite concerted efforts, serious security concerns continue to plague Afghanistan. Furthermore, there needs to be improvement in the speed with which foreign investment flows into Afghanistan, as well as the amount of such foreign investment. While the military and other security experts continue to work towards improving the physical security and stability of Afghanistan, a group of attorneys and other legal experts are currently working to improve the commercial legal environment of Afghanistan, with the hope that doing so will help to increase foreign investment in the country.
The Afghanistan Transitional Commercial Law Project ("Project") is a joint project of the Center for International Management Education ("CIME") and the American Bar Association- Asia Law Initiative. The Project is a component of the Private Sector Development Task Force for Afghanistan, which is being coordinated through the Afghan Embassy in Washington, D.C. The goal of this initiative is to contribute towards encouraging foreign direct investment in Afghanistan by assisting Afghanistan in developing its commercial laws. It is anticipated that the end result of this project will be the implementation of a new "code of commerce" covering the following areas: Law on Domestic and Foreign Private Investment; Contract; Real Property; Personal Property; Intellectual Property; Commercial; Banking; Customs/Trade; Taxation; Corporate; Partnership; Agency; Registration of Business Entities; Bankruptcy; Labor/Employment; Antitrust and Unfair Business Practices; Environmental/Natural Resources; Law of State Enterprises; and Arbitration. The purpose of this article is to provide an overview of the progress of the Project in the area of Intellectual Property.
The Functions and Duties of the IP-Tech Working Group
The Intellectual Property and Technology Working Group of the Project (the "IP Working Group") is focused on assisting Afghanistan in developing and implementing legislation concerning intellectual property and technology. Specifically, the initial tasks of this working group were to develop new copyright and patent legislation and revise Afghanistan's existing trademark law. Since the assignment of initial tasks, the mandate of the IP Working Group has been broadened further to include the development of new e-commerce and electronic signatures legislation as well as the provision of assistance on issues related to the protection of Afghanistan's cultural heritage by, among other things, assisting Afghanistan in its efforts to recover certain cultural objects that have been plundered.
Procedures
While copyright, trademarks and patent law are considerably different, the IP Working Group developed and implemented a common strategy to address each of these areas. First, the IP Working Group spent considerable time researching and reviewing the copyright, patent and trademark legislation of other nations that enjoyed certain similarities with Afghanistan. The goal of this stage was to identity existing legislation that could serve as a useful model for Afghanistan. Once such model legislation was identified, the recommendations of the IP Working Group were presented to key officials of the Afghanistan government (the "Government Officials") for their consideration.
Upon receipt of the government's approval of the group's recommendations regarding the appropriate model legislation, members of the IP Working Group then began to propose revisions to Afghanistan's trademark legislation and to draft new copyright and patent legislation for the country. In all stages of the project, the IP Working Group remained highly cognizant of the need to maintain the continued involvement of the Afghanistan government. The continued involvement of the Afghanistan government was fostered through a number of working sessions as well as regular communication with the Government Officials.
At this stage in the Project, the IP Working Group has completed its initial redraft of Afghanistan's existing trademark law and has also developed initial discussion drafts of new patent and copyright laws for consideration by the Government Officials. Over the course of the next few months, the IP Working Group will receive and process feedback from the Government Officials and make appropriate changes to the draft legislation so as to ensure that the final legislation is most appropriate for Afghanistan's needs.
Training and Education
Because the effectiveness of intellectual property laws is closely tied to the degree to which such laws are administered and enforced, once the draft legislation is finalized, we will be working with the government of Afghanistan to establish procedures for administering and enforcing intellectual property rights in Afghanistan. We also expect to advise the government on the establishment of administrative offices and to provide training to the country's new intellectual property professionals. Afghanistan has not had a patent or copyright system in the past, and its dated trademark legislation has not been administered in a consistent fashion. The country has an intelligent and enthusiastic work force, but proper training on the administration and enforcement of intellectual property rights is desperately needed.
While the IP Working Group is currently focused on finalizing its redraft of Afghanistan's trademark law and on developing new copyright and patent laws for Afghanistan, once the laws are finalized and accepted by the Government Officials, the focus of the efforts of the IP Working Group will shift towards developing and implementing training programs to educate Afghan intellectual property professionals, as well as the local populace, about the country's new intellectual property regime.
Although the IP Working Group has endeavored to ensure that the new intellectual property laws are extremely clear, even with clear and concise legislation, there will be a need to ensure that administrative and judicial personnel receive adequate training in order to be equipped to implement and enforce the applicable intellectual property laws on a daily basis. It is envisioned that members of the IP Working Group will coordinate with members of various international organization and the Government Officials to organize the training of the local Afghans who will be responsible for the administration and enforcement of Afghanistan's new system of intellectual property protection. The hope is that by adopting a "train the trainer" program and providing a large group of both administrative personnel, managers and judicial authorities with comprehensive initial training, the local Afghans will be then equipped to train future generations of administrative personnel.
While the importance of training the individuals who will be responsible for the implementation and enforcement of Afghanistan's intellectual property system is undeniable, it will be equally important to educate the Afghan people of their new rights. The population of Afghanistan has long been involved in creating various works including music, poetry and textile arts. It will be essential to demonstrate to the local community how the new intellectual property regime can be used to protect their rights. In the same way, it will be necessary to show that under the new regime certain uses of intellectual property will no longer be permissible without the authorization of the relevant rights holder.
Conclusions
It is envisioned that the IP Working Group will help prospective investors to feel more secure that their intellectual property rights will be protected in Afghanistan. At the same time, the new intellectual property regime may demonstrate to members of the local populace that their intellectual property rights will be protected and thereby help to encourage domestic innovation and creation.
It is anticipated that this Project will play an important role of efforts to rebuild Afghanistan. While Afghanistan continues to face significant challenges, a steady influx of foreign direct investment is likely to be of substantial assistance to the country's future. Through this Project and the efforts to assist Afghanistan to develop a new "code of commerce", it is envisioned that prospective investors with have more confidence that Afghanistan has an effective and reliable legal system of commercial law.