Week Five

My research this week focused on the copyright legal framework as it exists in Cambodia’s national laws. While there are international intellectual property treaties that outline rights for authors and users, copyright is dependent on the national laws of each individual country. The Constitution of the Royal Kingdom of Cambodia protects the freedom of expression (Art. 41) and legal private ownership (Art. 44). However, the Constitution makes no mention of intellectual property rights; could this right be included in Article 44?

Since this part of my research is more statute intensive, I have taken the liberty of conducting some statutory interpretation which I learned last semester thanks to my Constitutional Law class and Professor Meese. Statutory interpretation refers to the tools and techniques that are used to analyze and interpret the meanings of statutes.  While the “plain meaning” of the words should be given the most weight, context can also be used to decipher meaning. In Cambodia, I cannot investigate the context as in-depth as I would like because I do not have access to committee hearings, legislative history, or public statements made by lawmakers. Therefore, I am dependent on canons of construction which are the common rules used to determine legislative intent and construe legal documents. The statute in question is Article 44 of the Constitution which states, “All persons, individually or collectively, shall have the right to ownership. Only Khmer legal entities and citizens of Khmer nationality shall the right to own land. Legal private ownership shall be protected by the law.” The statute mentions private ownership and land ownership, but it does not mention intellectual property ownership.

One prominent canon of construction is the Latin phrase, “expressio unius est exclusio alterius,” which has been interpreted to mean, “where certain terms have been explicitly set forth in a statute, that statute may be interpreted not to apply to terms that have been excluded from the statute.” (Katharine Clark & Matthew Connolly, A Guide to Reading, Interpreting, and Applying Statutes, Geo. L. Ctr. 1 (2006)). Article 44 states that all persons shall have the right of legal private ownership; however, it qualifies that right by specifying that only Khmer citizens may enjoy the right of private land ownership. Applying the canon of construction “expressio unius est exclusio alterius” to the Article, all persons must necessarily enjoy the right to private ownership of intellectual property because the only exception to the Article is private land ownership. Intellectual property is a subset of property that is different from physical land property. Because intellectual property is not enumerated in the exception to the right of private legal ownership, private intellectual property ownership is available to all persons in Cambodia - Khmer citizens and foreigners alike. The legislature would have included intellectual property with land property in the exception if it wanted to reserve that right to Khmer citizens.

While ODC is a local NGO and its staff is composed of Khmer citizens, ODC partners with foreign entities that contribute valuable technical assistance and knowledge to ODC. The fact that private intellectual property ownership is available to non-Khmer helps ODC attract foreign entities who will enjoy the same protections of private ownership.

The Cambodia copyright scheme includes the Law on Copyrights and Related Rights, Press Law, National Archive Law, and the Law on Associations and Non-Governmental Organizations. All of these authorities outline specific rights and responsibilities for copyright and the freedom of expression. Unfortunately, many of these rights are undermined by vague provisions. The legislature may promulgate vague laws because it cannot think of every possible iteration of a scenario; and it relies on the judiciary to use its judgement to resolve controversies. For example, a statute may read: “No vehicles are permitted in the park.” What is a vehicle? Does that mean a powered mobility scooter is not allowed in the park? Does that mean that a veterans group cannot display a decommissioned WW2 Army Jeep in the park? The statue is vague because the legislature cannot anticipate every possible scenario and thus it cannot enumerate all the exceptions to the law.

However, vague laws can also have a sinister intent which I learned in my Criminal Law class with Professor Gershowitz. Vague laws are sometimes written to give broad discretion to law enforcement officials (vagrancy laws). In the United States, a court may find a law void for vagueness if the law does not specify what conduct is punishable. However, this rarely happens in Cambodia. Article 12 of the Press Law grants the government the authority to ban the publishing of materials that may affect “political stability.” However, the law does not have a definition section with the meaning of “political stability.” Any story written on sensitive issues like land concessions could potentially affect political stability and result in protests. ODC’s right to freedom of expression and copyrights are undermined by vague laws which are susceptible to distorted interpretation.