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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

copyright owners “to issue copies of the work to the public” via the language of Article
18(1)(b) of the Emergency (Copyright) Order. Article 20 further clarifies that
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“(1) [t]he issue to the public of copies of a work is an act restricted by the copyright”
and that “(2) [r]eferences . . . to the issue to the public of copies of a work are to the act

of putting into circulation copies not previously put into circulation, whether in Brunei
Darussalam or elsewhere.” However, the provision specifies this does not apply to
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the following “(a) any subsequent distribution, sale, hire or loan of those copies; or

(b) any subsequent importation of those copies.” By reading the language of
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the provisions, an argument that parallel imports fall within the exception to

the application of Article 18 as per the wording of Article 20(2)(a) and (b) can be made.
The ultimate position on whether Brunei adopts a system of international or national
copyright exhaustion remains in the hands of the judiciary and legislative authority.

To date, there is no precedent in Brunei.

IV. Should International Exhaustion be the Way Forward

for ASEAN? The Need and the Costs of Uniformity

and How One Size May Not Fit All

As I mentioned in the Introduction, the above survey indicates inconsistencies
continue to exist for trademark, patent, and copyright exhaustion in different ASEAN

Members. Divergences further exist in domestic policies on exhaustion with respect to
specific rights—i.e., differences in the treatment of trademark, patent, and copyright
exhaustion—with the same ASEAN Members. For example, Cambodia, Lao PDR,

Malaysia, and others apply different policies on exhaustions based on the type of right
at issue. These differences are relevant as commercial goods are often protected under
more than one type of IP rights, and thus inconsistent domestic IP exhaustion policies

may result in IP owners leveraging one type of rights to block the import of genuine

114 Constitution of Brunei Darussalam, Order under § 83(3), Emergency (Copyright) Order (1999) (Brunei).
115 Id. at art. 20(1).
116 Id.

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