Intellectual Property
Table of Contents
Introduction 1
Intellectual Property Rights legislation in Pakistan 2
Copyright Laws 2
Trademarks Laws 3
Patents and Design Laws 4
International Influences 4
Enforcement of IPR Laws in Pakistan 6
Government’s Resolve to Improve Enforcement 8
Public Awareness Measures/Recommendations 9
Conclusion 9

Introduction

Intellectual property law regulates the creation, use and exploitation of mental or creative labour. The term intellectual property has been used for almost one hundred and fifty years to refer to the general area of law that encompasses copyright, patents, designs and trademarks, as well as a host of related rights. Intellectual property law creates rights in a wide and diverse range of things from novels, computer programmes, paintings, films, television broadcast, and performances, through to dress designs, pharmaceuticals, genetically modified animals and plants.

While there are a number of differences between the various forms of intellectual property, one factor that they share in common is that they establish property protection over intangible things such as ideas, inventions, signs, and information. The growing interest in intellectual property may be attributed to the fact that in the last decade or so, intellectual property law has come to be widely viewed as an area of primary economic and social importance, and it is highly politicised.

The justifications that have been given for intellectual property tend to fall into one of two general categories. First, commentators often call upon ethical and moral arguments to justify intellectual property rights, e.g. it is often said that copyright is justified because the law recognises an author’s natural or human rights over the products of their labour. Similarly, trade mark protection is justified insofar as it prevents third parties from becoming unjustly enriched by ‘reaping where they have not sown’.

Alternatively, commentators often rely upon instrumental justifications that focus on the fact that intellectual property induces or encourages desirable activities, e.g. the patent system is sometimes justified on the basis that it provides inventors with an incentive to invest in research and development of new products.


Intellectual Property Rights legislation in Pakistan

Copyright Laws

Copyright is a term that is used to describe the area of intellectual property law that regulates the creation and use that is made of a range of cultural goods such as books, songs, films, and computer programs. The intangible property protected by copyright law is distinctive in that it arises automatically and usually for the benefit of the author. Various rights are conferred on the owner of copyright, including the right to copy the work and the right to perform the work in public. The rights given to the copyright owner lasts for a considerable period of time: in many cases for seventy years after his/her death.

The following laws relating to copyrights were promulgated in this subcontinent and repealed or continued with changes, after the independence, in Pakistan, namely:
The Copyrights Act, 1911;
The Copyrights Act, 1914(III of 1914); and
The Copyright Ordinance, 1962(XXXIV of 1962)

The Copyright Ordinance, 1962 (XXXIV of 1962), is still enforced with many amendments since its promulgation in the form of an Ordinance in 1962, the most recent one being in the year 2000. The Copyright Amendment Ordinance 2000, inter alia include protection of computer programmes in the form of copyright, rental rights in respect of computer programme and cinematographic work, rights of broadcasting organisation, performers and producers of phonogram.

The different laws remained enforced, provided different protections and guarantees to the owners of the copyrights but these were amended and repealed from time to time, to make them suitable with changing requirements and awareness about the concept of the intellectual property rights as well as according to international environment.

Trademarks Laws

The purpose of the trade marks and merchandise laws is to provide protection to the manufacturers of the quality goods bearing such mark and also to secure the rights of the owners of the goods owning those Trade Marks and Merchandised Marks respectively: Generally, trade marks are those marks which are used by the owners, merchants or manufacturers to brand their goods for keeping their distinct identities in the business markets.

In Pakistan the Trade Marks Act, 1940, was a detailed law covering all necessary aspects relating to trade marks i.e. definition of trade marks, necessary conditions to be a trade mark, procedure for registration and its restrictions, effect of registration, assignment and transmission of trade marks, use of trade marks and registered users, certification trade marks, offences and their penalties in case of violations by unauthorised persons, fees for registration and appellate procedures. A full mechanism with office establishment is provided to provide easy registration of trade marks in the country.

The Trade Marks Ordinance 2001, is promulgated to amend and consolidate the existing laws relating to trade marks on the 13th April, 2001, and 10th April, 2004 was the day when this law became fully enforced vide Notification No. S.R.O. 212(I)/2004. It is an extensive and exhaustive law to meet the modern requirements of the 21st century in the changing business scenario in the global perspective. It has provisions on unfair competition, which is defined to include any act of competition contrary to honest practices in industrial or commercial matters. The Ordinance also places condition on comparative advertisement and stipulate that it should objectively compare the material and fairly chosen feature of competing goods or services. Geographical indications are also protected.

Another brief law has also been enforced in Pakistan to meet the requirements relating to such trade marks which were registered in India before 1st April 1948. It is Trade Marks (Invalidation & Summary Registration) Act, 1950. The Pakistan Penal Code, 1860, has provided effective protection of trade marks, property marks.

Patents and Design Laws

The word ‘Patent’ in the ordinary sense means something original having ingenuity and newness in its process and design. But in the legal sense it means a right granted and accepted by the State in favour of any person for protection of his creative and new invention from imitation. It is a limited monopoly that is granted in return for the disclosure of technical information. Apparently, the right to a patent seems a monopolistic one but indirectly this limited monopoly, encourages the existing patentee to further his creative pursuits to earn more by continuing his research work.

Previously, the Patents and Designs Act, 1911, remained enforced for a long time. It was the symbol of British legislation and extensively based on English principles on patents and designs It was a detailed law which had exhaustive definition of ‘designs’, ‘patent’, and ‘invention.’ It had further provided the procedure for applying for grant of patent and its opposition by the interested persons, extension of term of patent, specifications of a patent, granting of licenses and their revocations and legal proceedings on any issue relating thereto. It has also provided for registration of designs and their cancellations. A Patent Office was established for the registration of patents and designs and maintaining other ancillary records connected with and required under the law. The Patent Ordinance, 2000, has repealed the Patents and Designs Act, 1911, wherein it extends protection to processes as well as product for 20 years.

For patent registration priority shall be given to the WTO members. If someone has already patented his creation in any WTO member country, he or she is only required to show his registration to the patent office. Presently, the Patent Ordinance, 2000, the Registered Designs Ordinance, 2000, and the Registered Layout Designs of Integrated Circuits Ordinance, 2000 are promulgated to meet the requirements of the 21st century’s competitive world.

International Influences

One of the defining characteristics of intellectual property rights is that they are national or territorial in nature. That is, they do not ordinarily operate outside of the national territory where they are granted. The territorial nature of intellectual property rights has long been a problem to rights holders whose works, inventions, and brands are the subject of transactional trade. Throughout the nineteenth century, a number of countries that saw themselves as net exporters of intellectual property began to explore ways of protecting their authors, designers, inventors, and trademark owners in other jurisdiction. Initially, this was done by way of bilateral treaties. Towards the end of the nineteenth century a number of (largely European) countries entered into two multilateral arrangements: the Paris Convention for the Protection of Industrial Property of 1883 and the Berne Convention for the Protection of Literary and Artistic Works of 1886. Both the treaties adopted as their central criterion of protection the principle of ‘national treatment’.

The principle of national treatment is fundamentally a rule of non-discrimination. This provides that a member of the Paris and the Berne Union must offer the same protection to the nationals of other member states. The beauty of the principle of national treatment is that it allows countries the autonomy to develop and enforce their own laws, while meeting the demands for international protection. Effectively, national treatment is a mechanism of international protection without harmonisation.

The expansion of international arrangements for the protection of intellectual property has continued over the last century. Over this time the Paris and Berne Convention have been revised over a number of occasions, their membership has expanded, and a number of new treaties have been formulated. Most of these treaties have been developed and supervised by the World Intellectual Property Organization (WIPO), which has its headquarters in Geneva. It continues to be the main forum for the development of new intellectual property initiatives at an international level.

For a long time countries such as the USA, USSR and the People’s Republic of China remained outside the treaty arrangements, often believing that as ‘net consumers’ of intellectual property, recognition of the rights of foreigners would work against their national economic interests. While more acceptable arrangements were made in the twentieth century, the USA did not join the Berne Convention until 1988. Frustrated by the difficulties encountered under the traditional treaty arrangements, the developed countries began to employ tactics that were more aggressive than had hitherto operated at WIPO. More specifically, in the 1980s the US Government started to take advantage of its trading power to threaten trade sanctions against countries that did not offer sufficient protection to American intellectual property rights owners. Frustrated by the experience of WIPO- controlled treaty negotiations, the USA also sought to bring intellectual property protection within the General Agreement on Tariff and Trade system (GATT).

The GATT was formed after the Second World War with a view to stabilising and liberalising trade conditions on a world wide basis. In 1986, a new round of negotiations begun which included ‘Trade Related Aspects of Intellectual Property Rights’ (or TRIPS) on the agenda. When compared with the WIPO negotiations, the TRIPS agreement had a number of advantages. First, it brought intellectual property rights within a broader framework, thus making it clear to the parties that although it may not have been in their interest to accept stronger intellectual property standards, these would be offset by other advantages elsewhere. Secondly, as non-Government Organizations (NGOs) and other organizations are largely excluded from the treaty process, the GATT negotiations are conducted in a more streamlined manner between the countries. The negotiations that began in 1986 were concluded in 1993, and became part of the World Trade Organization agreement signed in Marakesh in April 1994.

The TRIPS agreement covers all the main areas of intellectual property. For the most part, it requires members of the WTO to recognise the existing standards of protection within the Berne and the Paris Conventions. It also demands substantive protection for rights neighbouring copyright, trademarks, geographical indications, designs, patents, topographies of integrated circuits, and undisclosed information. Perhaps the most significant difference between TRIPS and the existing treaties is in the detailed provisions on enforcement of intellectual property rights in Part III. Prior to TRIPS matters of procedure, remedies, and criminal sanctions had largely been left to national law.

Although TRIPS is the single most important development in international intellectual property law of the last thirty years, it does not appear to have been permanently eclipsed the role of WIPO. Indeed, not long after the Marakesh Agreement was signed, two new intellectual property treaties were formulated and agreed through WIPO: the 1996 WIPO Copyright Treaty and the 1996 WIPO Performers and Phonograms Treaty. Other WIPO initiatives will continue to play a significant role in international intellectual property law (albeit now in tandem with the WTO).

Enforcement of IPR Laws in Pakistan

Before 2005, Intellectual Property situation of Pakistan was going through phases of a constant decline. Internationally speaking Pakistan was perceived as a country with little or no protection or management of IP and there was severe criticism against Pakistan for export of pirated optical discs throughout the world.

Pakistan’s failure to protect intellectual property rights constitutes one of its main barriers to trade and investment. The World’s Bank ‘Foreign Investment Advisory Services’ considered IPR issues in Pakistan as major Investment Climate Barrier to FDI. The U.S Government had placed Pakistan on the ‘Special 301’ Watch List every year from 1989 to 2003 due to widespread piracy, especially of copyrighted materials. Continuing IPR violations caused the U.S Government in 2004 to move Pakistan from the ‘Special 301’ Watch List to the ‘Special 301’ Priority Watch List. In 2004, Pakistan was among the world’s leading exporters of pirated optical discs and apparel. Pakistan does not adequately enforce copyrights, trademarks and patents due to the lack of a functioning central IPR regulatory and enforcement body, an underdeveloped judicial system, and corruption. A popular belief now is that piracy breeds tax evasion, white collar crimes, money launderings, corruption and serious organized crimes.

Motion Pictures Association (MPA) Asia/Pacific Report, November 2005 remarked as follows:
Markups on pirated goods average over 1,150% compared with differential profits on heroin and prostitution.
Estimated criminal revenue for IPR theft US $-512 billion while drug-trafficking remained at US $ 322 billion in the year 2004.
Pakistan blamed for exporting millions of pirated optical discs to over 40 countries.

The International Intellectual Property Association Report 2006, states that ‘Pakistan suffered losses up to US$ 95.7 plus million estimated trade loss only in the financial year 2005 mainly due to copyright piracy.’

In response to the longstanding local and international criticism and the need to implement its WTO TRIPS Obligations, the Pakistani Cabinet in 2004 approved legislation creating the Pakistan Intellectual Property Rights Organization (PIPRO) to consolidate authority over copyrights, trademarks and patents in one government body. However, the legislation has not yet been approved by the parliament; and it has effectively been mothballed for many months. In addition, the Ministry of Commerce established an IPR Advisory Committee (IPRAC) with private sector and non-government organization participation. Unfortunately, IPRAC met once in January 2004 and has been dormant since that time. Although, Pakistan has enacted five major new laws relating to patents, copyrights, trademarks, industrial designs and layout designs for integrated circuits in the past few years, the legislation and enforcement mechanism remains lacking in several areas.

Book piracy, weak trade mark enforcement, lack of data protection for proprietary pharmaceutical and agricultural chemical test data, and problems with Pakistan’s pharmaceutical patent protection remain serious barriers to trade and investment. Pakistan does not have a formal system to prevent marketing approval of unauthorized copies of drugs nor does Pakistan provide safeguards to protect test and other data submitted by pharmaceuticals companies seeking marketing approval for their products. In addition, a patent ordinance that removed an 18 month processing requirement appears to have slowed the processing of pending patent applications. Therefore, the government of Pakistan has identified intellectual property as a key area for its second generation economic reforms.



As a member of the WTO, Pakistan is committed to fulfill its TRIPS obligations. Pakistan is also a member of the Berne Convention on copyrights and the World Intellectual Property Rights Organization (WIPO). There are a number steps that need to be taken on the TRIPS issue:
Documentation of Geographical Indication, as well as negotiation with Iran, Turkey, Central Asian Republics, India, Bangladesh and other SAARC countries on mutual recognition and protection of Geographical Indications need to be undertaken. In addition a system, standards and procedures have to be put in place for utilizing the draft law and protecting the existing geographical indications.
We may also need to document and list all sources of Traditional Knowledge, folklore, and arts/craft and prepare a data bank so that effective protection is provided against any unauthorized use.
Pakistan may also need to improve the enforcement of IP Laws in view of the allegations and reservations raised by our trading partners such as USA and EU on our IP enforcement regime. An enforcement action plan needs to be deviced in consultation with the law and enforcement agencies to take appropriate measures in order to improve IPR enforcement.

Government’s Resolve to Improve Enforcement

On 8th April 2005, the Government of Pakistan took evasive action to redress these issues of the International Community by taking the following three pronged parallel decisions:
Formation of Intellectual Property Organization of Pakistan (IPO) for enforcement coordination and better management of IP in Pakistan;
Federal Investigation Agency (FIA) was empowered to eliminate piracy through addition of Copyright Ordinance, 1962 in the schedule of Federal Investigation Agency thus authorizing the FIA to investigate Copyright related offences in Pakistan; and
Activation of Pakistan Customs to cut off and restrain import and export of pirated goods including optical discs to and from Pakistan.

After the establishment of IPO, there have been raids on six manufacturing plants in Karachi, making pirated DVDs/CDs, in which 1.5 million fake /pirated CDs and DVDs have been seized. There has been registration of 46 cases and arrest of about 90 individuals. There have even been raids on book stores recently, in which 7,653 pirated books have been recovered.

Nevertheless, there are still many challenges that need to be overcome. Relevant IPR laws are not on FIA schedule, and the department still lacks forensic expertise and equipment, coupled with lack of institutionalized arrangements for liaison with foreign forensic experts. There are inadequate funds for investigation and insufficient manpower and logistical support. Specialized prosecutors and corporate lawyers are not readily available, and ignorance of the laws and criminality among public and traders make matters more complicated.

Public Awareness Measures/Recommendations

There are a number of public awareness measures that can be taken including speeches at various official and private forums, seminars, workshops and with the academia on current IPR enforcement issues. Interviews could be held on TV Channels highlighting current issues and future aspects of the IPR law enforcement in Pakistan.

The laws on IPR must be strengthened, and the relevant IPR laws must be placed on FIA schedule, such as Trade Marks. The 2008 action plan, should include provisions to strengthen IPR enforcement at Pakistan’s borders, and additional steps must be taken to address the import and export of illegal goods. The industry and IPO must share information with FIA, and laws must be legislated on Internet Piracy.

Conclusion

Although, conventional wisdom says that pirated goods are cheap and affordable, it is a misnomer as it seriously impedes creativity, innovation and growth of domestic industry.