Pakistan’s Survival in an Intellectual Property Based Global Economy
Authored by
Syeda Umaira Iqbal Raza
ABSTRACT
Intellectual property rights (IPR) law has been on the
backburner in Pakistan for over a decade now and negligible efforts are being
made to improve this sad state of affairs. Arguments against the former
statement would mostly advocate that the efforts made in this field in the past
decade should be appreciated in light of the economic disadvantages that
Pakistan has over other countries. Whereas this may have been the case a
century ago when economic disadvantage was indeed the undeniable fate of
countries that either lacked natural resources or were far behind in the race
of industrial and economic advancement, the same does not hold ground in the
field of IPR. The field of IPR is wholly dependent on labour of the brow and
human skill. The generation of protectable intellectual property does not
require capital as much as it requires awareness and encouragement of
protecting ideas under the law and implementing IPR law. In today’s day and age
where IPR have become the table turner in company wars, any country that fails
to take advantage of intellectual property based financial surges has no excuse
to hide behind other than lack of initiative and short-sightedness.
The international economy is rapidly being taken over
by digital markets. At the core this change lie IPR and the global monopoly
facilitated by them. While the leading economies of the world are well equipped
to bag the fruits of this overhaul of the global markets, Pakistan has neither
the gear nor the initiative to benefit from these changing dynamics. It was
fair to expect Pakistan to lag behind economically at a time when natural
resources such as oil etc. determined a country’s position in the global race of
economic dominance. However, at a time when the collective intellectual
capacity of a county can prove pivotal to its economic progression, every
nation is presented with a chance to change its place in the world financially.
Pakistan must act, and soon.
This article emphasizes the crucial importance of strengthening
the IPR protection laws in Pakistan and putting in place efficient enforcement measures
and infrastructure in light thereof.
INTRODUCTION
The future of the world’s economy lies in intellectual
property – Pakistan however lacks the tools to benefit, defend or even thrive
in such future. Ever since the emergence of a digital virtual world of
services, economies of several developed countries have soared on the basis
intellectual property rights (IPR). Owing to the monetary value of these
intangible assets, the law of IPR has been developed internationally so as to
create a legal monopoly for the first owners of these IPR. Countries with weak IPR
protection laws or enforcement mechanisms are therefore willfully taking a
back-seat in this overhaul of the global economy. According to Braga, Fink and
Sepulveda[i],
developing countries can enhance the benefits of recent policy changes around
the world with regard to IPR by establishing an effective institutional
framework for their protection and enforcement - one that facilitates access of
local entrepreneurs to the government facilitated IPR registration systems and
that adopts a pro-competitive approach to intellectual property.
Less than a century ago, the economic worth of the
richest men in the world was gauged by the tangible property they owned or
inherited or the oil wells they discovered, today the richest men in the world
hold interests in the world of virtual valuables, i.e., IPR. According to the
Forbes’ “Real-time Billionaires List” of 2020[ii],
the richest man in the world is Jeff Bezos while the second richest is Bill
Gates. The source of the wealth of both these men is from companies that
generate income from digitalized services at the heart of which lie the IPR
owned by them. The U.S. Department of Commerce reported in 2016 that
IP-intensive industries supported 45.5 million jobs and contributed $6.6
trillion in added value, equivalent to 38.2 percent of the GDP of the USA[iii].
An article in the Harvard Law Review, January–February 2000 Issue, praised CEOs
such as Richard Thompson for viewing IPR based assets of their company as
business tools instead of just legal instruments. It praises their
long-sightedness in recognizing the financial cushion gained by companies such
as IBM through patent royalties generating free cash-flow of up to 1 billion US
Dollars per year. This was back in the year 2000. Twenty years later, the
Legislature, business leaders and even judiciary of Pakistan struggle to
acknowledge how inadequate protectionist measures and laws for IPR are
hampering Pakistan’s potential economic progression.
Although the above reality is now common knowledge, it
seems that certain countries such as Pakistan are content at being willful
spectators while the rest of the world profits from these changing dynamics of
the international economy. Despite rapid digital transformation of the global
consumer markets, not only are the citizens of Pakistan unaware of the means of
protecting their intangible assets, they also fail to comprehend what these
assets are. Hence Pakistan as a country is looking at a future where it may
lose on two fronts: (1) failing to help its creative minds to identify and then
protect their IPRS and (2) putting in place an enforcement structure which
provides for and ensures protection of these rights. A snowball effect of this
lack of security for IPR is that foreign investors see little or no benefit in
investing in Pakistan-based intellectual property related product or services. The
inevitable result of these factors adversely affecting the value of
Pakistan-based IPR is that the only IPR that Pakistani citizens can hold on to
are those no foreign entity is interested in infringing upon. If explained in
lay-man terms, if dominance in he global economy through building IP assets is
a game and various countries are seen as players, Pakistan is simply forfeiting
its right to win by failing to protect the IPR of its citizens.
In order for Pakistan’s GDP to see an upward surge in
these circumstances, it must join the world in encouraging young minds to
create income generating intangible assets/IPR, ensuring adequate protection and
enforcement of such rights and encouraging foreign investors to invest in
these. In the above terms, the government of Pakistan must be as protective of
the IPR owned by its citizens and Pakistan based entities as it is of the
country’s natural resources, land and exports. It must also ensure that its
laws not only protect the IPR of its citizens within the territory of Pakistan,
but also enable enforcement of these rights in other countries (Members States
obligated under international treaties to recognize IPR registered in Pakistan).This
change in priorities must be reflected in the IPR protection laws in Pakistan
and more importantly in the stringency in enforcement of these laws.
ENFORCEMENT OF IPR LAW IN PAKISTAN
While in Pakistan excessive protectionist measures
such as building walls or hiring guards for protecting tangible property is
considered wise, employing the same measure of protection for IPR is considered
unnecessary. The laws in place for the protection of intellectual property such
as copyrights, trademarks, patents and the like are by no means sufficient to
provide concrete investor worthy rights in the intangible assets protected
under them. Moreover, the structure in place to ensure the enforcement and
protection of these rights is overwhelmingly steered by bureaucrats who not
only lack sufficient knowledge of IPR, but also fail to realize the positive
impact these may have on the country’s economy. Although the recent
appointments in key positions of the Intellectual Property Organization of
Pakistan (IPO) has led to a shift from the traditional turtle-paced work ethic at
the organization, the average day at the IPO is eventless and is spent circulating
documents which protect only the big players. Intellectual Property Tribunals
too are seen handing down judgments in favor of conglomerate giants who can
afford better lawyers, since expertise in IPR leads to lack of believability that
smaller entities may develop commercially-desirable IP assets. Indeed, big
companies require protection of their IPR as well, however, the intangible
assets that change the economic reality of a country are rarely borne out of
the offices of huge companies. They emerge from the dorm rooms of students
(Facebook) and garage-based enterprises (Google). Therefore, the law of IPR in
Pakistan must ensure that the intangible assets generated from individual minds
- whether owned by single players or by multi-national companies - are afforded
the same amount of protection. The proceeding paragraphs endeavor to provide
a holistic review of the IPR protection
laws in place in Pakistan and provide analysis of the extent to which these are
successful in serving the above listed purposes:
I.
International IPR-related Obligations of Pakistan
The IPR related international obligations Pakistan should serve as a benchmark for the
implementation of local IPR enforcement laws. We must also, bring our
enforcement mechanisms and infrastructure at par with other countries that are signatory
to the IPR related treaties that bind Pakistan. Since Pakistan stands close to
last in ranking of the world’s most advanced nations in terms of IPR
enforcement. International obligations under IPR-related treaties ensure that
Pakistan provides the basic standards of IPR enforcement and protection that
must be provided under the law within its territorial jurisdiction. The most
comprehensive international treaty on IPR which is binding on Pakistan is the Agreement
on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”) which
came into effect on January 1995[iv].
The preamble of TRIPS Agreement acknowledges IPR as
private rights, the worldwide and uniform protection and enforcement of which
is crucial to avoid major roadblocks in international trade. A key takeaway
from this acknowledgment is that these private rights (IPR) had by the year
1955 become fundamental tools for countries in the realm of international trade.
While the IPR enforcement laws in Pakistan are largely complacent with the
TRIPS Agreement, the issue lies in the implementation of the principles,
policies and rules. The delays and uncertainty in IPR civil and criminal suit
before the IPR Tribunals and Superior Courts, the inefficiency of the enforcement
agencies in remedying IPR infringements as well as the lack of awareness and
training IPO’s officials show a trend of favoring only conglomerate giants. Therefore,
no miracles can be reasonably expected in a David versus Goliath battle in IP
infringement suits or complaints.
II.
IPR Laws and Federal Government Induced Incentive
Post the 18th Amendment the Constitution of
Pakistan, 1973 (the “Constitution”), IPR have become a
Federal subject appearing at serial no.25 of the Federal Legislative List[v].
By virtue of this allocation, the Federal Government has reserved the right to
legislate on the subject of IPR. The fact that IPR appear so high up on the
Federal Legislative list is a comforting sight for those who remain
apprehensive about the future of IPR in Pakistan. However, IPR must also
receive the same level of priority by the Federal Government in terms of it
reevaluating and improving the present IPR enforcement policies in the country.
Given that Pakistan appears at the near bottom of US Chambers of Commerce’s IP Index[vi]
of 53 countries, the Federal Government may also need to reexamine the IPR laws
in place in terms of their efficacy in Pakistan’s cultural and economic setting.
The foremost task for the Federal Government in this regard should be the introduction
of deterrents against potential corruption at all levels of the IPR enforcement
mechanism in place under present laws. The IP Index points out that IPR
enforcement is arbitrary and non-deterrent due to the discrepancy in the IPR in
law and those enforced in practice. It suggests, inter alia, that tax incentives be introduced by the Federal
Government for creation of IP assets as well as incorporating in Government
policy to treat IP as an economic asset. Implementing these “behavioral”
changes at the Federal Government level may help accelerate the country’s
efforts to strengthen IPR protection and employing IPR as a substantial economic
asset.
The proceeding paragraphs provide a brief overview of
the IPR related laws have are currently in place in Pakistan:
1. The
Intellectual Property Organization of Pakistan Act, 2012 (the “IPO
Act”)
The IPO Act marks the establishment of the Intellectual
Property Organization (the “IPO”) of Pakistan under Section 3
thereof. By virtue of the provisions of this Act, the IPO is a wholly
autonomous body based in Islamabad, constituting largely of Federal Government.
The spearheading positions of the Chairman IPO, is required under the IPO Act
to be an individual appointed with due regard to their experience in IPR and
related fields. However, the foundations of the IPO remain weak owing to the
lack of relevant qualifications and experience of the Government officers that
run the IPO. A Policy Board with a majority of public sector members, is
constituted under Section 4 of the IPO Act. This Policy Board is responsible
for setting of objectives and policy guidelines of the IPO, which in effect
gives it power to steer the IPO at its pleasure. It is an undisputed fact that
the realm of IPR is unfamiliar territory for Government officials. Therefore,
it is not difficult to point to the hole in the boat when analyzing as to why
the IPO has been unable to generate a substantial amount of IP assets in the
past decade. It is imperative that the constitution of the board under the IPO
Act be amended in order to introduce a simple majority of members from the
private sector, persons who have made their mark in the field of IT or have
sufficient experience in IPR. While it is indeed unfair to cast any shade on
the efforts of the IPO in creating IPR awareness and improving enforcement
mechanisms, efforts made by the IPO in the past eight years have been negligible
considering the magnitude and nature of its responsibility in building up IPR
as an economic asset. Moreover, when compared to the output of similar
institutions established in other countries, there is a glaring gap in the
deliverables desired and those received. Another loophole in the IPO Act lies
in the fact that the Presiding Officers of the Tribunals require no prior
experience or qualification in IPR. There are occasional seminars and courses
conducted for the mutual benefit of the Judiciary as a whole to increase
awareness amongst them with regard to IPR, however, these are not a
prerequisite for the appointment of Presiding Officers. Thus, the fate of an
IPR trial lies in the hands of individuals who are inadequately equipped to
adjudicate on for example, the sensitives of a complicated patent or the economic
implications of a losing a commercially-desirable copyright to a foreign entity.
At present as per the IPO Act, Presiding Officers are Judges or lawyers who are
required to be complacent to the frustrating delays in courts. This proves
disastrous for an IPR trial where owing to the digital and hence global nature
of IPR, each passing day means a disproportionate amount of illegally acquired
profit for the infringer, and an irreparable loss for the IPR right holder
whose ownership rights are already limited to a few decades.
2. The Copyright Ordinance, 1962 (the “Copyrights
Ordinance”)[vii];
In
accordance with Article 42 and Article 61 of the TRIPS Agreement respectively,
the Copyrights Ordinance provides for both civil and criminal actions against
copyright infringement, depending on the nature of the infringement[viii].
Criminal
infringement of copyrights under the Copyrights Ordinance is for lack of better
word, a mockery in practice[ix].
This is primarily because until the Supreme Court’s recent judgment by the
former Chief Justice Asif Saeed Khosa (Oxford
University Press, Peshawar v. Inayat-ur-Rehman & others, Criminal
Appeal 233 of 2019 (Not Reported)), the Judiciary was unable to conclusively
determine whether the Federal Investigation Agency (the “FIA”) or the Provincial
Police had the jurisdiction to investigate a criminal copyright infringement complaint. Although after the three-member
Supreme Court Judgment the FIA’s jurisdiction has finally been established, it
is disappointing that it took more than 9 years post the 18th
Amendment to determine that a criminal investigation of a matter in the Federal
Legislative List is clearly within the FIA’s jurisdiction. What is even more
disturbing is that up until the Supreme Court Judgment in 2019, the Judiciary
has given contrasting judgments on the jurisdiction of FIA in copyright theft
matters, mostly placing heavy reliance on pre-18th Amendment
judgments where FIA has been held to have concurrent jurisdiction with the
Police. Whereas post the 18th Amendment, as conclusively decided by
the Supreme Court in Sui Southern Gas
Co. v. Federation of Pakistan 2018 SCMR 802, the investigation of
criminal infringement of copyright - a Federal subject - falls under the
exclusive jurisdiction of a Federal Investigation authority (the FIA) and not
the Police which is a Provincial subject. One of the most damaging judgments to
the development of copyright criminal theft was a judgment of the Islamabad High
Court[x] where
it was held the only complainant for a copyright theft can be the IPO and any
aggrieved person may only hope to pursue a criminal remedy if the IPO (an
institution with no criminal investigation skilled human resource or equipment)
makes a prior determination of a possible offense[xi]. This additional condition infused in the law
by means of judicial interpretation reflects the lack of comprehension of the
uniqueness of this particular offense under the Copyrights Ordinance. To shed further light on the former
statement, it is beneficial to have a bird’s eye view of the treatment of
criminal copyright infringement complaints in the USA and India:
USA:
In the USA,
the last two decades have shown that both the Executive and the Legislative
branches appear agreeable to increasing the level of detection and prosecution
of copyright infringement. Both seem to be "on board" with the idea
that intellectual property is valuable and vulnerable, and that undeterred
infringements - particularly in the digital age - are likely to prove
destructive to the country's production of intellectual output[xii].
The USA has strengthened penalties on criminal infringement of copyright on all
three fronts: (1) Legislative; (2) Administrative; and (3) Judicial.
Legislative:
The decision
of United States v. LaMacchia
871 F. Supp. 535 (D. Mass. 1994), prompted the Congress to introduce
significant developments in the arena of criminal copyrights infringement as it
was felt that the profit motive in criminal copyright infringement (piracy,
concept or algorithm theft of software etc.) can only be countered by stronger
criminal penalties to serve as deterrents. Hence by lowering the prosecution’s
burden to prove intention to infringe, inter
alia the Congress amended 17 U.S.C. Section 506 and 18 U.S.C. Section 2319
to specifically address digital transmission and to sanction infringers who do
not personally gain from copying software, audio, or video.
Administrative:
Criminal
copyright infringement is now investigated by a specialized Intellectual
Property wing of the FBI[xiii]
which directly accepts complaints from all aggrieved individuals. These
complaints are investigated in a timely manner, and infringers are promptly
penalized.
Judicial:
While the
Legislature has shown constant reevaluation of criminal penalties for
copyrights infringement, some like Ting Ting Wu[xiv] are
of the opinion that a watered-down version has been implemented by courts with
regards to the intended relaxation of “willfulness to infringe” requirement. Nevertheless, courts in the US are
increasingly aware of the unique nature of the criminal copyright infringement
and the necessity to treat this theft of intangible property differently from
the traditional crime of tangible property theft.
United Kingdom
The IPR
protection laws in the United Kingdom provide for criminal proceedings where
copyright has been infringed under Sections 107 and 198, Copyright, Designs and
Patents Act 1988). It is also open to a copyright owner to bring a private prosecution
directly (there is no requirement for the UK Intellectual Property Office to
make a preliminary determination on the potency of such complaint). The main
bodies for the enforcement of the criminal offences are the police and trading
standards officers. On conviction on indictment the maximum penalty for these
offences is ten years' imprisonment, an unlimited fine, or both. Criminal
matters are dealt with in the criminal courts. Where parties are unable to
reach agreement in commercial licensing disputes they might also wish to
consider, as an alternative to the Copyright Tribunal, mediation services.
India:
In India,
the National IPR Policy 2016[xv] has
revolutionized the procedure for a criminal copyright infringement. A
specialized federal agency, the Economic Offence Wing (EOW) under the Central
Bureau of Investigation, deals with specific areas of intellectual property
such as counterfeiting, piracy and cybercrimes, and handles the investigation
and prosecution of IP rights infringements at federal level. In 2016, India’s
first dedicated, state IP crime unit was launched by the Telangana state
government, known as the Telangana Intellectual Property Crime Unit (TIPCU). Unlike
Pakistan where the 18th Amendment envisages inter alia devolution of
power of all subject not enumerated in the FLL to the Provinces, In India, there
is quasi-federal character of the Indian polity, with specific provisions in
the Constitution, which allow a coordinating and counseling role for the Centre
in police matters and even authorizes it to set up certain central police
organisations. The issue of a IPR protection which is a national concern for
all countries therefore remains the concern of the central government despite
local police having the power to investigate a criminal copyright complaint.
Investigation
of a criminal copyright infringement in India is dealt with the Police force. The
central government has taken numerous steps to promote IP awareness among the Police.
For example, the Cell for Intellectual Property Rights Promotion and Management
(CIPAM) organizes Police training programmes and several training sessions have
been conducted with various state Police departments. For the purpose of IP
protection and awareness, CIPAM also collaborates with other organizations.
Recently, it prepared an IP rights enforcement toolkit for Police officials in
conjunction with the Federation of Indian Chambers of Commerce and Industry.
With the
storm of rapidly advancing technology in the world, it is imperative that
courts interpret IP statutes in a flexible manner instead of conventionally
relying on the Legislature to update the statute according to the latest
technology. In WIPO’s “A Casebook of
Enforcement of Intellectual Property Rights” (4th Edition)[xvi],
L.T.C. Harms promotes the above approach by citing judgments of various courts
around the world which are implementing this progressive and much needed mode
of judicial interpretation. One such example can be found in Golden China TV
Game Centre and Others v Nintendo Co Ltd[xvii]
where it was held that: “Legislative
inertia ought not to impede human ingenuity and the reasonable protection
thereof .. the definitions in the Act
should be interpreted ‘flexibly so that it would cover new technologies as they
appeared, rather than to interpret those provisions narrowly and so force [the
Legislature] periodically to update the act”. It is vital that the courts
of Pakistan follow suit, lest we find ourselves far behind on this digital
overhaul of the world economy.
Both civil
and criminal remedies under the Ordinance fail to create any deterring impact
on potential infringers since the implementation of remedial measures take
decades. Furthermore, there is no provision in the Copyright Ordinance that
provides for cooperative action against online piracy. There are no provisions
that provide expeditious injunctive-style relief and disabling of infringing
content online. In effect, the system in practice benefits the infringer in
terms of both time and money.
3. The Patent Ordinance, 2000 (the “Patent Ordinance”)[xviii];
A patent is an industrial property right that gives an
individual/entity the right to exclude others for a limited period of time,
depending on the country in which the patent is held[xix].
The protection of such right helps secure the financial interests of those
investing in the research and development of patents and therefore, it is
imperative to enforce patent protection laws. The enforceability of patent
protection laws in courts faces its fair share of obstacles owing to lack of
familiarity of IP Tribunal Presiding Officers with technical expertise for
adjudicating a patent infringement suit as the inordinate delays in court
procedure which result in loss to the patent holder whose right is limited to a
very short period of time. The protection afforded to patents under law in
Pakistan is immaterial unless implementation of the same is ensured by the IP
Tribunals and the relevant administrative officials. Two polar opposite issues
emerge with regard to such implementation: (1) a lenient approach being taken
in terms of grant of patents by the administrative authority (the Patent Office[xx]) especially
to those related to pharmaceutical and agricultural products[xxi];
and (2) the lack of awareness and investment in research and development to
enable generation of more patents. The former issue can only be remedied with
improved training and workshops for officials working in the Patent Office
(since April 2005, the Patent Office is part of the IPO).
While there is negligible case law on the patent
enforceability in Pakistan, the immediate focus for remedial action must be on
the encouragement of local patents in the fields of medicine and IT. According
to the WIPO statistics database (last updated on March, 2020)[xxii],
the total number of patent applications in Pakistan in the year 2009 were 114.
Whereas by the year 2018, this number increased to 306. There was no
substantial increase in the number of patent grants in this period (2009 -
2018) and the ratio of non-resident grants to resident grants remains to be 13
to 1[xxiii].
This ratio of 13 to 1 of non-resident patent to resident patent grants reflects
the harrowing reality that Pakistan is miserably failing at two fronts: (1) at
creating awareness of patentability of inventions amongst the masses and (2) at
nurturing and encouraging patentable inventions. This not only means a huge
monetary loss in terms of patent royalties that are paid to non-residents for
inventions and patented drugs used in Pakistan, but also paints a dull picture
for the future of the economy in Pakistan. Pakistan rankings in WIPO’s Global
Innovation Index Rankings fell from 104 in 2019[xxiv]
to 107 in 2020[xxv] reportedly
owing to weaknesses in terms of expenditure on education as a percentage of
GDP, school life expectancy, tertiary enrollment, research and development and
lack of use and access to IT services. Even otherwise, the number of patent
filings, applications and grants in Pakistan is a disturbingly low figure as
compared to other nations of the world. For instance, the number of patent
applications in India for the year 2018 were16,289 resident application and 33,766
non-resident applications. On the other hand, the number of patent grants were
2,311 resident patents grants and 11, 597 non-resident patent grants.
The overview of the number of patent grants being given
to resident patents guarantees a future for Pakistan where its human resource
will be dependent on job creation by the Federal and Provincial Governments
whereas there seems to be little for hope job creation by start-ups and
small-businesses particularly in the information and technology sector. This
also means that the profits from pharmaceutical industries will remain
dominated by foreign patents for the foreseeable future. Heavy investments in
research and development (R&D) alone can encourage patentable inventions
and registration thereof amongst the residents of Pakistan. India spent just
0.7% of its gross domestic product (GDP) in 2016-17 on R&D. Meanwhile,
Japan, the US and China spent 3.2%, 2.8% and 2.1%, respectively, in 2017,
according to the Organization for Economic Co-operation and Development (OECD)[xxvi].
There is a pressing need for Pakistani universities, private sector companies,
startups, and research institutes to direct their attention towards generating
more patents to remedy the economic deficit incurred on account of patent
royalties to foreign patents and in order to do so, a trend of funding for R&D
must be brought about amongst Pakistanis as a nation. Donations to Universities
for R&D initiatives must also find their share in the philanthropic contributions
that the citizens of Pakistan are known for. The absence of a culture of
investment in R&D in Pakistan must be treated as a national emergency if it
is to see itself making positive impact in the global economy. The attention of
the Parliament must also be brought towards the loopholes in the Patent
Ordinance in terms of applicability of the Civil Procedure Code to the same.
4. The Trademark Ordinance, 2001 (the “Trademark
Ordinance”)[xxvii];
The concept of a “trademark” as an intangible property
that mandates protection of the law sits more comfortably with the traditional
concept of property and ownership and therefore, IP Tribunal presiding officers
(judges) as well as judges of the superior Courts have implemented the
Trademark Ordinance and its accompanying Rules with sufficient ease. The
comprehensive precedents laid down by the IP Tribunal and superior Courts aid
the smooth implementation of trademark protection law in Pakistan so far as the
judiciary is concerned. To the extent of the administrative implementation of
this law, a lack of efficiency and stringency is prevalent. Counterfeit
products are available in select markets which are known to sell them at
cheaper prices. Despite such sale being common knowledge, not much has been
done to remedy this situation. It may be unfair to overlook the fact that a
gradual shift in the attitudes of the public at large which is becoming less
tolerant to counterfeit products, nevertheless the goal of absolute intolerance
towards trademark violation is far from achievable at present. Moreover, a
substantial percentage of consumers are ill-equipped to distinguish a
counterfeit product from an original product under a certain trademark. In
these circumstances, the sole torchbearer to rely on for implantation is the
administrative controls and structure in place under the Trademark Ordinance
which the IPO alone can ensure. The local Police force as well retailers, shop
owners etc. should be made aware of this violation of the law and be brought on
board by securing their support in fighting against the sale of counterfeit and
trademark infringing products.
III.
Inconsistency
in Enforcement of IPR Laws
The judicial
as well as the administrative aspect of enforcement of IPR laws in Pakistan
suffer an unapologetic and consistent lack of understanding of the sensitivity
of IPR laws and its direct impact on the economy of Pakistan. This results in
lack of unanimity in the decisions made in terms of IPR implementation by the
Presiding Officers in IP Tribunals as well as the Judges of the Superior
Judiciary in the High Courts. One glaring example of this is the contrasting
decisions by IP Tribunals and High Courts with regard to the jurisdiction of
the FIA in investigating criminal copyright infringement complaints. For
instance, in the recent decisions of The
State v. Azmat Ali, 2018 CLD 519 (IP Tribunal Sindh and Balochistan) and Dr. Syed Iqbal Raza v. Justice of Peace,
2019 CLD 642 where the IP Tribunal and the Hon’ble Islamabad High Court
respectively held that the FIA had no jurisdiction in investigating a private
complaint for criminal copyright infringement. Whereas in similar circumstances
in The State v. Muneeb Iqbal Batla,
2017 CLD 1493 (IP Tribunal Sindh and Balochistan) and Anoop Kumar v. Federation of Pakistan ad others, 2017 MLD 1402 the
IP Tribunal and the Hon’ble Karachi High Court respectively found no issue of
jurisdiction of FIA in investigating private complaints for criminal copyright
infringement. Moreover, the decision of the IPR Tribunals and the Superior Courts
on holding that the FIA lacks jurisdiction where matters do not directly
concern the Federal Government, turn a blind eye to the law that specifically
bring criminal copyright infringement within the jurisdiction of the FIA as
well as the 18th Amendment, by virtue of which copyright is a
Federal subject and hence any criminal investigation under the Copyrights
Ordinance may only be conducted by a Federal investigation agency, the FIA.
These uncertainties in the implementation of the law deprives the aggrieved of
the hope of any remedy under the law, further delay procedures of
implementation of IPR laws and give implementation bodies such as the FIA the
option to pick and choose the criminal complaints that are made to them by
private entities under IPR laws.
Conclusion
Enforcement of IPR protection is a two-part process
which requires enforcement of IPR protection laws on both the judicial side as
well as the administrative side. Unfortunately, both judicial and
administrative enforcement of IPR laws reflects a lack of commitment,
efficiency and oversight that is required.
a)
National IP Policy
A National
IP Policy should be introduced by the Federal Government which only encourages
increase in innovation and IPR registrations at a national level, but also
invites global investment in Pakistan’s IP assets. This can only be ensured if
local as well as foreign IPR are given due and prompt enforcement within
Pakistan, in turn ensuring that our IP assets will be duly recognized internationally.
This National IP Policy should be formulated after exhaustive discussions on
related international best practices and feedback from the stakeholders in the
field of IP – the entrepreneurs, IPR owners, the University Vice Chancellors,
young innovators etc. A good start for gathering relevant data for an effective
National IP Policy could be by organizing an IP Summit each year. The
effectiveness of the remedial measures imposed to improve the protection of IPR
in Pakistan can only be gauged by how it is being perceived by those it is
intended to benefit. Therefore, in light of this feedback the National IP
Policy should be revised on a yearly basis. By extending this IP Summit to a
few days, it may also be used as a platform for IPR owners and foreign
investors to meet and discuss opportunities. The IPO may play a part in
inviting a sizeable number of investors and innovators. The basic skeleton on
the National IP Policy should include:
i.
A nation-wide IP Policy or Strategy must be developed.
Guidance may be sought from several helpful sources on WIPO’s website including
“Guidance for the Development of an
Intellectual Property (IP) Strategy in Countries in Transition” (Version
Two)[xxviii]
according to which, before compiling a strategy, a clear picture of the current
position is needed along with a realistic assessment of what can be achieved.
The current IP activity of the country should be analyzed and general
information on the overall economic position considered. An IP strategy cannot
be conceived and developed narrowly within the IP community alone. It needs to
recognize the needs of the stakeholders who will be affected by it. A cross
section of government departments need to be involved in addition to the IP
Office (or Offices if Copyright and Industrial Property are dealt with
separately), including the Ministries that deal with Economic issues, Science
and Technology, Trade and Services, Customs, Market Inspections Culture,
Justice, Education and Finance, all of which play an important part in the
economic and social life of the country. Given the international dimensions of
IP it may be also that the Ministry for Foreign Affairs will be interested in
the strategy as it may affect many of their negotiations. In addition, there
may be issues involving health, regional questions, or information which
requires the appropriate government bodies involved in the formulation of such
IP Policy.
ii.
Policies to curb delays in IP Tribunal and court
procedure, perhaps by introducing strict timelines within which IP suits must
reach finalization. Adjournments should be discouraged and only sparingly given
by IP Tribunals and more Presiding Judges and Tribunals should be created to
ensure that no backlog is created and suits are promptly heard.
iii. A task
force should be created for remedying issues in implementation of IP laws;
iv.
An IP Wing should be created in the FIA and laws or
guidelines should be introduced to ensure investigations are completed within a
fixed time period;
v.
All Universities in Pakistan must be invited to
city-wise lectures/workshops/seminars by Officers of the IPO who are well
versed with the IPR laws and National IP Policy of Pakistan. Summarized
guidelines simplifying the process of IP registration must be distributed at
the end of these lectures/workshops/seminars and links to the same must be
available on the website of the IPO.
vi.
The Federal Government must establish a department in
the Ministry of Foreign Affairs similar to the U.S. Department of Commerce
Office of Standards and Intellectual Property (OSIP) which assists the citizens
of the country in developing an enforcement strategy for international
enforcement of IP rights if an infringement has occurred in a foreign country. Such
department should, like the OSIP consist of IP experts from all over Pakistan,
and other Pakistan Government IPR experts must stand ready to work with local
law firms to help them protect their citizen’s or local entity’s intellectual
property abroad. Where citizens have failed to enforce IP rights in a foreign
country despite a valid infringement claim, such department should be able to
raise concerns with the government officials of such countries so as to create
a stir internationally and enforce Pakistani IPR[xxix].
vii.
Taking inspiration from WIPO’s “Management
Of Academic Intellectual Property And Early Stage Innovation In Countries In
Transition”[xxx] companies,
governmental organizations and especially universities should be encouraged to
have a technology transfer office (TTO) with the objective to identify research
results that are of potential economic interest and to elaborate strategies for
their utilization. TTOs can be of multidisciplinary character and can employ
scientists, engineers, economists, lawyers and marketing experts for the
promotion of IP protection and commercialization. When technology transfer is
realized through licensing a technology towards a third party is of major
interest, which licensing occurs by the cooperation of the university’s
technology managers, non-profit organizations and business enterprises[xxxi].
In general, the following basic methods can be used by these TTOs for
exploiting the technologies based on a university’s R&D are the following:
a) Licensing
to an established company;
b) Establishment
of a spin-off company; and
c) Assignment
of the IPRs.
viii.
A strategy
must be developed by the Federal Government and universities, business
enterprises and relevant IP organizations which encourages a “technology pull”
and creates an environment of foreign investment within the country. (If a
technology has been developed to satisfy a special need identified up by an
industrial partner, it is called a technology pull. If an external partner is
sought for the technology formerly developed by the university, the process is
called technology push. In countries in IP technology transition such as
Pakistan, technology push is a common necessity as a result of the absence of
an established business community[xxxii]).
b)
Awareness of International IPR Law
Awareness
of International best practices in implementation of IPR law must be conducted
amongst members of the Judiciary through inviting organizations such as the
WIPO and the WTO to send individuals who have experience of adjudicating
international IP disputes as guest lecturers to Pakistan. The impact of IP
assets on the economic progress of the country and hence a general policy of
expediting IPR disputes must be encouraged amongst the Judiciary. Since TRIPS
forms the basis of the IPR laws of a substantial number of countries, latest
judgments from signatory countries (which are leading in the field of IP such
as the USA, UK, France, Germany, Sweden, Japan) should be regularly distributed
by the IPO amongst the Presiding Officers of the IPO.
c)
Training of IPO Officials and the FIA
IPO
Officials must be given training by guest lecturers from the WIPO in the
international best practices of registering IP and strict guidelines must be
issued by the IPO in order to streamline and expedite registration procedure.
IPO Officials must also be actively involved in encouraging innovation and
registration of IPR and should be required to hold open-to-public seminars
where importance of IPR registration is emphasized. A research center must be
allocated in the IPO that is dedicated to keep the IPO and FIA updated with the
latest international best practices, technological equipment and procedures
that have been introduced in countries such as the USA, UK, France, Germany and
Japan. As part of the National IP Policy, an IP Wing must be created in the FIA
and those working on IP investigations must be given annual training on the
best international practices in this regard. They must also be provided with
and be trained to use any technological equipment that is necessary for the
investigation processes.
d)
Encouraging R&D Investment
While there
is a need for encouraging foreign investors to consider channeling their
investments to Pakistan IP based ventures, we will also benefit from
encouraging philanthropic contributions for IPR related R&D in
Universities. A culture of philanthropic contributions in the field of R&D
must be created and for this, the IPO must engage universities, IP experts of
the county as well as leading business enterprises to play their part.
[i] Carlos A. Primo Braga,
Carsten Fink and Claudia Paz Sepulveda, “Intellectual Property Rights and
Economic Development”, World Bank Discussion Paper No. 412 (2000)
[ii] Source: https://www.forbes.com/real-time-billionaires/#38da2ee93d78
[iii] Source: https://www.commerce.gov/news/reports/2016/09/intellectual-property-and-us-economy-2016-update
[iv] Pakistan is also
signatory to the Berne Convention and the Universal Copyright Convention (UCC).
The
Berne Convention for the Protection of Literary and Artistic Works, usually
known as the Berne Convention, is an international agreement governing
copyright, which was first accepted in Berne, Switzerland, in 1886. Pakistan
became signatory to the same in the year 1948.
The
UCC was adopted in Geneva, Switzerland, in 1952 and is one of the two principal
international conventions protecting copyright; the other is the Berne
Convention. Pakistan became signatory to the same in the year 1955.
[v] Part I of the Federal
Legislative List.
[vi] US Chamber
International IP Index, Eighth Edition, 2020. See more at: https://www.uschamber.com/sites/default/files/023881_gipc_ip_index_2020_fullreport_final.pdf
[vii] Along with the Copyrights Rules, 1967.
[viii] Under the TRIPS Agreement, criminal procedures and
penalties are only mandatory in cases of willful trademark counterfeiting or
copyright piracy carried out on a commercial scale.
[ix] Article 61
of the TRIPS Agreement requires that provisions be made by Member countries of
procedures for enforcement of criminal remedies against a willful infringer of
copyrights and trademarks. Sanctions must include imprisonment and/or monetary
fines sufficient to provide a deterrent, consistent with the level of penalties
applied for crimes of a corresponding gravity. Criminal remedies in appropriate
cases must also include seizure, forfeiture and destruction of the infringing
goods and of materials and instruments used to produce them.
The TRIPS Agreement leaves it to Members to decide
whether to provide for criminal procedures and penalties to be applied in other
cases of infringement of intellectual property rights, in particular where they
are committed willfully and on a commercial scale.
[x] Division
Bench Judgment of Dr. Syed Iqbal v. Justice of Peace 2019 CLD 881 which
upheld a prior Single Bench judgment.
[xi] By giving a narrow construction to Section 13 of the
IPO Act, the Honorable High Court in effect held that all powers and functions
of the IPO under the said provision can only be exercised by the IPO alone.
This would lead to an absurd system where for example, according to Section
13(xii), only the IPO can “promote education and research in the field of
intellectual property”.
[xii] See Karen
J. Bernstein, The No Electronic Theft Act: The Music Industry's New Instrument
In The Fight Against Internet Piracy, 7 UCLA ENT. L. REV. 325, 328-29 & nn.
15-18 (2000)
[xiii] National Intellectual
Property Rights Coordination Center, https://www.iprcenter.gov/
[xiv] See Ting Ting Wu, The New Criminal
Copyright Sanctions: A Toothless Tiger?, 39 IDEA 527, 531 (1999).
[xv] Source: https://dipp.gov.in/sites/default/files/National_IPR_Policy_English.pdf
[xvi] Source: https://www.wipo.int/edocs/pubdocs/en/wipo_pub_791_2018.pdf
[xvii] Golden China TV Game Centre and Others v. Nintendo Co
Ltd (55/94) [1996] ZASCA 103; See also, page 161 of L.T.C. Harms’ “A Casebook
of Enforcement of Intellectual Property Rights” (4th Edition)
[xviii] Along with the Patent Rules, 2003.
[xix] James E. Armstrong III,
“Comparative National Approaches to Intellectual Property Rights”, Global
Dimensions of Intellectual Property Rights in Science and Technology, (1993):
155
[xx] According
to Section 4 of the Patent Ordinance.
[xxi] Source: http://pakpat.com.pk/Publications/important%20issues%20relating%20to%20Pak.html
[xxii] Source: https://www.wipo.int/ipstats/en/statistics/country_profile/profile.jsp?code=PK
[xxiii] A resident patent grant refers to a patent granted in
the country to its own resident while a non-resident patent refers to the
granted to foreigner in Pakistan.
[xxiv] Source: https://www.wipo.int/edocs/pubdocs/en/wipo_pub_gii_2019/pk.pdf
[xxv] Source: https://www.wipo.int/edocs/pubdocs/en/wipo_pub_gii_2020/pk.pdf
[xxvi] Source: https://economictimes.indiatimes.com/tech/internet/pending-patents-key-to-bridge-vast-tech-gap-with-us-china/articleshow/71458600.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[xxvii] Along with
the Trademark Rules, 2004.
[xxviii]Source: https://www.wipo.int/edocs/pubdocs/en/wipo_pub_transition_1.pdf
[xxix] Source: https://www.stopfakes.gov/article?id=How-Do-I-Enforce-My-Intellectual-Property-Rights-in-a-Foreign-Country#:~:text=A%20U.S.%20patent%20or%20trademark%20does%20not%20afford%20protection%20in%20another%20country.&text=Once%20you%20have%20confirmed%20you,remedies%20available%20in%20that%20country.
[xxx] Source: https://www.wipo.int/edocs/pubdocs/en/wipo_pub_transition_2.pdf
[xxxi] See Footnote 30 ibid.
[xxxii] See Footnote 30 ibid.
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