Intellectual Property Rights in Pakistan

INTELLECTUAL PROPERTY RIGHTS IN PAKISTAN* INTELLECTUAL PROPERTY RIGHTS IN PAKISTAN* By Kamran Adil" Khalid Ishaq'" INTRODUCTION The law locks up the mart or woman who steals the goose from off the common and geese will still a common lack till they go and steal it back. The debate about the artificial nature of intellectual property rights is not new. There is a sharp difference of opinion: some argue that information cannot be monopolized, * In writing this article we are indebted to many a soul. Our special thanks to Mr. Yasin Tahir, Ex-DG of IPO-Pakistan, Mr. Muhammad Ismail, DD of IPO Lahore, Mr. Rizwan Basharat, Ex DD of IPO-Lahore, Mr. Hassan lrfan Khan. *** Kamran Adil is an officer of Police Service of Pakistan. He has done his LLB (Hons) Shariah &Law from the International Islamic University. Islamabad, and has done his BCL from the University of Oxford. *** Khalid Ishaq is Practising Law at Lahore. He has done his LLB (Hons) Shariah & Law from the International Islamic University Islamabad, and has done his LL.M (Corporate Law) from the University College London therefore the concept of intellectual property is artificial and must be demolished; others contend that 'it is the legal form of information age'1 and is a sine qua non of the capital economy. In Pakistan's case, the IP ' laws predate its independence; the IP regime was recondite. A new impetus, however, was added to the IP regime after Pakistan became part of the World Trade Organization and after ratifying the Trade Related Intellectual Property Rights (TRIPS) agreement. Consequently, rewriting the old IP laws was done besides establishing new infrastructure in form of Intellectual Property Organization of Pakistan, which introduced the concept of integrated management of IPs in Pakistan. The focus of the instant article is to ascertain the state of enforcement of IP in Pakistan. The article does not pass a judgment on the state of enforcement of IP in Pakistan: it tries to identify the framework in which'enforcement is being carried out and tries to highlight the salient features and key indicators related to enforcement. The writing's scope is confined to trade marks and patents only. After briefly discussing the literature on the issue, research methodology has been explained. Later, the article is organized into four sections. Section one has attempted to provide an overview of the subject, both theoretically as well as on practical side in Pakistan. It elaborates the core concepts and then explains how the implementation mechanism works in Pakistan. In part two, the enforcement of trade marks is analyzed in the light, of available data. The third section focuses on enforcement of patents. Finally, the fourth section comes up with conclusions and recommendations. REVIEW OF THE LITERATURE Very little has been written on the enforcement of intellectual property rights (IPRs) in Pakistan. The official version, which is documented in Annual Report2 of Intellectual Property Organization-Pakistan (IPO), has a full-fledged chapter on the IPR enforcement. The chapter is descriptive and has no statistical base to support the claims made in the report. It also outlines the 'Enforcement Achievements'. On analysis, it appears that there is no scientific or administrative basis of these 'Enforcement ________________________ 1 James Boyle, "A Politics of Intellectual Property", in Intellectual Property Rights, ed. David Vaver (London and New York: Routledge Taylor and Francis Group, 2006), 369. 2 Intellectual Property Organization, Annual Report 2008-09 (Islamabad: Official Printers), Chapter 8. Achievements', which are, indeed, the details of steps taken by IPO and other agencies for coordination Another piece of writing is by Mr. Hassan Irfan Khan, a leading lawyer of IPRs, who stated in an article that Pakistan provides adequate and effective protection to patent owners3. In support of his view, he has presented four cases decided by courts. He has highlighted the outcomes of the cases; however, more legal analysis on the point was expected from an expert of his standing. For example, in a case cited in his article to support his viewpoint (i.e., Khawaja Tahir Jamal4), the patent owner was able to get an interim injunction order in his favour from the Lahore High Court, but in intra-court appeal in the same Court, the judges of the Divisional Bench, modified the interim injunction order and allowed the infringer of the patent 'to produce but not to market' the product (sheet glass). This modification in the interim order and its impact on the final outcome of the case has not been fully discussed by the learned author. Likewise, the issues of access, evidence, procedure, damages, prosecution and the time it takes to get the final order have not been discussed at all. Finally, in Pakistan's specific context, an expert mission was appointed by the World Intellectual Property Organization (WIPO) to provide expert input to Pakistan on National Intellectual Property Strategy, which produced its detailed reports5. A portion of the report dealt with enforcement and dispute resolution. The report did not comment on the existing system of enforcement of IP in. Pakistan and sufficed by only offering its very general recommendations. At international level, IPRs' enforcement related literature is sparse. An article by L.T.C. Harms6 shows how South African Courts, by applying principles of Common Law, have tried to implement IP laws. However, in this article, there is no statistical data and the author has not provided any framework, which can be useful for anyone who wishes to examine the enforcement status of his ___________________________ 3 Hassan Irfan Khan, "Pakistan Recent Trends in Patent Enforcement", under "Building and Enforcing Property Value 2008", http://www.buildingiovalue.com/08 AP/223-225United Trademark.pdf (accessed on 12 February 2011). 4 2005 Corporate Law Decisions 1768. 5 Report on National Intellectual Property Strategy, by Ms. Liew Woon Yin, Ex DG of IPO, Singapore, borrowed from Mr. Muhammad Ismail, Deputy Director, Lahore IPO-Pakistan. 6 L.T.C.Harms, "The Role of the Judiciary in the Enforcement of Intellectual Property Rights", in Intellectual Property Rights, ed. David Vaver (London and New York: Routledge Taylor & Francis Group, 2006), 55. country. Likewise, Robin Jacob's7 article is only relevant to advanced economies as it analyzes the state of affairs in the US, the UK and the EV. Again, the article has no general framework or statistical data. The above writings do not systematically deal with the issue at hand. Important generic questions have not been asked. Some of the questions are: What is the difference between the public and private enforcement mechanisms8? Which form of public or private enforcement is suitable for Pakistan, or should Pakistan be opting for a mix of both private and public enforcement? In case of public enforcement, as is the present situation, should the enforcement be carried out by one or by multiple agencies? How effectiveness of enforcement of IP laws can be measured? What are the problems with the existing systems? The instant writing does not offer answers to all these questions; however, it does make an effort to systematically approach the subject and to offer an improved framework of analysis. METHODLOGY The methodology used for conducting research in the paper is primarily analytical and would bear most on the time on the qualitative aspect of the matter. The material collected for the research is based on primary and secondary sources. The primary sources comprise interviews with source persons who have had the access to the management of IPRs in Pakistan like Ex. DG of Intellectual Property Organization of Pakistan. The secondary sources consist of number of reports, annual reviews, research papers and some pioneer works on the subject. In order to make the research comprehensive, some of the stakeholders like representative of pharmaceutical industry have also tallen on board and understanding about their view point has also been developed and applied. 1.1 WHAT ARE IPRS? The term 'Intellectual Property Rights' (IPRs) is 7 Robin Jacob, One Size Fits All?" in Intellectual Property Rights, ed. David Vaver (London and New York: Routledge Taylor & Francis Group, 2006), 61. 8 A. Mitchell Polinsky and Steven Shavell, The Theory of Public Enforcement of Law", National Bureau of Economic Research Working Paper No. 1170, http://www.nber.org/papers/w11780 (accessed on 12 February 2011), 1 , generic9 and its subject-matter is disparate10 and expansive by natu'rell. There is an insistent 'encounter' between the concept of IPRs and development12, especially after the introduction of Trade Related Intellectual Property Rights Agreement (TRIPS) under the framework of World Trade Organization (WTO)13. There is no definition of IPRs which highlights the essential attributes of the term"; however, there are inclusive definitions available, for example, the Convention Establishing the World Intellectual Property Organization 1967 offers the following listing definition:-‑ Literary artistic and scientific works; performances of performing artists, phonograms, and broadcasts; inventions in all fields of human endeavor; scientific discoveries; industrial designs; Trade Marks, service marks, and commercial names and designations; protection against unfair competition....15 The above stated definition, in practice, focuses' on patents, copyrights, Trade Marks, industrial designs, geographical indications, service marks, 'derivative works16, and 'the repression of unfair competition17 etc. In Pakistan, the IPRs were introduced prior to its independence through _______________________ 9 Dr. Peter Drahos, -Me Universality of Intellectual Property Rights: Origins and Development", http: //www.wipo.int/tk/en/hr/paneldiscussion/papers/pdf/drahos.pdf (accessed on 8 February 2011). 10 Ibid 11 Ibid 12 Margaret Chon, "Intellectual Property and the Development Divide", Cardozo Law Review 27, No.6, htto://www.cardozolawreview:com/content/27-6/ CHON.WEBSITE.pdf (accessed on 8 February 2011) 13 Ibid 14 Dr. Peter Drahos, The Universality of Intellectual Property Rights: Origins and Development", http://www.wipo.int/tk/en/hr/paneldiscussion/papers/pdf/drahos.pdf (accessed on 8 February 2011) 15 Article 2(viii) of the World Intellectual Property Organization Convention 1967 16 Article 2(3) of Berne Convention for the Literary and Artistic Works 1886. 17 Article 1(2) of Paris Convention for the Protection of Industrial Property 1883. The inclusion of 'unfair competition' in the list of IPRs is interesting as this shows linkages of IPRs with anti-trust laws and it must be appreciated that in the present world, competition and anti-trust law have emerged as an independent area, for example, see Articles 101 and 102 of the EU Treaty 1992 for European Law, Sections 1 and 2 of Sherman Anti-Trust Act 1890 for the US law, Pakistan's Competition Act 2010 for Pakistan's law. various legislations18; however, after acceding to WTO and TRIPS, new legislations were introduced19, which dealt with different types of IPRs like patents, Trade Marks and copyrights. Since 2005, the enforcement of these IPRs has been entrusted to one organization styled as Intellectual Property Organization Pakistan20 (IPO-Pakistan). 1.2 EVOLUTION OF IPRs 'The history of IPRs traces itself back to 1474 when Venetians introduced the patent law21. For linking the past to the present, the evolutionary period can conveniently be divided into three periods: the Territorial, the International and the Global. The Territorial Period was marked by close relationship between sovereignty of a country and its IPRs 'protection, which meant that IPRs were national in their application and had no impact in other countries22. Later the International Period started, which resulted in many bilateral and multilateral agreements amongst the countries. The salient point of this era was that these bilateral and multilateral agreements emanated out of reciprocity23 as 1838 and 1844 saw the UK offering recognition to foreign authors based on reciprocity. Resultantly by 1883, 69 bilateral agreements between different countries had taken place24. Paris Convention for the Protection of Industrial Property 1883 and Berne Convention for the Literary and Artistic Works 1886 also got agreed in the International Period. One of the implications of this period is that broadly speaking the period introduced broad distinctions between _________________________________ 18 For example, Patents and Designs Act 1911, Merchandise Marks Act 1889, Trade Marks Act 1940 and Sections 478 to 489 of Pakistan Penal Code 1860. 19 For example: the Intellectual Property Organization of Pakistan Ordinance, 2005, Patents Ordinance 2000 (amended in 2002 and 2006), Trade Marks Ordinance 2001, Copyright Ordinance 1962 (amended in 2000), the Registered Designs Ordinance, 2000, the Registered Layout-Designs of Integrated Circuits Ordinance, 2000. 20 Established under the Intellectual Property Organization Ordinance 2005, which got re-promulgated again and again and its latest promulgation came in 2009. However, after the passage of Eighteenth Constitutional Amendment, the procedure for promulgating an Ordinance has been qualified and it is yet to be seen how the new amendment will affect IPO. 21 Dr. Peter Drahos, "The Universality of Intellectual Property Rights: Origins and Development", http://vvww.vvipo.int/tk/en/hr/paneldiscussion/ papers/pdfdrahos.pdf (accessed on 8 February 2011). 22 Ibid 23 Ibid 24 Ibid Industrial IPRs (Paris Convention phenomenon) and Copyrights (Berne Convention phenomenon)25. Finally, the Global Period set in. The chief characteristic of this Period is that it linked the trade with IPRs. This Global Period has had its impact on Pakistan. Before 2005 Pakistan's IPRs' image was defined by its performance in enforcement of copyrights where it did not enjoy a respectable position. It was ranked as fourth largest exporter of pirated optical discs of the world26, and in the category of business software, the piracy ratio was placed ,at 82%27. Pakistan's IPRs management was fragmented as patents were managed by Ministry of Industries and Production through its Patent Office, Trade Marks were managed by Ministry of Commerce through Trade Marks Registry and copyrights were managed by Ministry of Education28 through Copyright Office. After establishing of .IPO-Pakistan, besides other steps, two major steps were taken: first, the model of integrated management of intellectual property was introduced which brought an end to the fragmented system of IP creation, management and enforcement. The Patent Office, Trade Marks Registry and Copyright Office were brought under the control of IPO Pakistan, which in turn was put under the administrative control of Cabinet Division. Secondly, in order to formulate a National Intellectual Property Strategy, in collaboration with World Intellectual Property Organization (WIPO), a Consultant was appointed29. The Consultant (Ms. Liew Woon) conducted a National Audit, which provided useful insight into Pakistan's IP creation and management system. The National Audit highlighted: -‑ (a) Lack of awareness of IP matters at government, industrial and individual levels; (b) Perception by SMEs that 'cost of registration' is a barrier in creation of IP portfolio; (c) No over-arching national framework or commitment for effective IP management; __________________________ 25 Chakravarthi Raghavan, Recolonization GATT, the Uruguay Round & the Third World (Third World Network, 1990), 121 26 Intellectual Property Organization, Pakistan Review 2005. 27 Ibid 28 Ibid 29 Ms. Liew Woon Yin, Director General of Intellectual Property Office of Singapore in 2005. (d) IP not integrated into other policies of Pakistan. For example, industrial policy was silent on IPRs etc.30 1.3 LEGAL FRAMEWORK Legal framework of IPRs has been spread over national and international levels. At international level, the law of IPRs is contained in various instruments31 which include Paris Convention for the Protection of Industrial Property 1883, Berne Convention for the Literary and Artistic Works 1886, Paris Convention, Brussels Convention Relating to the distribution of the programme-carrying signals by satellite 1974. The most important is the TRIPS which must be read with the WTO Agreement. At national level, there are as many as six legislations dealing with different subjects. These legislations are:, the Intellectual Property Organization of Pakistan Ordinance, 2009, Patents Ordinance 2000 (amended in 2002 and 2006), Trade Marks Ordinance 2001, Copyright Ordinance 1962 (amended in. 2000), the Registered Designs Ordinance, 2000, the Registered Layout-Designs of Integrated Circuits Ordinance', 200032. The rules formulated under the legislations are: the Patent Rules 2003, the Trade Marks Rules 2004, the Copyright Rules 2004, etc. Besides, draft legislations on Plant Breeders Rights (PBR) and Geographical Indications (GIs) have been prepared33. 1.4 INSTITUTIONAL FRAMEWORK IP institutional infrastructure was in place since 1948. The Patents and Designs Office and 'the Trade Marks Registry were established in Karachi in 1948, the Copyright Office was established in 196734. The institutional management was fragmented as the management of IP was done by three ministries: Ministry of Industries and Production (Patents),. Ministry of Commerce (Trade Marks) and Ministry of Education (Copyrights) However, after 2005, _____________________ 30 Report on Pakistan's National Intellectual Property Strategy by Ms. Liew Woon Yin 31 About twenty four conventions/treaties and agreements as shown on the website of WIPO; complete list can be seen at 32 http://www.wipo.int/treaties/en/. 32 By Section 96(2) of the Constitution (Eighteenth Amendment) Act 2010, a new Article 270AA H2) has been added to (substitute the earlier Article 270 AA) the Constitution of Pakistan 1973 which provides for continuance in force of the above stated legislation (which is mostly done through 'Ordinances') unless specifically repealed by the competent authority. 33 IPO Pakistan Report 2008-2009 34 IPO Pakistan Review 2005 the institutional framework was revised and by introducing IPO-Pakistan through integrated management, the scenario was changed. IPO-Pakistan has its headquarters at Islamabad and its three registries are located at Karachi besides having regional office in Lahore. The following figure will help to elaborate the institutional framework. FIGURE 1: INSTITUTIONAL FRAMEWORK OF IP MANAGEMENT IN PAKISTAN