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Keynote Address of Honourable Chief Justice of Supreme Court of Azad Jammu and Kashmir at the World Intellectual Property Day

Islamabad: My brother Judges of the Supreme Court of Pakistan;

Honourable Chief Justice of Supreme Court of Azad Jammu and Kashmir

Honourable Chief Justices and Judges of the Federal Shariat Court and High Courts;
Learned Members of the District Judiciary;
Chairman and Members of the PIPRA;

Learned office bearers and members of the Bar Councils and Bar Associations of Pakistan;
Ladies and Gentlemen!


At the outset, I would like to congratulate Pakistan Intellectual Property Rights Association (PIPRA) and its Chairman for organizing the celebration of World Intellectual Property Day, which is observed on 26 April every year by the World Intellectual Property Organization (WIPO) since 2000 with the object of “raising awareness of how patents, copyright, trademarks and designs impact on daily life” and “to celebrate creativity, and the contribution made by creators and innovators to the development of societies across the globe”.

We are living in a fast changing world, where each and every moment is crucial. Big strides in the field of information technology have already converted the world into a global village, and made instant interaction among individuals and communities in different locations possible. In view of this ever increasing globalization, it is imperative to take account of the importance of Intellectual Property and the need to protect it.

The basic public policy rationale for the protection of intellectual property is that IP laws facilitate and encourage the pursuit of innovation on the one hand, and dissemination of knowledge among the public for the common good, on the other. Innovation needs to be rewarded as it encourages creative efforts through the recognition of exclusive rights in creative works and by providing protection of those rights.

The natural rights theorists essentially propagate that an author or creator of the work has a natural or proprietorial right over the creative work and the fruits of his labour. The lack of protection hence results in non-recognition of a proprietorial right, which a creator has over his creation. Innovation needs to be rewarded as it encourages creative efforts through the recognition of exclusive rights in creative works and by providing protection of those rights. Moreover, protection of IPRs leads to the protecting of investment and providing greater inventive to parties invest in business.

If a product takes considerable effort, ingenuity and research, but can be copied easily, there is not likely to be a sufficient financial incentive from the concerned company or an individual’s point of view, to devote resources towards the necessary research and invention and development of inventions and other creative works.

Furthermore trademarks and trade names are developed and popularised at considerable cost. A new entrant using the same or similar deceptive trademark profile improperly and illegitimately and causes loss to the proprietor by deceiving the public. The proprietor not only suffers a loss of trade, but also damage to his reputation because of substandard and poor quality products. In order to encourage creative activity it is necessary to provide a legal framework and judicial processes that will enable the inventor or creator not only to recover his cost but to profit from his efforts.

The history of legal protections for intellectual property is very old. It stretches back to ancient Greece and even before. There is continuous refinement and improvisation in laws providing protection to intellectual property as different legal systems matured with the passage of time. Though there is no known Roman law protecting intellectual property, yet there was discussion among Roman jurists regarding ownership interests associated with an intellectual work. Similarly, there were no institutions or conventions of intellectual property protection in Ancient Greece or Rome.

One of the first known references to intellectual property protection is from 500 B.C. when chefs in the Greek colony of Sybaris were granted years-long monopolies for creating particular culinary delights. There are also some references to intellectual property in ancient times cited by Bugbee[1]. The case of Vitruvius (257–180 B.C.) revealed intellectual property theft during a literary contest in Alexandria. The false poets were exposed, convicted and disgraced for stealing the words and phrases of others.

There are some references of Roman jurists regarding the ownership of a painting and the table upon which the painting appears. In another case, Fidentinus was caught reciting the works of Martial without citing the source. From Roman times to the Florentine Republic, there were many franchises, privileges, and royal favours granted regarding rights to intellectual works.

One of the initial statutes that protected authors’ rights was issued by the Republic of Florence on 19 June, 1421. That statute not only recognized the rights of authors and inventors but also provided incentive mechanism. The first patent institution of intellectual property protection was established under the Statute of 1474 of the Venetian Republic. The English system began with the Statute of Monopolies, 1624 and the Statute of Anne, 1710.

American institutions of intellectual property protection are based on the English system. However, literary works have remained largely unprotected till fifteenth century. Most of the scholars consider the Statute of Anne, 1710 to be the first statute of modern copyright. In the case of Miller v. Taylor[2], the inherent rights of authors, independent of statute or law, were affirmed. Although this case was later overruled in Donaldson v. Becket[3], the practice of recognizing the rights of authors had begun. Other countries followed the example set by England[4].

During the twentieth century, an efficient, transparent and rule based regime providing protection to the intellectual property rights was considered instrumental in the growth of innovation. Under the World Trade Organization (WTO), an international trade regime as well as a stricter Trade Related Intellectual Property Rights (TRIPS) regime has emerged.

Since last few decades, Genetic Resources, Traditional Knowledge and Folklore (GRTKF) have been identified as types of non-conventional Intellectual Property. These are recognized valuable intellectual assets of indigenous communities, traditional societies and local population of many countries.

Many scholars argue that the non-rivalrous nature of intellectual works grounds a prima facie case against rights to restrict access[5]. According to them, since intellectual works are not typically consumed by their use and can be used by many individuals concurrently, therefore, maximal access and use should be permitted.

One reason for the widespread pirating of intellectual works is that many people think restricting access to these works is unjustified. Some believe that permitting intellectual property rights are inconsistent with freedom of thought and speech[6]. Hettinger argues that intellectual property “restricts methods of acquiring ideas, the use of ideas and the expression of ideas”. Reply to this view is that a system of intellectual property protection may impose restriction upon access in the short run, but overall, it fosters the creation and dissemination of thought and expression.

There is another argument that information is a social product and enforcing access restrictions unduly benefits authors and inventors. According to this view, individuals should not have exclusive and perpetual ownership of the works that they create because these works are built upon the shared knowledge of society. Against this argument Lysander Spooner wrote “What rights society has, in ideas, which they did not produce, and have never purchased, it would probably be very difficult to define; and equally difficult to explain how society became possessed of those rights.

It certainly requires something more than assertion, to prove that by simply coming to a knowledge of certain ideas—the products of individual labor—society acquires any valid title to them, or, consequently, any rights in them”[7].

Shaykh Muhammad Umar Baazmool, Professor at Umm-ul-Quraa University in Makkah has described the intellectual property rights or copyrights as “al-huqooq al-fikriyyah” or “al-huqooq al-ma’nawiyyah”. He has reported from Abu ‘Ubayd Al-Qaasim ibn Sallaam and others, “From the barakah (blessings) of knowledge is referencing each statement to the one who said it”. We can find many fatwas regarding acceptability of intellectual property rights. Quoting from a book, a magazine, or any other piece of writing is lawful on the condition that the original authors of these writings are cited. Copying others’ writings and presenting them as one’s own thoughts is a kind of plagiarism that is unlawful both in the Shari’ah and in man-made laws. As for using others’ thoughts by way of paraphrasing them and mingling them with one’s own thoughts, there is nothing wrong about that.

This applies also to using religious and scientific opinions and theories, but citing the original thinker or inventor in these cases is also a condition[8]. The commercial name and address (trade mark, research work, and any invention) are the particular rights of their owners. These rights have monetary value.

The Islamic Shari’ah respects such value, so violating them is forbidden. The copyrights, inventions and research work are respected in Shari’ah. So, persons who are liable for these rights may act freely in their rights and violation of their rights is not allowed in any case[9]. Thus, it is clear that the intellectual property rights are recognized in Islam.

The intellectual property laws have profound history in our jurisdiction. Even pre-partition, protection was provided to the Intellectual property rights through certain provisions of Pakistan Penal Code, 1860. It is possible in a given case to initiate criminal proceedings to protect a registered trademark under the provisions of the Pakistan Penal Code.

Under sections 480 to 489, it is an offence to use a false trademark, which offence is punishable by imprisonment and/or fine. Moreover, it is now possible to conduct raids with the assistance of governmental authorities to confiscate counterfeit products provided that the actual proprietor of a trademark establishes its ownership through valid trademark registration or prior honest use.

Then the Merchandise Act, 1889 was promulgated to eliminate unauthorized use of merchandise marks. Later on, in order to provide protection to literary and artistic works, the Copyright Acts of 1911 and 1914 were enacted. Then the protection was provided to the trade and merchandise marks by means of Trademarks Act, 1940.

After the independence, the said laws were made applicable in Pakistan and with the passage of time, the old laws were replaced with new laws. As such, the Copyright Ordinance, 1962; the Registered Designs Ordinance, 2000; the Registered Layout-Designs of Integrated Circuits Ordinance, 2000; the Patents Ordinance, 2000; the Trade Marks Ordinance, 2001; and the Electronic Transactions Ordinance, 2002 were promulgated. Additionally, in order to meet the changing scenario, necessary amendments were also made in the statutes.

The Drugs Act 1976 prohibits any person from selling spurious or counterfeit drugs and the import or export of spurious drugs or manufacture or sale of any counterfeit drug or of a drug under a name other than the registered name, is punishable by imprisonment and/or fine. Specialist courts are empowered to try cases relating to Offences under the Act and under the Drugs (Import and Export) Rules 1976, the Collector of Customs or authorised officer is empowered to detain a suspicious consignment.

Pakistan, being a signatory to Trade Related Intellectual Property Rights Agreement (TRIPS) under WTO has upgraded intellectual property infrastructure in accordance with global trends. By means of Item No. 25 of the Federal Legislative List mentioned in the Forth-Schedule under Article 70(4) of the Constitution, the matters regarding copyright, inventions, designs, trademarks and merchandise marks have been brought within the legislative competence of the Majlis-e-Shoora (Parliament).

More particularly, since 2000, Pakistan has undergone several stages of reforms in the governance structure and enforcement process of IPR. Accordingly, the laws with regard to Intellectual Property i.e. Copyrights, Patents and Trademarks, etc., were updated and certain amendments were brought about in the existing laws. In 2005, the Government of Pakistan took the decision to establish Intellectual Property Organization of Pakistan (IPO) as a focal organization for integrated management of intellectual property and enforcement coordination.

For this purpose, the Intellectual Property Organization of Pakistan Ordinance, 2005 was promulgated and all IP related issues were brought under the umbrella of one organization, namely, the Intellectual Property Organization. As recently as 24 April, 2012, the Intellectual Property Rights Ordinance, 2012 has been promulgated by the President as the Ordinance already in field expired in March whereas the Intellectual Property Rights Bill is pending in the Parliament for legislation. It would have been better, if rather than repromulgating the Ordinance, the Government had enacted the pending bill into an Act of Parliament.

The newly established organization was placed under the direct supervision of the Prime Minister of Pakistan and was attached with the Cabinet Division. The vision of the IPO was “to put Pakistan on the IP map of the world as a compliant and responsible country by promoting and protecting intellectual property rights”. The Mission Statement of the organization was “integrating and upgrading IP infrastructure for improved service delivery; increased public awareness and enhanced enforcement coordination for achieving the goal of being an IP based nation”.

The Federal Investigation Agency, which is mandated to combat and curb white collar crime was tasked to eliminate piracy by bringing the Copyrights Ordinance 1962 within the preview of the FIA Act, 1974. The said Agency started efforts and within one month made crack down on the notorious piracy infrastructure. The Customs department established Anti-Piracy Cells at the country’s major international airports to institutionalize government’s anti-piracy drive. In addition to that, many demand control initiatives were launched by the organization to curb local demand for pirated optical discs.

The measures taken and efforts made by the governmental organizations were highly appreciated worldwide. Inasmuch as, the Petition of International Intellectual Property Alliance (IIPA) of America for withdrawal of GSP concessions on Pakistan’s exports to USA, pending for four years, was attended and disposed of by the US Government; the name of Pakistan was removed from the Priority Watch List by the US Government. Many countries have expressed their interest to develop long term partnership with Pakistan. Significantly, the International Federation of the Phonographic Industry (IFPI), which is working for elimination of global piracy, certified that export of pirated optical discs from Pakistan’s major international airports had been “completely dried up”. The Recording Industry Association of America (RIAA) deeply appreciated the achievements of Pakistan in the field of IP.

It is heartening to mention that by and large necessary legislation has been made about protection of intellectual property rights. The judiciary has also played its role in the enforcement of such laws. The Courts have catered for changing scenario and have always adopted a pragmatic and progressive approach while interpreting various provisions of the law.

Artistic work could have been registered under Patents and Designs Act, 1911 and in order to avoid clash of interests, rights and remedies under Copyright Ordinance, 1962 and Patents and Designs Act, 1911. Section 12 of the Copyright Ordinance, 1962 provides a solution. Copyright does not subsist under the copyright Ordinance, 1962, in any design the moment it is registered under the Patents and Designs Act, 1911.

The matter came up before the High Court of Sindh in the case of M/s ADT Services AG[10] wherein it was observed that law-makers may consider to provide similar provision as regards Trade and Service Marks are concerned by analogous provision and it may be provided that copyright may cease to exist the moment copyright that is capable of registration as a trade mark under the Trade Marks Ordinance, 2001, is registered. … … Such amendment may save many from expensive litigation and at the same time save a lot of Court’s time. The High Court in order to curb piracy and copy culture, till the law was amended, provided certain directions to the Registrar Copyrights, to be followed and complied with while entertaining applications for registration of copyright in any artistic work.

A matter with regard to infringement of trade mark was brought before the Supreme Court in the Roznama Hamdard’s case[11] wherein the petitioner intended to use the name ‘The Daily Hamdard’ for newspaper to be published by it. The respondent, an owner of registered trade mark known as ‘Hamdard’ renowned in the field of Unani medicines, syrups and other goods, assailed the name of petitioner on the ground that it was already publishing magazines and journals under the name and title of ‘Hamdard-e-Sehat’ and ‘Hamdard Naunehal’. The High Court had allowed the suit in favour of respondent and restrained petitioner from using the name. The Supreme Court upheld the decision of the High Court on the ground that such name was deceptive.

In the case of Mehran Ghee Mills[12] the dispute was that applications for registration of trade mark of both the parties were pending before the Competent Authority; the disputed trade mark was in the use of respondent since 1974, while the petitioner had started using the said trade mark since 1996. It was held that the suit was maintainable for the alleged infringement and an interim injunction in favour of the respondent was issued.

The Supreme Court declined to interfere with the order passed by the High Court. While interpreting section 20(2) of the Trade Marks Act, 1940, it was observed that the principle underlying the passing off action is that it is unlawful for a trader to pass off his goods as the goods of another. Such action may be independent as the same may be coupled with infringement. Passing off action is maintainable irrespective of the fact that the trade mark is registered or unregistered. It was further observed, while interpreting section 22 of the Act that infringement is to be decided by comparing and placing the two marks together and then to determine about their similarity or distinctiveness.

In the recent past, various Judicial Conferences, both national as well as international have been organized under the aegis of the Supreme Court of Pakistan and the Law and Justice Commission through the National Judicial (Policymaking) Committee [NJPMC].

In the National Judicial Conference held on 22-24 April, 2011, a thematic session was dedicated on IPR. The participants from within and outside Pakistan gave their valuable input and useful recommendations were formulated. Likewise, courses on Intellectual Property Rights have been arranged for the judges of District Judiciary in the Federal Judicial Academy. Besides, the Intellectual Property Day was celebrated in the Federal Judicial Academy and various seminars were held in that behalf.

I must say that although the legislature and judiciary have been making sincere efforts to curb the evil of intellectual property violations. At this juncture, a strong help and assistance is required from the members of the Bar. They, as also the members of the judiciary, are required to improve understanding of the issue, especially in terms of fast emerging challenges due to rapid growth of electronic mediums.

Before I conclude, I must appreciate the dedication and commitment of the organizers of the WIPO Day 2012, who have made a tremendous effort in making this event successful. I extend my heartiest congratulations to all of them. I am sure they will be making similar contribution in the other activities that may be organized in the future with a view to spread awareness and strengthen the system of administration of justice in the country. I wish you all a safe journey home and success in all your endeavours.

Thank you very much.

For more information, contact:
Shahid Hussain Kamboyo
Public Relations Officer
Supreme Court of Pakistan
Tel: +9251 920 4184
Fax: +9251 920 1001
Email: pro_scp@yahoo.com

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