intellectual property, patents ans copyrights-2

7/29/2019 Intellectual Property, Patents Ans Copyrights-2

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GHULAM MURTAZA KORAI

IoBM


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- Piracy of copyrights

- Counterfeiting of trademarks

- Infringement of patents

- Infringement of designs;


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All types of infringements are prevailing inPakistan: Local production and reproductionin consumer goods, DVDs, CDs, video/audio

cassettes; Local use (the production coversthe great majority of the needs of thecountry); Local sales, there are severalnetworks of well-known distribution

companies; Importation and re-exportationthrough the porous (HAVING MANY SMALLHOLES) borders with Afghanistan, Pakistan,Iran and their ports; Exportation towardsthird-country regional markets.


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There are at least 10 optical discmanufacturing facilities (containing at least25 production lines) in Pakistan with a total

capacity of 230 million discs per year, 205million of which are intended forexportation. Pirate optical discsmanufactured in Pakistan facilities areharming markets in 40 countries world wide(Source: IIPPA 2005 Special 301 Report);Transit towards third-country regionalmarkets.


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In most cases counterfeiters or pirates andtheir places of operation can be identified.In a reported case of pharmaceuticals, the

infringers were registered license holdersfrom the Ministry of Health. In the filmsector, where the precise locations of thepressing-plants are well-known, it has evenbeen possible to identify which DVD plant hasmanufactured certain pirate DVDs thanks tothe use of forensic techniques. In theelectronics manufacturing sector, the sourceof pirated products is known to be China.


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Administrative procedures (police, etc)

37.5% of respondents have undertakenadministrative procedures, in particular bymeans of local investigations and police raids.

Although Pakistan has enacted five major newlaws relating to patents, copyrights, trademarks,industrial designs and layout designs, thelegislation and/or enforcement mechanismsremain lacking. As a result, right holders have

limited faith in the effectiveness ofadministrative procedures, which often createsan attitude of defiance against the Authority andof non-respect of the existing legislation


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Judicial procedures (civil or criminal)

62.5% of respondents have undertaken judicialprocedures, civil or criminal. In certaincommercial cases, judicial procedures arepossible and seem to be effective. Despite longprocedures and bureaucratic hurdles, once adecision is taken by the court, it can beimplemented with immediate effect. However, itshould also be noted that: i) there is a currentban on the import and export of pirated

materials, which is clearly not respected; ii)although courts have issued injunction ordersagainst firms licensed by the Ministry of Health,that sell drugs in violation of patent holderrights, such orders are not consistently enforced;


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Customs procedures: Only 12.5% of respondentshave used customs procedures in Pakistan toreact against the infringement of their IP rights,this is explained by the fact that customs

procedures are usually long and not regular.

Political demarches: 25% of respondents haveundertaken political demarches with localgovernment and ministries as well as with

international bodies such as local embassies, EUCommission and Delegation. This is explained bythe fact that political networks are not verystrong, except for large powerful lobbies.


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Contacts with local (trade, industrial, IP)

associations. 37.5% of respondents have hadrecourse to contacts with local associations,

such as the local industrial property rightsassociation.


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Identification of the competent authorities isgenerally perceived as unproblematic.Availability, capacity and commitment to

treat requests, on the other hand, areconsidered a major issue due to extremelyweak enforcement mechanisms. Forexample, patent theft is exacerbated(tomake something worse especially thesituation)by the fact that it takes often oneor two years to register drugs in Pakistan.


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During the registration process, the governmentalso sets prices often at a level that does notreflect the cost of developing the product. Dueto the large bureaucracy, reaction times are

excessive with very long and complex proceduresinvolved. The official cost of proceedings is notvery high, as opposed to the cost forinvestigations to detect the source and uncover

a complete counterfeit operation. There doesnot seem to be a difference between thetreatment offered to Pakistani and foreigners,however, in most of the cases, the IP problemsoriginate from foreign sources


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The inadequacy of enforcement measures isfurther reinforced by the fact that:- theGovernment has authorized the sale ofpharmaceuticals without requiring confirmation

that no other company has an active patent onthe compound; - Pakistan has not compelled theuse of source identification codes to address theproduction of pirated CDs and CD-Rs; - Pakistaniauthorities neither conduct routine plant raids

on a regular basis nor have imposed deterrentcriminal penalties for organized manufacturingand distribution of pirated and counterfeitedproducts;4- there are few prosecutions andinadequate penalties.


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The types of entities used are generallylawyers, agents/legal representatives andlocal investigators. The use of lawyers isnecessary for a case to be represented in theCourts of law. Availability is generally goodand the level of experience varies betweenexcellent and reasonable.


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The amount of loss is difficult to estimate, butaround 9 million is estimated to be lost by the filmindustry on a yearly basis. Similarly the publishingindustry estimates a loss of revenues of around 10million, equivalent to approximately 80% of lost

revenues due to piracy. The International Intellectual Property Alliance (IIPA)

has estimated the trade losses suffered by UScompanies in 2004 at US$ 12 million (IIPA 2005 Special301 Report). It is also estimated that the government

of Pakistan is losing, in the form of lost taxes/duties,a minimum of 12 billion rupees (around 170 million)per year due to the lack of IPR enforcement in thefollowing categories only: film, music, software,publishing and soft drinks.


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Here again there is no common perception ofadministrative and provisional or temporaryprotective measures, the response varies fromeffective to deficient or available in the law but

not implemented. Measures are effective butgenerally slow, as the administration/policegives it a low priority. Raids and prosecutionswould suffice if they led to effective, deterrentpenalties. Ex parte ad-interim injunction is in

the discretion of the Court. In some cases, thecourts have granted the ex parte ad-interiminjunction whereas in some other cases thecourts served notice to the party before issuingany restraining orders.


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Overall, criminal procedures are seen as eitherdeficient or available in the law but notimplemented. Fines imposed in the courts uponconviction do not act as a deterrent. Out of

hundreds of cases decided in Pakistan in the lastten years, no jail sentence has been given to anyconvict, despite the provision in the law for upto three years. Similarly the law provides forfines up to around 1,400 on a first conviction

and 2,800 on a second conviction; on averagefines imposed do not exceed 35. As mentionedabove, pirate production facilities or sellingoutlets are never sealed, allowing the piracy tocontinue unabated.


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Once more the general perception of customsprocedures is inconsistent ranging from efficientto deficient or available in the law but notimplemented. The 2002 amendment to the

Customs Act, incorporating copyright laws, was amajor improvement. The film industry praisedthe 2004 CBR (Central Board of Revenue)Directive ordering customs officials to intercept

exports at the borders (of non-Pakistanirepertoire). Initially the Directive resulted inimportant seizures of unauthorized optical discs,and fines ranging from US$84 to US$16,860.


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However, lately the overall number of seizuresdropped precipitously and there are reports thatcorruption may have taken hold at KarachiInternational Airport since the CBR Directive was

implemented and that Customs agents may bebribed to allow pirate shipments by aircargoservices as well as couriers carrying pirated

optical discs as hand luggage. In addition,

increasingly, pirates are diversifying their trans-shipment points, from Dubai (UAE) to Belgiumand the Netherlands in order to circumventEuropean customs authorities and free up thepiratical products throughout the EU.


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- IP rights are difficult to administer,proceedings are very lengthy, timeconsuming and costly; - The current backlogin the registration of trademarks is nearly 4to 7 years. Although protection ofunregistered trademarks exists at commonlaw, a registered trademark weighs heavily infavor of the trademark owner in anyproceedings in a Court of Law. Hence timely,speedy registration should be ensured; -Shortage of trained Judges;


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- Existing system of execution of decrees iscumbersome, slow and lacking transparencyleading to the uncertainty of enforcementresults; - Insufficient and ineffective judicialmeasures against pirates, including the lackof deterrent penalties; - Corruption inenforcement agencies as well as in thejudiciary; - Limited will of the government totackle piracy combined with a lack ofawareness, knowledge and training ofgovernment officials.

intellectual property, patents ans copyrights-2

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