SPEECH OF MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, HON’BLE CHIEF JUSTICE OF PAKISTAN
HON’BLE JUDGES OF THE SUPREME COURT,
HON’BLE CHIEF JUSTICE AND JUDGES
OF THE HIGH COURT OF SINDH,
PRESIDENT OF THE PIPRA,
MEMBERS OF THE BAR AND PIPRA,
LADIES AND GENTLEMEN,
It is my pleasure to be with you in connection of celebrating the Intellectual Property Day. The day is being celebrated throughout the world to raise awareness about the role of IP in daily life, to generate public and media interest in issues relating to IP, to increase public understanding about IP and to demonstrate how IP cherish not only arts and music but technological innovation that help to shape our world.
This day is continuously being celebrated since 2001 annually with new themes in pursuance of a decision made in 2000 by WIPO Member States every year on 26th April, the day on which the convention to establish WIPO came into force in 1970.
Intellectual property is defined as such property which is the result of some intellectual creativity or intellectual activity and recognized as such by law. Thus, intellectual property rights can be created in any field of human activity such as literature, art, science, technology, etc. Since the dawn of era of industrialization in the world, mankind has made rapid and consistent advance in the field of art, science and technology. New ideas have evolved, experiments made and inventions created. Such ideas and inventions undoubtedly required high caliber and professional excellence. A lot of human effort and financial assets went into the process of inventing new objects and products. All this activity is for the benefit of mankind and for further advancement in different disciplines and fields of human activity. Ordinarily, the benefit of advancement in science and technology must reach the entire humanity, however, having said so, let it be emphasized that the process cannot go on until some protection and compensation is accorded to the inventor for his or her efforts as well as expenditure incurred thereon. The law of intellectual property rights exactly does that. The intellectual property includes copyright, patents, trademarks and industrial designs, etc.
The Constitution of Pakistan assigns the intellectual property law on the subjects of copyright, inventions, designs, trademarks and merchandise marks to the Parliament, as these are listed in the Federal Legislative List. Pakistan is signatory to certain international conventions on intellectual property rights and has also enacted laws, which from time to time have been amended to make them in tune with current international trends. The laws enacted in Pakistan are in the area of copyright, designs, patents, trademark, etc.
The earliest laws on intellectual property on the statute books of Pakistan are the copyrights law and law relating to patents. These laws were initially promulgated through the Pakistan Penal Code. Subsequently, separate statutes were enacted for the purpose such as the Copyrights Act of 1911 and 1914, followed by the Copyright Ordinance 1962. The law has been subjected to successive amendments to modernize it. The law is still in force. Similarly, Trade and merchandise marks were protected through the adoption of the Trademarks Acts 1940. Earlier, to stop the fraudulent use of merchandise marks, the Merchandise Act 1889 was enforced. This law prohibited the use of marks on goods or merchandise by an unauthorized person. The Trademarks Act 1940 was substituted the Trademarks Ordinance 2001, which is a consolidating law, having extensive and exhaustive application, as warranted by modern developments in the area of trade and business.
The Pakistan Penal Code continuous to provide protection of trademarks, property marks etc, by prescribing punishments, both imprisonment as well as fine, for counterfeiting or selling goods with false trademarks or property marks. Similarly, the patents and designs Act 1911 was another detailed law providing for procedure to apply for grant of patent, specification of patents and granting of licenses, etc. It further provided for registration of designs. This Act was subsequently substituted by the Patents Ordinance 2000, which is the ruling statute in the country together with the Registered Layout-Design of Integrated Circuit Ordinance 2000. These laws were promulgated with a view to meeting the requirements of present-day society.
This year the theme of IP day is “Designing the Future”, an idea to go for ‘new invention’ in general parlance. The meaning of designing may be to shape the things but it has got deep rooted meanings that is to go for innovation and invention, for example from Right Brother gliding like aircrafts to modern sophisticated digitized solar energy driven aeroplanes or from gramophone to modern technological recording devices (DVDs/CDs).
In the era of developing world, and of knowledge, intellectual property has acquired enormous importance. Now, the progress of a nation largely depends on its ability to convert knowledge into wealth through invention. The legal protection of these new innovations encourages the utilization of additional resources, which leads to further economic growth, new jobs and industries and enhances the quality of life.
As such, intellectual property laws protect the creations of human mind. These laws not only give rights to creators or owners to benefit from their own work or investments, but also legally protect the exclusive rights of their creations through legislation and enforcement.
The efficient and equitable intellectual property system can help all countries to realize intellectual property’s potential as a powerful tool for economic growth, wealth creation, social and cultural well-being. The intellectual property system helps to strike a balance between the interests of the innovator and the public at large, providing an environment in which creativity and invention can flourish to the benefit of all mankind.
Intellectual property culture requires strong protection and enforcement mechanism, especially role of enforcement agencies for the protection of the right of the owner. However, we have to remember that the role of the Bar and Bench starts, when the right holder agitates his legal right and knocks at the door of the courts protesting the violation of his exclusive rights. He uses the available remedies both in civil by filling suits for injunction compensation and damages for infringement, and by initiating criminal proceeding against the parties.
IP laws are changing with the requirement of modern era, and as Lord Denning once wrote:
“Law does not stand still. It moves continually. Once this is recognized, then task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time”
Intellectual property laws are giving new issues and throwing new challenges to Bar and Bench and of course enforcement agencies such as compulsory licensing, neighboring right, moral right, internet issues, cyber crimes, domain names etc. these new dimensions, problems and issues come up every day before the Bar and the Bench due to the consistent use of trademarks, patents, copyrights, industrial design, geographical indication, indigenous knowledge, trade secrets, data protection, digital data based information in international trade and economic management.
However, I have no hesitation in saying that our Judiciary is giving equal response to these issues by giving quality Judgments. The Pakistani Judiciary has played a pivotal role in the enforcement of IP rights inPakistan. The Judiciary’s receptive mindset is reflected by the face that the judges have given land mark Judgments and addressed the real issues of IP laws in a very illustrative manner, laying down new principles while interpreting the law, including the cases decided in favour of the foreign multinational companies, keeping in view both the national as well as the international legal scenario prevailing at the particular time. For example the Lahore High Court in case of Insaf Soap Factory vs. Lever Brothers Port Sunlight Ltd (PLD 1959 Lahore 381) has held “that in case of infringement of trade mark the test is whether the unwary purchaser is likely to be deceived into purchasing the goods of the person infringing the trade mark as the goods of the owner of the trade mark….. Not much weight can, therefore, be attached to the few points of the discriminatory between the plaintiff’s and defendant’s wrappers to which our attention has been drawn…. Because the points of similarity in them are so great that an unwary purchaser is likely to deceived in purchasing the defendant’s goods as that of the plaintiff.”
In the Toshiba’s case, (PLD 1991 SC 27) whereby Pakistani firm manufacturing electric fans with a brand of TOSHIBA was not allowed to use the Toshiba Trade mark by holding that it would create confusion and deception to the consumers of such goods and which is against the public interest to register such a trade mark. In JOCKEY case, (1981 SCMR 1039) though there was some ban on the importation of the item manufactured by JOCKEY in Pakistan but its trade mark used by a “Pakistan General Store” was not allowed to be used and it was held that it has dishonestly copied the Jockey’s mark and his application for registration was disallowed. In Alpha case, (PLD 1990 SC 1074) a Pakistani firm was using the trade mark of “Phillips” for its Sewing Machines, a brand of an international limited company and the application for registration by the firm was disallowed on the ground that it would create confusion and deception.
The World Intellectual Property Organization (WIPO) is specialized agency under the auspices of United Nations to coordinates international treaties regarding intellectual property rights. The WIPO consists of 184 member states over 90% of the countries of the world. The member states participate in WIPO to negotiate treaties and set out new policies on intellectual property issues such as patents, copyrights and trademarks. The agreement between the united nation and WIPO notes in article 2 that the WIPO is responsible “for formulating creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development, subject to the competence and responsibilities of the United Nations and its organs, particularly the United Nations Conference on Trade and Development, the United Nations Development Program and the United Nations Industrial Development Organization, as well as of the United Nations Educational, Scientific and Cultural Organization and of for other agencies within United Nation system”
The right to acquire, hold and dispose of property in any part of Pakistan is the fundamental right of every citizen, under Article 24 of the Constitution of Pakistan that no person shall be deprive of his property save in accordance with law. Similarly, Article 260 (1) define “property” includes any right, title or interest in property, moveable or immovable, and any means or instruments of production.
The agreement of Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by WTO that sets down minimum standards for many forms of intellectual property regulations requiring every Member States to meet them. Though intellectual property laws already were in field inPakistan but being a signatory to Trade Related Intellectual Property Rights, Agreement (TRIPs) under WTO,Pakistan required up-gradation of its intellectual property infrastructure in tandem with global trends. Accordingly the existing legislation on Intellectual Property i.e. Copyrights, Patents and Trademarks have been revised laws with the changing needs.
The preservation, protection and equal use of Traditional Knowledge (TK) is being realized through intellectual property systems. This role has recently received an immense attention by the international policy makers, which includes food and agriculture, environment, conservation of biological diversity, health, human rights, indigenous issues and aspects of trade and economic development. The IP laws have been used to protect the misuse of Traditional Knowledge, through the laws of trademarks, geographical indications, industrial designs, and trade secrets. However, certain modifications to intellectual Property law may be needed in this regard. This also led to explore capacity building the use of alternative dispute resolution and vibrant role of the government agencies and other stakeholders. In this regard judgements have been passed by the Courts of different countries that the adaptations of existing IP rights are not sufficient to cater the subject matter. However, in some countries like Peru, Costa Rica, Portugal etc. the intellectual property systems have been adopted through sui generis measures to protect TK.
The Intellectual Property standards requires the suppression of unfair competition laws to protect the integrated circuit layout designs, geographical indications, undisclosed information and test data, and phonograms. Similarly, IP standards should also respect the customary laws, practices and guard the improper disclosure. Another important area is to prevent third parties from obtaining or exercising invalid Intellectual Property rights over the Traditional Knowledge through defensive steps. The main objective of the defensive protection is to ensure that existing TK is not patented by the third party.Pakistan possesses wide potential to exploit this sector and gain benefits through the commercialisation of its Traditional Knowledge-base products.
In order to deal with the newly emerging issues in the light of global perception, we have to work very hard. Our bar associations and also like PIPRA should arrange training courses on IP laws especially on new IP areas. Now it is the time the associations should work actively instead of performing their role of conventional associations. In the same manner continuing Judicial Educations to Judges on these issues should also be very important.
In the three day’s National Judicial Conference held on 22-24 April, 2011 under the auspicious of National Judicial (Policy Making) Committee (NJPMC) the subject of intellectual property rights, keeping in view its importance in view of new developments relating to the intellectual property disputes and cases, had included for the first time as one of the topic and at the conclusion certain recommendations were formulated which were presented before the house in the concluding sessions of the conference and it was included in the final declaration to the effect that:
“Plagiarism and counterfeiting should be treated as theft, deception and robbery. This calls for a review of our ethical attitudes towards the IPR Laws among the general public and the intellectual property owners by all available means. Counterfeiting medicines, syringes, health care devices, diagnostic kits, and to her related medical equipment should be declared serious offences against humanity with enhanced punishment.”
This week we are also holding the Intellectual Property Course for the Judges of the district Judiciary in the program “Sharing of Judicial Experiences-Intellectual Property Rights/International Commercial Arbitration” with the Pakistan-U.S Cooperation organized by Commercial Law Development Program (CLDP) of the U.S.A and the Judges, Attorney of US Patent and Trademark office (USPTO) and Intellectual Property Law Enforcement Coordinator, US Department of Justice (USDOJ) have come as resource persons in the program. In the academy on 26th April the Intellectual Property day was also celebrated by holding seminars whereby the papers were read by the prominent people having expertise in the Intellectual Property Right.