WHAT IS INTELLECTUAL PROPERTY LAWS

   

INTRODUCTION TO IPRs

Intellectual Property Right is the most ccontroversial issue that divides the developing and developed World in scenario of global free market economy.

Application of IPRs are moving forward from inanimate machines to micro-organisms, plants and now to human cells.

1. Trademark

2. Patents3. Industrial

Design 4. Layout – Design

of integrated circuit

5. Copyright

* Allied Intellectual Property* Industrial Property Laws* Intellectual Property Laws

OVERVIEW OF THE INTELLECTUAL OVERVIEW OF THE INTELLECTUAL PROPERTY LAWS IN PAKISTANPROPERTY LAWS IN PAKISTAN

 LEGISLATION ON IP LAWS

  TRADEMARKS ORDINANCE 2001Trade Marks Act 1940 (No. V of 1940) Revised Trade Marks Rules, 1963.Trade and Merchandise Marks Act 1889.

  Related LawsRelated Laws Drugs Act 1976.Pakistan Names and Emblems (Prevention of Unauthorized Use) Act 1957 (No. XXVII of 1957).The Customs Act 1969 (Act IV of 1969).The Pakistan Penal Code (Act XLV of 1860)(Sec. 478 to 489)

2). CopyrightsThe Copyright Ordinance 1962 as amended by Copyright Ordinance

2000The Copyright Rules, 1967.The International Copyright Order 1968.The Copyright Board (procedure) Regulations, 1981.

3). PATENTS & DESIGNSPatents Ordinance 2000Industrial Designs Ordinance 2000Registered Layout Designs of Integrated Circuits Ordinance, 2000Patents and Designs Rules 1933.The Secret Patent Rules 1933Related LawsDrugs Act 1976.The Customs Act 1969 (Act IV of 1969).The Pakistan Penal Code (Act XLV of 1860)

DEFINITION

1). TRADE MARKi).Means any mark capable of being represented graphically which is capable of distinguished goods or services of one undertaking from those of other undertaking.ii). “Mark” includes, in particular a device, brand, heading, label, ticket, name including personal name, signature, word, letter, numeral, figurative elements, colour, sound or any combination thereof.iii). “ Goods” means anything which is subject to trade, commerce or manufacture.

2). COPYRIGHTS

I. Copyright refers to a body of exclusive rights that project the words of authors and other creative persons against copying or unauthorized public performance.II. Copyright generally extends to original works of literary, dramatic, musical, pantomime choreographic (dance) pictorial, graphic or sculptural, other categories include motion pictures and other audio visual works, sound recordings and computer programmeUSA 1790 Congress passed Federal Copyright Act Wheaton Vs Petors (1834) USA-SC ruled that all published work had to comply with federal statue to be protected, un published work could be protected under state copyright Act.In 1980 US Government passed Computer Software Act which further amended in 1984.

3). PATENTS INDUSTRIAL DESIGN, LAYOUT DESIGN INTEGRATED CIRCUIT

i). Patents: Patent gives a monopoly right to patentee to exploit the invention for a period of 17-20 years.ii). Design: Means features of shape, configuration pattern or ornament applied to an article by any industrial process or means, being features which in the finished article appeal to and are judged solely by the eye, but does not include a method or principle of construction or features of shape or configuration which are dictated solely by technical and functional consideration.iii).Layout designs of integrated circuits:a). Integrated Circuit: means a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in or on a piece of material which is intended to perform an electronic function.

b). Layout Design: means a three dimensional disposition, how so ever expressed of the elements at least one of which is an active element and of some or all of the interconnection of an integrated circuit or such a three dimensional disposition prepared force integrated circuit intended for manufacturer.

ADMINISTERING MINISTRIES○ The Trademark Registry is with the Federal Ministry of Commerce.○ The Patent Office is with in the Federal Ministry of Industries.○ The Copyright Registry is within the Federal Ministry of Education.

SOURCE OF INTELLECTUAL PROPERTY LAWS 

At the time of partition, the laws relating to IP which were in force in the country at that time continued to remain in force in Pakistan. These Laws included the :-

1). Patent and Design Act 19112). The Trademarks Act 19403). The Copyright Act 1914

○ The first two enactments with some amend- ments remain intact to this country till 2000

but the Copyright Act has been supersede and

replaced by Copyright Ordinance 1962.

 

Copyright Law is a branch of that part of the Law .ٱwhich deals with the rights of Intellectual creators. Copyright Law deals with particular forms of.ٱcreativity, concerned primarily with mass communication. The purpose of the granting of a Copyright is to.ٱfoster originality in literary production. The goal of the Copyright law is to encourage.ٱcreation of , and facilitate public access to, works of intellectual interest to society. ,When an author releases a literary or artistic work.ٱhe exposes his personality and reputation to public perusal. A author, therefore, desires legal protection not only for his work’s economic value, but also for the value of his artistic reputation expressed within his work. Copyright thus deals with the rights of intellectual.ٱcreators in their creation. Copyright protection is above all one of the means of.ٱpromotion, enriching and disseminating the national cultural heritage.

COPYRIGHT

TRADEMARKS  The Primary and proper function of a Trade .ٱMark is to identify the origin of the article to which it is affixed. A Trade Mark also allows the consumer to make an informed choice. A Trademark must reflect a certain .ٱoriginality in respect of the goods it identifies. When a Trademark is favourably known it will have a considerable monetary value. A well-maintained Trademark, by ensuring .ٱthe high and consistent quality of goods to which it relates, and by performing a clear distinguishing function, discourages invitation by inferior competitors. It help to protect consumer’s interest as well as those of the owner of the Trademarks.

PATENTS

ٱ The grant of a Patent entities the inventor to make, use or sell his invention for a limited period of time as a reward for the disclosure of his invention..ٱ The inventor furthermore gets the monopoly under which he can derive a benefit commensurate with the economic worth of his invention..ٱ The Patent system fosters the spirit of inquiry and creative thinking by dissemination of technical knowledge and by encouragement of inventors.

LITIGATION

Case study (IPR) in Pakistan the tradition .ٱfor the protection of these rights has not developed as mush in Pakistan as in some other countries which are more advanced in technology and industry. The factual position is that the amount of .ٱlitigation is the area of Copyright and Patents and designs is very small indeed. For instance, during the period of 52 years since 1947Copyrights 12 (Superior Court HC, SCP)Patents/Design 30 The position of Trademark in this respect is .ٱhowever, much better, a fairly large number of cases of Trademark have come up for adjudication before the Superior Courts.

B). MEMBERSHIP OF INTERNATIONAL TREATIES AND CONVENTIONS 1). Multilateral Treaties i). WTO

World Trade Organization (WTO) WTO formally known as GATT, established in 1948, GATT was the multilateral instrument that laid down agreed rules for inter-trade until 1995.

It functioned as the principal international body concerned with negotiating the reduction of trade barrier and other measures which distort competition and with international trade relation.1.       The WTO agreement contains some 29 individual legal texts covering every thing from Agricultural to Textile and clothing and from services to subsidies and trade related intellectual property rights (Trips).2.       Added to these are more than 25 additional Ministerial Declarations, decisions and understandings spelling out a series of obligations and commitments for WTO members.

ii). WIPOWorld Intellectual Property Organization (WIPO)

On 01.01.1996, a Cooperation Agreement between WTO & WIPO entered into force. It provides for cooperation concerning implementation of TRIPS Agreements such as Notification of laws & regulations, legal assistance and technical cooperation in favour of developing countries. WTO will only monitor the implementation of TRIPS Agreements but all implementation work will be carried out by WIPO.

WIPO’S EVOLUTION ○. In 1974, WIPO became a specialized agency of the United Nations systems of Organization. WIPO’S STRUCTURE 

○. 179 members (countries) i.e. more than WTO

○. 859 employees from 86 countries for its secretariats.

○. Main Decision-Making bodies of member states:1. General Assembly2. Conference coordination Committee.

○. 678 Million Swiss Francs budget for 2002-2003○. Administers 23 Treaties:

16 Treaties on Industrial Property06 Treaties on Copyright01 Treaty/Convention establishing

WIPO○. WIPO has a Dispute Settlement System to resolve disputes between/among members through its Arbitration & mediation Centre.

○. This centre maintains a list of over 800 mediators or arbitrators from over 70 countries, who conduct dispute resolution procedures according to rules set up by WIPO. An on-line system is also available for this purpose.

○. WIPO is running certain development and training programmes to assist the members in capacity building, provides legal assistance and training facilities to the nationals of members to be able to adopt TRIPS Agreement.

○. Just in 1999, 14000 men and women from 125 Developing countries benefited form more than 200 courses, seminars and other meetings held under WIPO’s cooperation for development programme.

iii). TRIPSTrade Related Intellectual Property Rights (TRIPS) This is an Agreement and is part of the Multilateral Agreements of the World Trade Organization signed in April, 1994 at Marakash, establishing WTO w.e.f. 1st January, 1995. As the multilateral Agreements are “Single Undertaking Agreements”, therefore, they are binding on all member states from the effective date, i.e. 01.01.1995 or the date they join WTO. Developed countries were given one year transition period i.e. up to Jan, 1996, Developing countries were given FIVE years transition period and Least Developing Countries were given ELEVEN years transition period to bring their legal systems in conformity with the TRIPS Agreement. This implies that all WTO members are bound to provide IP protection latest by 01.01.2005.

COVERAGE UNDER THE AGREEMENT Agreement covers the following distinct types of intangible property for which collectively term “INTELLECTUAL PROPERTY” has been used: ●Copyrights○. Parties are required to comply with substantive provisions of the Berne Convention for the protection of literary and artistic work.○. It means that computer programmes will be protected as literary works under the Berne Convention and lays down what data basis should be protected by Copyrights.

● Trademarks○. Marks that have become well know in a particular country shall enjoy additional protection. ● Patents

○. Inventions may be excluded from patentability if their commercial exploitation is prohibited for reason of public order or morality. (Govt. may refuse to issue a patent in this case)

○. Diagnostic, therapeutic and surgical methods are excluded from patentability.

○. Plants and animals (other than micro organisms) and biological processes(other than microbiological processes) for the production of plants or animals, if excluded from patentability, the Agreement requires member countries to provide protection under Sui Generis System (by year 2000 in case of DCs).

○. Detailed conditions are laid down for compulsory licensing or governmental use of patents without the authorization of the patent owner (Article 31).

The Layout Designs [Topographies] of integrated circuits: 

○. The rights must extend to Articles incorporating infringing layout designs, innocent infringers must be allowed to use or sell stock in hand or ordered before earning of infringement against a suitable royalty. 

Undisclosed Information [including trade secrets and test data] ○. Trade secrets and know how, which have commercial value, must be protected against breech of confidence and other acts contrary to honest commercial practices.○. Test data submitted to governments in order to obtain marketing approval for pharmaceutical or agriculture chemicals must also be protected against unfair commercial use.

2). Bilateral Treaties (only in respect of Patents and Designs) Reciprocal Arrangement between Pakistan and the United Kingdom, effective from August 14, 1947, 1947; between Pakistan and New Zealand, effective from August 14, 1947, between Pakistan and Australia, effective from August 14, 1947, between Pakistan and Sri Lanka (Ceylon), effective from September 17, 1951 and reciprocal Agreement for the mutual protection of inventions between Pakistan and Canada, effective from April 16, 1958.

LAW OF THE LAND ON IP LAWS 

. Section 54 of the Specific Relief Act, 1877 specifically recognizes Patents, Trademarks and Copyright as being property. 

. The law does not permit one to appropriate for himself what has been produced by the labour, skill and capital of another. This is the very foundation and philosophy of Intellectual Property laws. (Intellectual theft).

Prohibits registration of identical or nearly resembling marks in respect of same goods or description of goods in respect of which the prior mark is registered. Provides that no trademark nor a part of a trademark shall be registered which is likely to deceive or cause confusion.  Provides that registration is to be "prima facie" evidence of validity. Provides that registration is to be conclusive as to validity after 5 years so that the plaintiff is entitled to sue for infringement without being liable to prove user.

REMEDIES

Sec. 46, 47, 48 (1) (2) (3) (4) JURISDICTIONNo suit for infringement of trade mark or otherwise relating to any right in a trademark shall be instituted in any court not inferior to district Court having jurisdiction to try the suit (Sec.117 trademark Act 2001)

a). Civil: Injunction against infringement and damages.b). Passing Off actionc). Criminal: Confiscation of goods through police raid, fine and imprisonment.

(Judicial Magistrate first class)

GENERALa). Use of trademark for

Export tradeb). Assignmentc). Licenses/Registered

User.d). Character

Merchandising. Pertains to cartoon series, films, books, magazines Multi Billion Dollar International Business Characters may be real or fanciful.

REAL FANCIFULKojak, The Saint, James Bond, Lady Diana, Elvis Presley

Lion King, Teenage, Mutant Ninja Turtles, Superman, Batman, Hercules, Pokemon, Mickey Mouse

Walt Disney Farooq Qaiser(Uncle Surgam)

COPYRIGHTS Works in which copyright subsists:  (a)  original, literary, dramatic, musical and artistic works; (b)  cinematographic works; and(c)   records. Copyright subsists if

i)     in the case of a published work, the work is first published in Pakistan, or where the work is first published outside Pakistan, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of Pakistan or domiciled in Pakistan.

ii) in the case of an unpublished work other than an architectural work of art, the author is at the date of the making of the work a citizen of Pakistan or domiciled in Pakistan; and iii) in the case of an architectural work of art; the work is located in Pakistan. iv) effect of International Copyright Order, 1968. By incorporation of deeming clause, any work published in any Member Country shall be deemed to be first published in Pakistan as well.

"Literary work" includes works on humanity, religion, social and physical sciences, tables and compilations; and computer programmes. "Dramatic work" includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise."Musical work" means any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced;"Artistic work" means:

i) A painting, a sculpture, a drawing (included a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;ii). An architectural work of art; andiii). Any other work of artistic craftsmanship; "Cinematographic work" means any sequences of visual images include Video Film of every kind recorded on material of any description (whether translucent or not), whether silent or accompanied by sound, which, if shown (played back, exhibited) conveys the sensation of motion "Record" means any disc, tape, wire perforated roll or other device in which sounds are embodied so as to be capable of being reproduced therefrom, other than a sound track associated with a cinematographic work;

"Author" means:  i)  in relation to a literary or dramatic work, the author of the work; ii)      in relation to a musical work, the composer;iii) in relation to an artistic work other than a photograph, the artist;iv). in relation to a photograph, the person taking the photograph;v). in relation to a cinematographic work, the owner of the work at the time of its completion; andvi). in relation to a record the owner of the original plate from which the record is made, at the time of the making of the place;

First owners a) author Exceptions1). for literary, dramatic or artistic work for publication in newspapers magazines made in the course of employment, the proprietor unless their is a contract to the contrary. 2) For painting, photograph, portrait, engraving or cinematographic work made for valuable consideration at the instance of a person, that person, in the absence of contract to contrary.3) Work made in the course of employment under a contract of service, the employer, in the absence of any contract of service. 4) In the case of Govt., Govt., shall in the absence of agreement to the contrary.

ASSIGNMENT a) Present workb) Future workc) Must be written. DURATION1) Literary, dramatic, musical and artistic works published within the life of author .Through out the life of author + 50 years next after the death of author. 2) For posthumous work

50 years after first publication 3) Cinematographic, records

50 years after first publication. 

4) Anonymous and pseudonymousFor literary, dramatic, musical or artistic work - 50 years publication.On disclosure of author's identity before expiry of said period 50 years after death of author. 5).Published editionsProtection to typographical arrangement for 25 years after publication.

LICENSES 

a). Voluntaryb). Compulsory

 Registration Rectification Copyright Board International Copyrights

CERTAIN ACTS NOT TO BE INFRINGEMENT OF COPYRIGHT. a) a fair dealing with a literary, dramatic, musical or artistic work for the purpose of:  i) research or private study;ii) criticism or review, whether of that work or of any other work;b) a fair dealing with a literary dramatic, musical or artistic work for the purpose of reporting current events: (i) in a newspaper, magazine or similar periodical, or(ii) by broadcast or in a cinematographic work or by means of photographs;c) several others.

PIRACY Lord Denning, one of the most illustrious Judge to sit on the English benches, remarked in the case of Rank Films Vs. Video Centre [1980] 2 All ER 273 at page 277 as follows: 

"'It is, it is a glorious thing, to be a Pirate King', said W.S Gilbert (The Pirates of Penzance). But he was speaking of ship pirates. Today we speak of film pirates. It is not a glorious thing to be, but it is a good thing to be in for making money. Film pirates plunder the best and most recent cinema films. They transpose them on to magnetic tape and then sell video cassettes on the black market….To allow wrongdoers to take advantage of their wrongdoing in this way is an affront of justice itself…. If this illicit traffic is to be stopped, strong measures are needed …."

Is all copying Copyright Piracy? 

a) Copying of Ideab) Common Sourcec) Fair dealing for the purposes of study, research and criticism

. Exclusive Marketing Rights. . Micro-organisms per se and micro-biological processes or the products of such processes are also patentable. . Novelty requirement has been extended from local to worldwide. . Compulsory licences. . Second medical use has been made patentable.

CONCLUSION AND ANALYSIS IP rights are private rightsunless the right holders agitates the right forum, his rights will not be protected. Whenever the IP owners have asserted their rights by flexing their muscles and bringing out well planned, prepared, prosecuted and pursued judicial proceedings (4P rule) their rights have been upheld and adequately enforced by the authorities.