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INTELLECTUAL PROPERTY CRIMES IN PAKISTAN

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INTELLECTUAL PROPERTY CRIMES

IN PAKISTAN ARTICLE

The rationale behind the protection of intellectual property rights is diverse in nature. Trademark protection enhances the level of transparency by providing the opportunity for the identification of the producer or licensor of that particular product. Patent protection causes the rise in research and innovation by providing a protection layer to investments without keeping the inventions a secret. Copyright protection encourages creativity by allowing the commercialization of creative works without the fear of being copied. Above all these arguments for IPRs, they are also considered an expression of the moral right of the creators towards their creations.
The international harmonization of intellectual property law started in the late 19th century with the 1883 Paris Convention for the Protection of Industrial Property and the 1886 Berne Convention for the Protection of Literary and Artistic Works. The United International Bureau for the Protection of Intellectual Property (BIRPI) was created in 1893 to administer these two treaties. It evolved into the World Intellectual Property Organization (WIPO), which was founded in 1967 and became a specialized United Nations agency in 1974. A very important development for the global protection of IPRs was the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which established a minimum standard for IPRs in the member states of the World Trade Organization (WTO). Within this minimum standard is the requirement to criminalize trademark and copyright infringements on a commercial scale. This criminalization requirement makes the TRIPS Agreement the first global IP treaty that goes beyond private law and emphasizes the public interest through the use of criminal law. Therefore, TRIPS is not only a trade agreement but also the foundation of a prohibition regime. International negotiations about IP rights continued after the TRIPS Agreement. Examples include the 2001 Doha Declaration on the TRIPS Agreement and Public Health, several bilateral and regional agreements, and the Anti-Counterfeiting Trade Agreement (ACTA), which was opened for signature in October 2011 and was rejected by the European Parliament in July 2012. General issues in the international IP debate include higher penalties for Intellectual property crimes and the balance between private IP right s and the public interest, especially when it comes to patents on pharmaceuticals and life forms. There are also concerns about the fair use of digital products, the liability of the internet industry for the exchange of digital products over the internet, and the trade of tangible goods through internet trading platforms (Amazon.com). Transshipment issues arise in cases where the IPR protection differs in the country of origin, destination, and transshipment. While these debates continue, the largest obstacle to IPR protection today is not the law but the lack of law enforcement. Intellectual property. IP crime is not a high priority for most law enforcement agencies around the world. As resources for specialized training or even specialized units are limited, most law enforcement agencies prioritize crimes that are considered more severe, such as drug trafficking, human trafficking, and terrorism.
Previously different scholars introduced the concept of the (IPRI), another very popular indicator used to compare intellectual property enforcement worldwide. IPRI is designed to serve as a barometer of property status worldwide. It is mostly taken as the most accurate and comprehensive comparative study of IPRs protection. The authors analyzed the property literature to structure the comprehensive nature of this issue. The Trademark Protection provides insights regarding preventive measures and mechanisms adopted in any country under their existing rules and regulations. The Legal Environment (LE) and Political Environment (PE) components provide insight into the impact of political stability and the rule of law in a particular country. Therefore, the measures used for IPR are broad in scope. The authors of this index believe that this component is important for advancing laws and protecting physical and intellectual property rights. The other two components of the index, physical property rights (PPR) and intellectual property rights (IPR) reflect two important forms of property rights to a country’s economic development. Factors included in these two categories take into account both legal rights and the de facto consequences of the countries analyzed. In developing countries, a set of reasonable trademark-related empirical studies have been conducted, which are transparently showing the significance of their activities to the rest of the world. A lot of research has been done on intellectual property protection, but little emphasis was given to trademark protection research.
Pakistan was ranked in 108th position in 2011 and moved to the 111th position having a 4.211 score with an annual change of 0.069 in 2021. At this time, its position and score were not improved significantly. The best places in the ranking Pakistan recorded in 2011, 2014 and 2015 place. The findings of the results suggest that a well-defined legal system should be organized for the right protection of trademark, and also the implementation of rules related to trademark protection are crucial for bringing change in the attitude of the whole society members. The selling of counterfeit goods from producers to buyers should also be discouraged to strengthen the mechanism of the trademark protection system. It suggests that the court system in Pakistan is inefficient and subject to delays. Corruption may be present, and the judiciary, in many cases, can be influenced by government decisions.
Firstly, the minimum standard requirement to criminalize trademark and copyright infringements of a commercial scale is given in (TRIPS Art. 61). This criminalization requirement makes the TRIPS Agreement the first global IP treaty that goes beyond private law and emphasizes the public interest through the use of criminal law. Therefore, TRIPS is not only a trade agreement but also the foundation of a prohibition regime. International negotiations about IP rights continued after the TRIPS Agreement. Examples include the 2001 Doha Declaration on the TRIPS Agreement and Public Health, several bilateral and regional agreements, and the Anti-Counterfeiting Trade Agreement (ACTA), which was opened for signature in October 2011 and was rejected by the European Parliament in July 2012.
Secondly, Pakistan became a member of the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol) on June 24th, 2021. Meaning thereby that now with the filling of a single international application in one language with the World Intellectual Property Organization (WIPO), protection of Trademarks in more than 100 countries is guaranteed. This protection is convened by the Switzerland international registration system located in Geneva. In other words, this would also mean that infringement of Trademarks in any of these 100 or more countries will bring about the wrath of the international community in the shape of fines and lawsuits hence declaring it a transnational crime.
Thirdly, Pakistan is lacking the legal framework necessary to address IRC. Policy-wise, the national laws of Pakistan had been brought in line with the TRIPS agreement yet there are gray areas. Article 10 of the TRIPS Agreement has not been incorporated into the national laws of Pakistan in its full letter and spirit. According to it, there are two types of subject matter that need protection; first is the source code or object code and the second are databases. Under the Berne Convention (1971) in knowledge-based economies, these two types must be protected by IPR. Article 10.1 of the TRIPS Agreement regarding Computer Programs says that a source code or an object code shall be protected under Berne Convention[1]. This also means that if in the future legal frameworks of Pakistan recognize infringement of software/database etc., as an offence, then the protection of such rights would have limitations similar to literary works have under the TRIPS Agreement. Evidence-based policymaking proves that decisions are improved when they are informed and based on rigorous and accurate scientific data. National laws of Pakistan in lieu of IPRs had been a submaximal effort on the part of parliamentarians and lawmakers to bring them in line with the TRIPS and other international laws protecting IPRs. Disregard for evidence-based information on Pakistani culture and society by policymakers created a void of ecological validity in the legal framework. Gehrke explains this very typical form of technical bias problem that could cast significant doubt on public engagement. The second form of bias commonly seen in policy is the issue bias according to Leir, S., & Parkhurst, J. Issue bias is where evidence utilization shifts political debates to particular questions or concerns in a non-transparent way. The legal framework and policy of Pakistan is fraught with these two types of biases resulting in the lacunas mentioned above.
The powerful, unprejudiced and effective IP laws implementation attracts innovation and new investment whereas the weak implementation of intellectual property laws promotes piracy and counterfeiting and consequently acts as a major barrier to investment in R&D, employment, trade and overall growth of a country’s economy. This is, unfortunately, the case with the IP laws implementation in Pakistan. The major finding of this study along with above-mentioned data depicts that the IPRs protection index of Pakistan, ranging from the period of 2011-2014, got a lower score of 4.1 and did not perform well as evaluated by International Property Rights Index (IPRI). Therefore, Pakistan globally ranked at numbers 108, 109, 115, and 86 respectively. It also indicates that the global ranking improved in 2014 as the global rank was recorded at 86th number, which meant that IPRs protection was improving gradually in that time span and that the IPRs protection was appropriate at that time period. The foremost hassle for Pakistan is the implementation of this system. Enforcement of IPRs legal guidelines stays a critical hassle in Pakistan. There exist significant structural and institutional impediments that undermine powerful IPRs enforcement. These consist of a loss of coordination amongst authorities, and agencies, inadequate assets for enforcement, nearby protectionism, and a loss of judicial independence. Administrative IPR enforcement, including raids and seizure of infringing goods, usually consequences simplest in brief slowdowns in production; consequences aren’t enough to discourage repeat offenders. Criminal prosecutions that can have a deterrent effect are rare. There also are problems in prosecuting civil IPR cases, consisting of pretty low harm awards, the dearth of a sturdy machine for the discovery of proof, the sporadic utility of contempt citations for uncooperative or cheating defendants, a green judiciary, and laborious necessities for the usage of proof from abroad. However, there are a few pros and cons of development in IPRs enforcement, in particular with recognition to courts in remote areas of Pakistan. Despite the truth that the evaluation of the safety of belongings is considerably exclusive in analyzed scores, it may be said that the general evaluation of highbrow belongings rights safety in Pakistan continues to be very terrible and unsatisfactory. Some authors stated that the issues with the dearth of recognition of belongings rights consequences from records and unique attitudes in the direction of highbrow belongings.
The article’s main aim was to provide insight into the IPRs protection provided in Pakistan. To do that, the legal basis of this protection was shown, and then the final results of rankings that evaluated the protection of IPRs were shown and described in Table No. 1. It is worth noting that Pakistan has established IP rights and is protecting these rights by following the guidelines of the Western and American legal systems. The most serious issue for Pakistan is that the IPRs law is not being properly implemented. History and culture may undeniably explain some aspects of Pakistani business and everyday life. However, this cannot be the only explanation. Other reasons are greedy human behavior, lucrative profits and a high level of corruption while selling pirated goods in the market. The need to protect IPRs stems from human freedom and human rights and is not directly related to economic growth and development.

The writer is a member of Anti-Drug Task Force Punjab. mianmajid582@gmail.com

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