AFTER a long debate on the merits of special courts for cases related to intellectual property, Pakistan has finally established IP tribunals. From September 8, we have entered a new phase of IP protection.
Since the country’s IP laws were updated in the early 1990s, IP practitioners have been asserting the need for specialised judges who could focus on and understand the technical complexities that are inherent under IP law.
In the absence of a specialised judiciary, the protection being provided was rather weak. It was dependent upon the intelligence and expertise of individual judges rather than a structured system. It is not individual judges who can help the IP regime; there must be a judicial system that is firmly rooted in the technical nature of these laws.
This basic reason for special judges — that IP laws need careful technical attention — was enough to call for separate, specialised tribunals. In the distant past, the Trademark Registrar — even when the office was not part of the larger umbrella of the Intellectual Property Organisation of Pakistan (IPO) — had magisterial powers.
But a proper tribunal has more impartiality in handling all IP-related cases, not just those dealing with trademarks.
Over the past three decades, copyright has become a major commercial concern that is not just limited to poets, authors and artists, but covers software developers, filmmakers and media houses. Big businesses are now more interested in the protection of various copyrights and want a course of action where experts can ensure justice is done in even the most complex of cases.
Patents were already an important issue in Pakistan and most of the patent claims clashed with local interests. A sincere and thorough understanding of the law, science and technology, and local and international best (and worst) business practices were always needed.
Many countries, including the United Kingdom, have shown that such a tribunal is a good halfway-point between expert judges and separate specialised courts. They have divisions within regular courts that deal specifically with IP cases.
Many countries, including the United Kingdom, have shown that a tribunal is a good halfway-point between expert judges and separate specialised courts. They have divisions within regular courts
The law that has established IP tribunals in Pakistan — the Intellectual Property Organisation of Pakistan Act 2012 — clearly states in clause 18 (1) that “all suits and other civil proceedings regarding the infringement of intellectual property laws shall be instituted and tried in the (IP) Tribunal”. And clause 18 (2) states that the tribunal “shall have exclusive jurisdiction to try any offence under intellectual property laws”.
This makes the tribunal very important for the IP community as well as for anybody who owns, trades in, or uses intellectual property.
What is most important is the question of who shall be appointed presiding officers for these tribunals. We have had very bad experiences in various IP departments where important offices have been held by people with little knowledge of IP law. Even the IPO has admitted that it is difficult to attract honest and proficient candidates to these posts within the present budgeting restraints.
The two appointments made so far — a district and sessions judge in Lahore and the former registrar of copyrights and trademarks in Karachi — deserve praise. Clause 16 (4) of the law states that no person shall be appointed a presiding officer of a tribunal unless he has been a judge of a high court or a district and sessions court, or is an advocate qualified for an appointment as a judge of a high court.
Nevertheless, we must consider how a presiding officer with experience limited to one aspect of law, i.e. copyright, trademark or patent, would be able to deal with the variety of situations that he or she may face in this capacity.
Moreover there are thousands of trademark, copyright and patent cases pending in all provinces and all of them will be sent to IP Tribunals; how come a single judge can handle old and new cases.
Inherent bias can also not be ignored, but if all cases are to be heard by a single person, the development of the law will suffer and will likely consolidate a single point of view in an otherwise dynamic nature of work.
Furthermore, there is always a question of credibility in cases where responsibility and authority is to be given solely to one person for a period of three years. In litigation proceedings in regular courts, this is never a problem.
While the judges may not be qualified to handle IP cases, on the flipside, a case is not stuck with them for a significantly long period of time. In the incumbent IP tribunals, a lot of the decisions would be dependent on the sole discretion of one official, who will not be a judicial appointee but a nominee of the executive.
A strong standard and mechanism for scrutiny must be put in place to ensure that if the government will have only one tribunal per province, its rules to appoint presiding officers should be based on the wisdom acquired from past experiences and exposure.
Apart from Islamabad, there are cases in Peshawar and Quetta that require the establishment of tribunals there as well. The number of judges with good understanding of the IP law is not encouraging. Where will the government acquire at least six presiding officers every three or six years to head its IP tribunals?
Without a doubt, IP practitioners are the most qualified to take decisions on legal matters related to copyrights, patents, trademarks, industrial design and trade secrets.
Clause 16 (4) (c) of the law offers the government a possibility to look for IP practitioners who have taken care of public IP interests. Unfortunately, government offices are not a likely source for such persons. These people would essentially be private practitioners: IP attorneys with longstanding and impeccable reputations.
Some senior IP practitioners fall in this category and it is time that we let such luminaries play their due role in the establishment of a worthy IP institution.
It has always been our hope that specialised IP courts would be established in the country. However, we will instead be getting IP tribunals. We still hope that this will be a step in the right direction and go some way in ensuring that justice prevails, leading to economic development and prosperity.
The IP regime needs to establish itself as a legitimate, efficient and effective institution.
The writer is an attorney at law
Published in Dawn, Business & Finance weekly, November 16th, 2015