Note: The Josh and Mak LLP team is now publishing working papers on energy law, as well as other legal subjects. Below is one of our first few publications. Your comments are more than welcome.
© Copyright Notice Josh and Mak LLP (UK)
All rights reserved. You may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the content of this paper, in whole or in part, save as hereinafter provided. The statements contained herein are statements of opinion of the writer only and not the statements of Josh & Mak Legal Research Litigation and Drafting Services its officers, employees or agents. To the fullest extent permissible by law, Josh and Mak LLP UK hereby excludes liability for the truth or accuracy of any information provided herein.
Please Note: The following paper has been published in the Pakistan Supreme Court’s Digest for the Annual Judicial Conference in 2011 after being presented at the same conference in April 2011.
Intellectual property laws in the Pakistani cyberspace: Barriers to implementation
By Barrister Aemen Zulfikar Maluka
The Author is the CEO of Josh and Mak LLP (UK).She is a Barrister from the Lincolns Inn and has a Master of Laws Degree from the University of London in Corporate and Communication laws and another Masters in Oil and Gas Law from the University of Aberdeen.
In 1999 when in a conceptual paper about the application of IP and other commercial laws to the Internet, Lawrence Lessig spoke of internet law being perceived as, “the law of the horse”, he was looking at the extreme intangibility of the network of networks, something that could not be seen or touched and yet manifested itself strongly in our daily lives. Indeed the term law of the horse itself arose from its usage by Karl Llewellyn in dismissing and criticizing the Uniform Commercial code as “rules for idiosyncratic transactions between amateurs”
Infact, quite a while before Lessig discussed the actual potential for and thus the need thereof, for the law of the “horse”, Fulbrook had already postulated his views on the shallowness of trying to unify the current law as it may relate to the internet or the “horse”. In his seminal work in 1996 he curtly stated, within the opening paragraphs of his article. “Lots of cases deal with sales of horses others deal with people, kicked by these horses: still more deal with the licensing and racing of horses or with the care veterinarians give to horses or with prizes at horse shows. Any effort to collect these strands into a course on “the law of the horse” would be doomed to be shallow and to miss the unifying principles”.
Therefore, even a decade or more later, not only is there no actual law of the horse, there is arguably no law of the Internet either, at least in Pakistan. Or perhaps this is what we have been led to believe as the Internet has rapidly, during the last ten years opened the doors to the convenience of the “cut, copy and paste” technology. Arguably what increased the incidence of plagiarism, copyright, trademark and patent offences were the entirely borderless character of the Internet and the rare chance of being watched, caught and punished. Psychologists have attributed such a lack of concern of “being caught” and persecuted to the common perception within the particularly young Internet users that “copy paste “ and abuse of information is essentially not stealing or theft.
Before delving into a discussion of the ethical vacuum that exists in our society hence making it difficult if not impossible to uphold the concept of Intellectual property in Pakistan, let alone the cyber-world .it would perhaps be more expedient to revisit Lessig’s observations in the year 1999 about the role of technology in countering copyright infringement despite promoting it in the first place. Lessig predicted, perhaps very accurately that in the coming years at least four types of mechanisms would be utilized to regulate intellectual property on the limitless, invisible and extremely powerful medium, namely the Internet.
These four mechanisms were;
- Codes of Conduct and the Use of a Trusted Third Party (Laws)
- Regulation by the market (Ecosystem-Multiagency approach)
- Regulation by technology (Digital Rights Management Mechanisms for example)
- Regulation by control over an asset (Circumvention/Distribution Restraint)
According to Lessing’s model it can be seen that the cyberspace can be used to regulate human conduct in the prevention of piracy. Technology does, as a matter of fact play a crucial role in regulating people’s use of the Internet in pirating music or exchanging illegal copies of the same by technically limiting or enhancing, access to the same on the Internet. According to Lessig the role of regulation is to try and lay bare the effects of technology on the artists’, author’s and trademark owner’s and consumer’s respective interests and powers and to adjust these power imbalances (ibid). In addition to the above the use of the Digital Rights Management philosophy has had a massive impact upon the problem of copyright.
The technological response to piracy, copyright based on Lessig’s model (Lessig, 1999) by the copyright holders has been to develop new technologies like the ‘Digital Rights Management Systems’ (DRMS) which are basically software and hardware tools aimed at enhancing copyright and can include both tools controlling access and controlling use and tools providing information about copyright in a particular work. One dimension of DRM aimed at controlling music and information piracy is the use of digital watermarking, which will leave a ‘stamp’- code embedded in the digital data, which can basically allow the seller to track the content online, once sold or stolen for any further unauthorized code. Such a strategy has been known to prevent music & information theft/piracy quite effectively by means of controlling access (which is granted on payment of fees and time restrictions). One of these systems has included the Content Scrambling Systems used to protect Music DVDs from unauthorized copying. For these purposes the DRMS can be set up as a digital content distributed over the Internet or otherwise through (software, e-book, video or audio files) and allow the copyright holder to both confine use of the copyrighted content to the licensee or the legitimate buyer of the content.
While the use of DRMS in the music industry has proven to be quite popular in the West, the trend has continued at a slower pace from a legislative perspective at least in the Pakistani and neighboring jurisdictions. For one thing we are not signatories to the implementation of the 1996 WIPO (WCT) Treaties specifically aimed at internet based IP infringement which prohibit the circumvention of technological protection measures Article 11 of the WCT treaty states thus:
‘Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights”.
Before I proceed towards a conclusion then further then, it is worth building up and elucidating three scenarios for the discussion at hand.
In the first scenario of the three, lets just say a user comes across an Mp3 file online. Now as an online user there is an option to buy it from iTunes and Amazon for a certain amount of money. However the same user might perceive that music should be enjoyed free of cost and downloading it off limewire or stealing through computer aided software might be the “right” thing to d
This “Robin hood” view, of stealing from the rich and giving to the poor has become extremely popular especially with the increase in online Mp3 file swapping increasing in non-EU and non-American countries. It is possible to note that most of the technologies for circumventing copyright controls on
CD’s and Websites originate in Russia, China and more precisely our republic of technological geniuses, namely Pakistan.
Perhaps our society never really developed a proper concept for property rights as they relate to intangible goods, which you cannot really touch but gain benefit out of nonetheless. The law of regulating any respect for property becomes the law of the horse. The infringer and the so-called “thief” cannot be traced or punished in a court of law, for not paying a 99-cent royalty on a song or a document. This type of infringer, the so called, “Robin Hood” of the cyber world, believes that it is OK to steal because it is NOT stealing. Therefore one strongly developed perception about the Internet, which has been well supported by technological advancements, is that it is that Cyber-world is a free source of endless information and entertainment, something that does not require payment or for that matter a premium price.
Plagiarism and copyright infringement
Now in the second scenario we have an article or a Blog on the Internet where an author publishes original material. Such material is then copied and “passed off” for another person’s own work. While the Anglo-US jurisdictions actually recognize the tort of “passing off” and apply to concept rigorously to patent and copyright law (which by the way makes plagiarism a.k.a from the cyberspace a strict academic offence there), Pakistan seems to have little, or no subscription to the basic tenets of intellectual morality. This was witnessed in the year 2006 when in a widely publicized story run by the media, three University of Punjab professors were accused of copying identical blocks of online scholarly articles and publishing them in their own name to get sufficient academic credit for promotions. While this was an embarrassing moment for Pakistan internationally, things only got worse when one of the Professors was “honored” by a promotion even during the ongoing investigation for the act of plagiarism and copyright infringement. Ironically all three professors were not entirely suspended until the year 2008.The media has been hazy about any other follow up for this story. Nonetheless the purpose of bringing this incident up, at a point when the honorable members of the judiciary are present is to strengthen the hypothesis I am trying to build upon. And this is simply the horrific realization that our society neither has the ethical foundation nor the prospect thereof, to respect the concept of property. Essentially, the law of cyber intellectual property not only remains as substantially non-existent as the law of the horse but also is also perhaps unlikely to ever manifest in spirit. Because our society like most of the societies in the world neither has the concept, nor the respect for property rights either in the physical world, nor in the intangible realm of the cyber world. In fact our lack of respect for property rights, as a nation is evident from the amount of Qabza or Adverse possession cases pending in our honorable courts. Similarly perhaps then we are perhaps conditioned to think of the Internet as an ownerless or let me use the Urdu word ”bey-qabza” realm where we can cut, copy and paste to our heart’s content.
The final scenario, which I will now take you to, is the concept of trademark infringement in the cyber world. While the use of trademarks has mostly been a corporate battle on behalf of Pakistan, where little or no remorse is felt in copying off the designs, trademarks and materials of any company’s website, it is once again possible to note that as a society we continue to display entirely, a lack of subscription to ethics when it comes to capitalizing upon the good fortune and the goodwill of a business concern’s trademark.
This intangible nature of goodwill has often become a point of criticism by many  legal commentators who have often expressed their doubts as to whether these intangible rights, which have been “imagined” by the courts are actually just privileges as Machlup and Penrose have noted:
“ … Those who started to use the word property in connection with inventions had a very definite purpose in mind they wanted to substitute a word with a respectable connotation, ‘property’, for a word that had an unpleasant ring, ‘privilege’.”
Thus when we look at Goodwill as evidence of the trademark owner’s investment in the sign or mark it is possible to note that the concept of the same itself is vague. This might throw some dust on the passionately argued contention that trademarks in fact “deserve” protection because the owner spent an “X” amount of years and resources making it famous and well known. The “X” amount of years, resources and the exact value produced by the trademark as a result cannot be quantified. In the modern times we judge companies by their net worth or the financial news about them as it appears on the stock exchange. The main argument that has traditionally been posed against the existence of trademarks is then simply that a trademark, if it can be classified so, as property, is in essence, an intangible category of property with blurred boundaries, which must be actively defended by the holder against infringements.
Also worth looking at in the context of the topic at hand, is the historical and theoretical basis to be based upon the ideas of John Locke’s notions of a free and civil society with ownership of property being one of the core civil rights parallel to-and mutually reinforcing the right of a citizen to liberty, the idea has not found much favor with those who criticize the extremely vague nature of property rights, as and when they appear as trademark or IP rights especially in the context of cyberspace. Infact it has been argued by Drahos that even property rights themselves are artificial and deliberate constructions by the law and society as a defense to collectivism rather than what Locke was trying to portray as natural rights.
Now that I have highlighted all three scenarios above, I clearly do not wish to bring in an ad nauseum discussion of the procedures being offered by the Copyright Ordinance 2000, the Trademarks Ordinance (2001) and the Pakistan Penal Code (1860). And why is this? This because unless we are able to ensure the permeation of the concept of the moral hazards of attacking and stealing other’s “intellectual property” we are unlikely to be able to ensure any application of our long winded laws much inspired by the Anglo-US jurisdictions. Ironically, and please excuse my pun; even our typical Pakistani draftsman puts little originality and creativity when preparing WTO inspired laws for the approval of the parliament.
The better view of course is that unless the law and the society take positive steps to balance and protect these commercial rights they will affect and impede economic growth and thus contribute to a downfall and anarchy in the society. This brings us back to the tangible and intangible divide between property rights and the fact that the use or infringement of a trademark in an unknown location cannot actually prevent a person from using it or doing what he is doing before . Either ways in the opinion of the author, IP law, in the context of Pakistan due to technological expansion is still in a state of flux and as at now, law and policy as it relates to the same is at the best, vague and blurred.
On a concluding note I have perhaps been able to, whether successfully or not, elucidate upon the view that internet & intellectual property law will continue to be treated as the law of horse unless it has sufficient technological backing to enforce it. The second theme, which I touched upon, briefly perhaps, due to the lack of time was the perceived continuation of the failure of IP law as it applies to the Internet due to our permissive societal attitudes in not regarding the same as “theft” or “piracy”. I do not need to go further into the debate about how laws can fail in strength and spirit when a society does not believe in them. Therefore until we teach our children that plagiarism and “theft” of other people’s intellectual property is wrong, there is a very small chance that they will grow up to respect intellectual property whether in the physical world or the virtual world of cyber space.
Lawrence Lessig (Lessig), The Law of the Horse: What Cyber law Might Teach, 1999 Harvard Law Review p. 501
Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207.
Intellectual Property—Rights or Privileges? Hans Morten Haugen, The Journal of World Intellectual Property 10:1, 53–69 .The Journal of World Intellectual Property, Volume 8, Issue 4, Page 445-458, Jul 2005
F. Machlup and E. Penrose, The Patent Controversy of the Nineteenth Century, Journal of Economic History, Vol. 10, 1950, p. 2
D. Campbell and P. Thomas (eds.), Fundamental Legal Conceptions QS Applied in judicial Reasoning by Wesley Newcomb Hohfld, Ashgate, Aldershot, U.K 2001 (original edition: Yale University Press, New Haven, 1919);
Drahos, The Universality of Intellectual Property Rights: Origins and Development, in World Intellectual Property Organization, Intellectual Property and Human Rights, W I ~Geneva, 1999, Publication No. 762(E)
David Bainbridge, Intellectual Property (Harlow: Longman, 6th edition)
 Lawrence Lessig (Lessig), The Law of the Horse: What Cyber law Might Teach, 1999 Harvard Law Review p. 501
 Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207.
 Lawrence Lessig (Lessig), The Law of the Horse: What Cyber law Might Teach, 1999 Harvard Law Review p. 501
 See for example Intellectual Property—Rights or Privileges? Hans Morten Haugen, Intellectual Property—Rights or Privileges? The Journal of World Intellectual Property 10:1, 53–69 .The Journal of World Intellectual Property, Volume 8, Issue 4, Page 445-458, Jul 2005
 F. Machlup and E. Penrose, The Patent Controversy of the Nineteenth Century, Journal of Economic History, Vol. 10, 1950, p. 2
 See D. Campbell and P. Thomas (eds.), Fundamental Legal Conceptions QS Applied in judicial Reasoning by Wesley Newcomb Hohfld, Ashgate, Aldershot, U.K 2001 (original edition: Yale University Press, New Haven, 1919);
 Drahos, The Universality of Intellectual Property Rights: Origins and Development, in World Intellectual Property Organization, Intellectual Property and Human Rights, W I ~Geneva, 1999, Publication No. 762(E) A more balanced approach has been taken here by David Bainbridge, Intellectual Property (Harlow: Longman, 6th edition)
 Intellectual Property—Rights or Privileges? Hans Morten Haugen, Intellectual Property—