Pirates With Neckties And Morals
“The intellectual property situation is bad and getting worse. To be a programmer, it requires that you understand as much law as you do technology.”
– Eric Allman
It was the class of European Union law, which most of my class fellows detested. I had developed an acute adoration for the subject ever since I studied it as a part of Constitutional Law in the first year of LLB. The teacher endeavoured to explain the ‘institutional framework’ of the behemoth of EU with the aid of projected power-point slides. Every few minutes into the lecture, an annoying pop-up window would open along with an even more annoying computer generated sound. The teacher immediately closed the ‘error message’ and continued with explaining the slides. And yet again, the same message popped up and perturbed everyone. It was but a ‘simple’ and often ‘ignored’ message that reminded that the version of Windows and Microsoft Office being used was not genuine. The teacher again hushed it away with a single click of the mouse. I am not a geek when it comes to computers but, I understand enough to have my way around them. I have encountered such reminders, warnings and messages countless times before. My immediate response used to be either clicking on the small ‘x’ sign on the top right corner, or clicking ‘Cancel’ or ‘OK.’ That used put the genie back into the lamp.
In school days, I was hardwired to strongly abhor and even condemn crimes and unethical behaviours. My friends were no exception. One evening, I sat in my friend’s home in front of his what we would now consider a tardy Pentium powered PC. I ejected the disk from the CD-ROM and yelled out to him to hurry back. The game had installed and was ready to run. Later, my friend and I rejoiced in the fact that we had purchased a recently released game for an inexpensive price. We never realised that we had just committed a crime. Although our teachers and carers put in a lot of effort to inculcate in us the value systems which made us consider ‘theft’ and ‘usurping the rights of another’ as immoral and unethical deeds, we never considered software piracy as anything illegal, immoral or unethical. We knew exactly that taking away someone’s belonging was wrong, but, we were never taught the exact concept of ‘belonging’. Both these examples illustrate the failure of our education system. As children, we would yell at the top of our lungs if we ever caught any classmate cheating. Cheating or copying answers from another person was actually a kind of theft. This start is exactly what we need but, somewhere down the line, a transmutation occurs that blemishes everything.
It was in the later years of my LLB that I became acquainted with intellectual property rights. They never existed for me before that. We essentially live in an environment where piracy is fostered and nurtured. Our practices are replete with intellectual property (IP) infringements. We are taught that stealing another’s book is bad and should attract punishment but, we are never taught (I can say this with certainty about our school and college level education) that stealing what is within a book by whatever means is also an equally grave and punishable act. Pirated books and software are sold without fear of any ramifications. These practices are so rampant that they have demurred authors from publishing their works in Pakistan. Publishers operate in a warzone-like environment, where they are bound to lose in one way or the other. The number of authorised retailers or stores selling official, licensed and genuine software programs in the city of Rawalpindi could be counted on the fingers of one hand. Conversely, the stores or ‘shops’ where one could buy a pirated CD would easily be in beefy four-figures. The worst part is that these (mal)practices are not considered criminal, bad or wrong by us.
The environment is so conducive and cordial for piracy, that when we try to view the problem from a jurisprudential viewpoint, a further dismaying and grim reality emerges. Law is a social phenomenon. Laws are reflective of the collective wisdom of the society and a gap between the intellectual depth and prowess of a given law and social practices (if irreconcilable, and that is what it is most likely to be) is a jurisprudential dilemma. From Hartian standards, the ‘internal’ point of view (considering the social practice only) with respect to intellectual properties is composed of but widespread infringement, which the society does not render ‘wrong’ or as constituting infringement. If we take the assist of Dworkin’s theory, then, we will see that the laws of intellectual property in Pakistan have no ‘point’ and have a depleting ‘interpretive’ value. We are indoctrinated to despise cheating and stealing but, at the same time, we have tacitly approved the existence of these ills when their form is intangible.
This gulf between the existing legal mechanisms and our practices needs to be bridged to avert further perversion of our society. Strict enforcement alone is not a viable solution. The society needs to be educated about how this ill has penetrated it and only proper education will change the social attitude. The social attitude is deeply connected with the economics of the matter. Pirated material is cheap and readily available. If a bookstore that sells pirated books is sealed or shut down by the officials, the response of the society will be upheaval. For the bulk of people, it would be one less store that was budget-friendly. They will view it as an economically oppressive measure that puts them in a further disadvantaged position.
The intellectual property regime also suffers from the lethargy of legislators. This is neither unique nor unexpected as the country is still shackled to the centuries old, outdated procedural law. I have often asked this question from different people (and I am yet to receive an answer) on whether primitive procedural law impedes the development and modernisation of substantive laws of Pakistan. The titles of the legislation on IPs in Pakistan also tell a great deal. Copyrights are governed by an Ordinance dating back to 1962. Back then, subject matters copyrightable today were probably not existing. There were no software programs to run on PCs as the PC itself was in a premature stage of its development. Digital books were probably not even developed then. The cellphones used nowadays to capture any performance that can be copyrighted were also in their embryonic stages. In the year 2000, this law was partly revised and certain changes were made which, in essence, did not change the law much. Many new materials have been added to copyrightable materials worldwide, including distinct smells and odours and structural designs. No effort has been made to include the newly recognised copyrightable subject matters for protection.
The present government and almost all mainstream political parties recognise the significance of strengthening the economy of Pakistan. Sadly, during the ‘democratic tenures’ in Pakistan, almost no attention was paid to the IP situation in the country. The present government is yet to pay proper attention to it. A nation that does not appreciate and respect intellectual property becomes imitative and creatively impotent. The Global Innovation Index 2016[i] ranks Pakistan as the 10th ‘least creative’ country out of 128 countries (rank 119), even less creative than Georgia (rank 64) whose economy is almost 14 times smaller than Pakistan’s[ii], Hungary (rank 33) whose economy is even smaller than half that of Pakistan’s[iii], and Panama (rank 68) whose economy is 1/4th that of Pakistan’s[iv]. Pakistan is signatory to only 3 out of 27 treaties administered by World Intellectual Property Organization (WIPO)[v], even behind countries as small as Burkina Faso which has signed 10 treaties (a country whose economy is 21 times smaller than Pakistan’s economy)[vi] and Kyrgyzstan which is signatory to 21 WIPO treaties (a country whose economy is 36 times smaller than that of Pakistan’s)[vii]. Pakistan has naught utility model applications[viii] by residents and non-residents in Pakistan and the patent grants to residents have shriveled up from 172 in the year 2014 to only 7 in 2015[ix]. In 2005, 444 residents filed for registration of industrial designs which decreased to 238 registrations in 2015[x]. Pakistan sits in a geographical location such that it has very varied cultures. Each direction on the compass will take you to a completely different cultural experience. Cultural practices, lore, traditions and arts have acquired the central place in understanding of dynamic human evolution. Culture is also an intellectual property (although, considered to be a ‘soft IP’) which is usually protected as ‘traditional knowledge and folklore’ (TKF). Tu Youyou won a Nobel Prize for her remarkable research in finding curative agents in traditional Chinese medicine[xi]. Sadly, there is no law in Pakistan to protect this asset of the country. Bill Gates once said, “Intellectual property has the shelf life of a banana.” That ‘banana’ in Pakistan is immune to decomposition.
Intellectual Property rights are essentially economic rights and the concept of intellectual property is purely economic. When countries do not pay attention to their IP situation, they are inevitably compelled to buy and import more. In the present times and for the future, the era belongs to technology. With virtually non-existent creativity, Pakistan will see its exports diminish and imports beef up. Pakistan’s sports goods/equipment exports have suffered a jolt due to child labour allegations. The automation of that industry would have solved the problem. The undeniable truth is the future is of technology which in turn will serve all needs of mankind.
With such dilapidated conditions of IP, it was a jubilant surprise to see a sixth grader sue the President House for plagiarism of his speech[xii]. A country where words of authoritative figures become gospel truth, this was nothing short of an act of defiance. Although the matter was quickly resolved thereafter, but, a ray of hope had pierced the darkness around. And if the murky shadows of our obstinate behaviour are to eclipse any further rays of hope, then, we will, in time to come, retard and decelerate the growth of our country. We will face expensive lawsuits internationally (since 2000, Pakistan has been a respondent country 130 times[xiii] for IP related complaints as opposed to 1 complaint filed by Pakistan since the same period) and we will lose investment by the technology sector. Recently, Pakistan has been removed from the US Priority Watch List and has been moved to the Watch List. This is a good sign but, the government’s promises to strengthen the ‘institutional framework’ will meet with failure if the society remains ignorant of IPs. Moreover, the institutional efficiency in Pakistan is yet another story of rue and ruin (Pakistan ranks 124 out of 128 countries for ‘institutional efficiency’ and Pakistan’s education sector suffers from the same grim fate with a rank of 124 out 128)[xiv]. Although better legislation can solve the problem to some extent, it is the more proactive implementation which fails to complement most laws in Pakistan (Pakistan ranks 109 out of 128 for ‘rule of law’[xv] and ranks 111 on democracy index 2016[xvi]).
The government should introduce a ‘cultural reshaping initiative’ based on a strategy formed after careful deliberation which aims to reshape the thinking and attitude of masses towards intellectual property. This should include mandatory courses offered at school and college level to introduce the concepts of IP and related aspects to the public. Intellectual Property Office should extend its outreach programs to schools as well. Competitions at school level to encourage innovation as well as young inventors should be held where the participants should go through a mock patent application procedure to acquaint them with patent systems. The government itself should seriously invest in Research and Development (R&D). The current expenditure of the government on R&D is only 0.3% of the total GDP (by virtue of this expenditure, the rank of Pakistan is 78 out of 128 countries)[xvii]. Unless the government becomes a major stakeholder itself, the attitude problem will persist. Officials including judges, lawyers, tax and customs officials, etc. should be trained with respect to IP rights. At present, the Office of the United States Trade Representative is still concerned about the use of unlicensed software by government agencies and officials in Pakistan. The scab has to be peeled off for new skin to grow.
“I wish to note that intellectual property theft by a government represents the very essence of organized crime.”
[i] Cornell University, INSEAD, and WIPO (2016): The Global Innovation Index 2016: Winning with Global Innovation, Ithaca, Fontainebleau, and Geneva. ISSN 2263-3693, ISBN 979-10-95870-01-2
[vi] See supra 2
[xiv] See supra 1
[xvii] See supra 14
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