Need for deterent punishments for IPR violations

If master ghazal singer Mehdi Hassan’s records and cassettes were not pirated, he wouldn’t have needed anybody’s help today when he is on the sickbed. He would have been a millionaire in dollar terms through his earnings from the royalty. He is not an isolated case. Many singers, musicians, writers, film and TV play producers and poets have suffered because of the piracy in our country, poor implementation of copyright laws and lack of awareness among these artists and scholars about how to protect their intellectual property rights.

Though these people did not lobby for the protection of their rights, a light can be seen on the other side of the tunnel. This light has been lit under growing international pressure and strong lobbying by the foreign and local industry at home. Majority of the countries in the world are committed to take measures for protecting intellectual property rights (IPR).

It took quite a while for the government to bring all the IPR related departments under one organisation. Copyright registration was under Ministry of Education, Trade Marks were under Ministry of Commerce and patent registration under industry. In the first place it was a battle with various ministries who wanted to protect their respective turfs — they fought overtly and covertly.

But when the government bulldozed all the objections to meet its international commitment, another tussle started. This time it was the issue that who should control the newly formed Intellectual Property Organisation of Pakistan (IPO). The issue was finally resolved by the Prime Minister and IPO has been placed directly under the Cabinet Division. This means that IPO would be directly answerable to the PM himself.

Three parallel actions were taken by the government to meet its commitment to protect IPRs: one, establishment of the IPO as a policy making and regulating organisation; two, Federal Investigation Agency (FIA) was given the authority to enforce the IPR laws and regulations; and three, customs was activated to check inflow and outflow of counterfeit and pirated products. Initially, FIA conducted many raids by FIA on major producers of pirated films, music and software CDs and an effective check on the smuggling of pirated material to developing countries paid back.

But in spite of some progress made regarding IPR to ease the international pressure the IPO has lost its initial vigour and took years to get the special Tribunal’s made in the country at the provincial level; and still maximum punishments under the law for the IPR violation of are not enough to discourage people from committing such crimes. These issues can be addressed by holding regular meeting of the policy board of the IPO which is not the practice at present.

All these efforts have brought some success.  Pakistan’s name was struck out from the “Priority watch list” of the US Commerce Department. Pakistan had remained on this 14 countries list for a long time as one of the major source of pirated and counterfeit products. We were not in that bad a company as some of the other countries as: Russia, China, India, and Philippines.  Now we have been moved to the ordinary watch list of a larger club of 45 countries.

The most important task ahead was to create awareness first about why intellectual property rights should be protected. It is not only the general public which has to be informed and educated on this subject. I have come across a number of decision-makers in the government and high judiciary who think that “intellectual property rights protection is the racket of MNCs to protect their fat profits.” And that as a developing country we cannot afford to indulge in what they call “an expensive moral luxury.”

There are three popular arguments against the protection of IPRs.

One well-meaning argument against protection of copyrights of books and software is that we are a poor nation and to educate our children “we should beg, borrow and steal.” Similarly, this section of populist intelligentsia says that we cannot afford expensive medicines hence patent rights should not be given to the pharmaceutical companies who develop these medicines. There are also many opinion makers who say that people make counterfeit because big companies make expensive products and high profit.

But before moving on let’s take the fundamental issue. Almost all the protagonists who are against IPR protection have one common concern: the welfare of the poor and the feeling that because we are poor we have the right to flout the international laws to develop. It is like saying that we are poor so we have the right to steal.

Basically all the well-wishers of the people are confusing the whole issue of public welfare. The right of people to have education, the right of the people to have access to knowledge and the right of the people to have inexpensive healthcare and to have less expensive consumer products cannot be undermined. But what is missed by them is that it is the duty of the state to provide education and healthcare to the people and not of the private sector, writers, artists, and scientists who suffer at the hands of counterfeiters and copyright pirates. As a matter of fact all governments love the confusion in which they can abdicate their fundamental obligation of looking after the social sector. And our intelligentsia is obliging.

Now let us examine each myth separately. Because of piracy of books and artworks, how many of our creative people can live off the income from the wonderful artworks produced by them? Why our course books are shoddy? Isn’t it because we don’t pay our scholars decently and their books are pirated overnight.

As for the foreign course books which are mostly used in higher education institution, why the government cannot buy their publishing rights and do the job honorably instead of indulging in piracy? In many cases it is only the middleman and those who indulge in piracy who actually makes the money, while the reader gets low quality books only at marginally less price.

The issue of patented medicine is also the same. Much is said about patent protection that it bars the local producers from the market and gives the companies with these rights to sell at high prices. The fact is that out of around 1000 basic drugs registered with the Ministry of Health only 5% are patent protected. So there is a vast field open for the local industry. The patent rights are also not for a life time they expire in 7 to 8 years.

Finally, the arguments that counterfeiting is encouraged because of big companies sell their products at high prices. The fact is that nobody is stopping other entrepreneurs to introduce their own products and sell them at any price or even give free to the people. But they should not have the right to take a piggy-back ride on other companies who make investment in building brands. It is also an issue of cheating the consumer who buys the look-alikes as originals.

Critics are also of the view that IPR violations should not be curbed or condemned because the MNCs and US government are also asking for effective mplementation of these laws. On a practical side can we afford to not listen to the west which is our biggest trade partner? Trade curbs by them can hurt the same poor people who produce exportable products. This criticism reminds me of the strange logic of Chairman Mao, which now even the Chinese have forgotten: “Oppose what the enemy supports and support what they oppose.”

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