IIPA on Pakistan compulsory licenses

by James Packard Love

This is from the International Intellectual Property Alliance (IIPA)'s February 13, 2006 recommendations for the 301 Watch List, on Pakistan's compulsory licensing laws.

"Fix Royalty-Free Book Compulsory License Which Violates TRIPS: The Government of Pakistan amended its copyright ordinance in 2000 to include Section 36(3) that allows a royalty-free compulsory license of books. This amendment was passed without any opportunity for publishers to comment. This provision threatens to further diminish a market already almost completely overrun by piracy. This royalty-free compulsory license violates the Berne Convention and TRIPS and the Government of Pakistan must repeal it.

"Royalty-Free Compulsory License for Books Is Out of Step with International Standards: The Government of Pakistan amended its copyright ordinance in 2000 to include a provision (Section 36(3)) that allows a royalty-free compulsory license of books. Specifically, it provides, “[t]he Federal Government or the Board may, upon an application by any government or statutory institution, in the public interest, grant a licence to reprint, translate, adapt or publish any textbook on non-profit basis.” Included in “government or statutory institution” is the National Book Foundation (NBF), which is part of the Ministry of Education and has been previously accused of engaging in unauthorized reproduction. This amendment was passed without any opportunity for comment from publishers and threatens to further diminish a market already almost completely overrun by piracy. This royalty-free compulsory license violates the Berne Convention and TRIPS[10] and Pakistan must delete it.

[10] The Government could limit the scope of the license by making clear that the conditions of the limiting language of Article 36(1) must be met in order for a license to be available under Article 36(3). Even then, however, the license cannot withstand scrutiny when compared with the Berne Convention’s three-part test. Pakistan has not availed itself of the Berne Appendix. Thus, Article 36(3), completely out of the bounds of Pakistan’s international obligations. It also may run afoul of private property rights enumerated in the Constitution of Pakistan and should be considered in light of this constitutional requirement as well.