Pakistan is a country with a dense population and a faltering economy. If all of the counterfeiting and pirated industries are seized, the prices of goods will ultimately rise to make them unavailable for the majority of the population. A large percentage of the population strives to meet the necessities of life. Pakistan has a low literacy rate, and the struggle of the populace to meet ends leads to corruption and involvement in criminal activities. In the current scenario, an effective legal mechanism for intellectual property rights will not provide an immediate rise to the economy of Pakistan.

Pakistan’s current legal system is capable of handling crises and legal doctrines can rectify the ambiguity in laws. Thus, instead of creating new legislation, it is imperative that the current laws be implemented effectively (International Intellectual Property Alliance 2008). According to ‘International Intellectual Property (IIP)’, the Government of Pakistan is lenient to impose any stringent measures and laws to fight piracy in the country as Pakistani publishers compete with the global pirated market.

The report also gives a brief overview of software piracy, piracy network as well as the implementation strategy in the judicial system of Pakistan. However, Pakistan has enacted and amended intellectual property laws to align its legal framework according to international obligations outlined in the TRIPS agreement(International Intellectual Property Alliance 2008). Despite these efforts, the infrastructure of Pakistan is still marred with challenges of the exponential growth of piracy causing the county’s economy to suffer (Naveed Ahmed et al. 2021). One possible explanation is that existing legislative loopholes have been aggravated by a lack of oversight of regulatory bodies, lack of implementation of laws, and lenient sentences. Moreover, the sanctions and punishments are insufficient to prevent criminal activity. In comparison to the massive piracy industry, the fines imposed on the convicts are quite nominal. For instance, a person booked with a such offence can be sentenced to maximum imprisonment of three years and a fine of five thousand rupees. Whereas, the implementation of laws is ineffective and the litigation process is expensive and time-consuming.

The report also suggests that the Government of Pakistan should work and correspond together with international organizations in order to overcome piracy. It further suggests that in lieu of the Investment Framework Agreement of 2003, the United States should exert pressure on the Government of Pakistan to implement effective measures to protect the violations of intellectual property rights (de Beer 2016)

In Pakistan, there are independent courts to settle the disputes of intellectual property and they need more autonomy to dispense the matters swiftly. In this respect, the national authorities of Pakistan should also develop an arbitration system.

 2.1 Tribal Regions under the Imperial Form of Government The Intellectual Property Organization Pakistan Act 2012 (hereinafter IPO Pakistan Act) is major legislation dealing with this issue, but unfortunately, the act itself is marred with several issues and a lack of implementation. According to Section 18 of the IPO Pakistan Act 2012, read with section 2(h) and the given schedule, the offences under the following acts will be exclusively tried by intellectual property tribunals (hereinafter IP tribunals):

 (i) ‘The Trademarks Ordinance, 2001

(ii) The Copyrights Ordinance, 1962

(iii)The Patents Ordinance, 2000

(iv) The Registered Designs Ordinance, 2000

 (v) The Registered Layout Designs of Integrated Circuits Ordinance, 2000

 (vi) Pakistan Penal Code, 1860 (Sections 478-489)’

The current issue that persists is whether the above-mentioned IP tribunals have been established or not. Such tribunals are only working in Islamabad, Karachi and Lahore (Anon 2017a). However, other metropolitans such as Quetta and Peshawar do not have these specialized tribunals. This discriminatory attitude makes it evident that the Government of Pakistan is not prioritizing the implementation of Intellectual Property laws. Another pertinent question arises whether the presiding judges of such courts are well acquainted with the intricacies of IP laws or not. Unfortunately, the presiding judges of such courts and tribunals have no expertise in IP laws, as they are simple Law graduates with no compulsory course in Intellectual property laws during their LLB. Moreover, the prosecution also lacks the capacity to handle such cases. Although the establishment of Intellectual Property Tribunals in Islamabad, Karachi and Lahore is a development in the right direction the effectiveness of such tribunals is yet to be seen (United States Trade Representative (2017) 2017). 2.2 Role of Intellectual Property Organization Intellectual Property Organization in Pakistan (hereinafter IPO) has a significant role in the implementation and enforcement of IP laws in Pakistan. According to section 13(xvii) of the IPO Pakistan Act 2012, it is the responsibility of the Intellectual Property Organization Pakistan to propose and introduce enactments and amendments for the protection of intellectual property laws in Pakistan. However, it appears that this organization is not fulfilling its responsibility mandated by law. There are laws governing patents, designs, integrated circuit layout designs, and copyrights, but there aren’t any yet for ‘Genetic Resources, Traditional Knowledge and Folk Ware (GRTKF)’. The fact that some offences of IP are penalized and some are not is a major obstacle in the implementation of such laws in Pakistan. According to section 13 (xviii) of the IPO Pakistan Act, it is the responsibility of IPO Pakistan to protect and initiate the implementation of IPRs. IPO Pakistan is also mandated to collect data and information regarding the instances of IPRs implementation. In this regard, comprehensive data on the violations of IPRs such as counterfeiting and piracy is not available. On the website of IPO Pakistan, an incomplete, irrelevant, and vague date is available which is difficult to understand and interpret the exact situation of counterfeiting and piracy violations. In order to inform the general public, judges and lawyers of IPO tribunals, no data regarding the already decided cases is available.

 2.3 Enforcement Mechanism in Pakistan At the operational level, the agencies that work in coordination for the enforcement of IP laws are FBR, FIA, Police, Pakistan Customs, and PEMRA. But this enforcement chain is only restricted to Karachi, Lahore and Islamabad. In the official meetings of IPR enforcement coordination Committees, the ‘Federation of Pakistan Chambers of Commerce and Industry’, the ‘Overseas chamber of commerce and industry’, the ‘anti-counterfeit and infringement forum’ and the ‘Pakistan industrial rights association’ are invited to devise an inclusive legal framework for the enforcement of IP laws (Anon 2017b). The issue at hand is whether the detrimental effects of counterfeiting and piracy are limited to Lahore, Islamabad, and Karachi. Other major cities of the country have no enforcement coordination committees as they are an exception. Secondly, a common man is unaware of the process to initiate a criminal proceeding against a counterfeiter and how to lodge a complaint of any IP crime. If any person wants to file a complaint, should he go to FIA, PEMRA, Police, Pakistan customs, IPO or FBR? He is unsure about the exact forum due to a lack of awareness and loopholes in the legislation. Currently, there exist specialized forces such as excise police, Anti-terrorism force, and Dolphin force, but lack IP police or force to handle cases regarding the violation of intellectual property laws and should pace up the enforcement activities. The IPO Pakistan is headquartered in Islamabad, with a regional office in Lahore. While the copyright office, Patents office, and the Trademarks Registry are in Karachi. Another Regional Office was also established via notification in April 2018 but there is no such office in Quetta (Anon 2018). The main obstacle to the enforcement of IP laws is the absence of offices at every division level. The Laws relating to intellectual property in Pakistan have a relatively narrow definition of an offender

• (i) Land Revenue Act, 1967[6] – Each province has its own set of laws that emanate from the Land Revenue Act, 1967. This is the basic law that deals with the records of rights and transfers through mutations. Each of the provinces has adopted this law, albeit with minor changes.
• (ii) Transfer of Property Act, 1882[7] – The general law describing and regulating matters of property transfer (lease, sale, mortgage, etc.) is the Transfer of Property Act, 1882.
• (iii) Registration Act, 1908[8] – The general law that regulates the registration of documents is the Registration Act, 1908. This law is applicable in our context, as whenever property rights are transferred or mutated, often requisite documentation needs to be registered(particularly in urban areas).
• (iv) Local and Special Laws – These local and special laws include laws governing housing societies whether they fall under the private category, cooperative societies, mutual societies, and cantonment boards, etc.

Some of the above-mentioned laws are more relevant in a rural context, whereas others are more applicable in urban areas. Some laws have ‘overlapping applications’ but on a general and practical levels, laws governing immovable property in rural areas are different from the urban areas’ immoveable property laws.[9] As we move forward and discuss the processes involved, this difference will become more apparent.

PROPERTY RIGHTS: WHAT ARE THEY?

Defining, allocating, and protecting property rights is an essential tool to form the basis of efficient and effective markets and society. ‘Property Rights’ is a term used to define the right to possess resources and the right to determine their utilisation. The term is not limited to just public ownerships, but property rights are extended to private individuals and organisations. However, the issue of property rights remains a highly complex matter and must be thoroughly assessed.

Every country defines property rights through various laws, rules, and regulations, with ultimate enforcement of property rights the responsibility of the state and its institutions.

In the case of Pakistan, it is essential to study the relevant laws defining and governing property rights comprehensively. This brief aims to describe Pakistan’s existing land property rights and evaluate the land record system. Moreover, the brief will also identify the laws regulating property rights in Pakistan and analyse the right to transfer land and property. 

DEFINING PROPERTY AND LAND IN PAKISTAN

• The terms ‘Land’ and ‘Property’ are often used interchangeably in Pakistan. However, as per the regulations, property, and land have two separate definitions.
• In Pakistan, property means anything tangible or intangible that can be owned by or vested in by an individual. Any property that physically exists, even temporarily, is referred to as tangible. In contrast, a property is considered intangible when it does not physically exist, such as patents or intellectual property rights.
• On the other hand, ‘Land’ is defined as immovable property. Subsequently, we can infer that ‘Land’ is a type of ‘Property’, falling under the tangible category. There are other types of ’Property’, as explained above.
• We can, thus, conclude based on the information mentioned above that ‘Property’ and ‘Land’ as per the legal definitions cannot be used interchangeably and are defined independently.

Pakistan’s property definitions are further classified under immovable and moveable properties. As per these, immovable property includes the following:

• Land, buildings, and benefits gained from land and other things attached to the earth
• Permanently fastened to anything attached to the earth
• Hereditary allowances
• Rights to ways
• Lights
• Ferries
• Fisheries

The following, however, are not to be considered as immovable property:

• Standing timber
• Growing crops or grass
• Fruit upon and juice in trees regardless of whether it exists presently or currently is just expected to grow in future
• Machinery embedded in the earth, particularly in cases where it is dealt with apart from the land.

The above are thus considered under ‘Moveable Property’. This is because of the definition of ‘Moveable Property’, explained in reference to immovable properties. In summation, all property that cannot be defined as immovable property shall be considered ‘Moveable Property’.

AND OWNERSHIP: WHO IS ALLOWED?

The property rights are defined and protected under the Constitution of Pakistan through various laws and rules and regulations. Special and specific laws are in place to define and protect different types of property rights.

Four articles of the Constitution of Pakistan deal with private property rights in the country. These include Articles[1] 23, 24, 172, and 173. 

Regulation and Administration of Property Rights with Special Reference to Land Records

The system of land records and enforcement of property rights system in Pakistan are closely tied to the ‘Revenue Collection’ system. Since colonial times, revenue departments have done law enforcement of property rights and recording and maintenance of land. The respective revenue departments of provinces are in charge of land administration and enforcement of property rights.

These provincial revenue departments are ‘with which every person has to come in contact concerning any matter in relation to or arising out of land’. However, the system is devolved so that immediate maintenance of and hence any changes in land records happens at the sub-district level, i.e., the Village and Tehsil levels. The figure above depicts the formal levels characteristic of this devolution