PAKISTAN Law and Practice Contributed by: Ali Kabir Shah, Hanya Haroon, Talib Ali Shah and Saif Ahmed, Ali & Associates
fair dealing to include literary, dramatic, musical or artistic work for the purpose of reporting cur - rent events in a newspaper, magazine, or similar periodical, as well as by broadcast, in cinemato - graphic work or by means of photographs. These provisions allow for the limited use of copyrighted works in specific contexts with - out obtaining the owner’s consent. The factors considered in fair use analyses are outlined in the statute and include the purpose of use (eg, research, criticism, reporting current events) and the nature of the work being used. While Pakistani law makes no explicit mention of an exception to copyright infringement based on satire or parody, the general fair use provisions in Section 57 of the Ordinance may provide some flexibility. Interpretation of whether a particular use qualifies as satire or parody and falls under fair dealing would depend purely on the discre - tion of the adjudicating authority. Although no explicit mention is made to an exception to copyright and/or trade mark infringement based on the right to free speech and/or information, the general fair use provi - sions in Section 57 of the Ordinance may also provide flexibility here. Again, interpretation of whether a particular use qualifies as free speech and/or information and falls under fair dealing would depend purely on the discretion of the adjudicating authority. 9.3 Exhaustion Pakistan recognises the principle of exhaustion of trade mark rights, commonly referred to as the doctrine of first sale. Once a trade mark owner puts a product into the market, their exclusive rights over that specific item are considered exhausted. Subsequent sales of that item by
others are not within the scope of trade mark infringement. As for copyright, the concept of exhaustion is less clear-cut in Pakistan. While the law does not explicitly address the doctrine of exhaustion, the principles related to the first sale may be applied to some extent. The idea is that, once the copy - right owner has authorised the sale of a copy, they may be limited in preventing subsequent sales of that specific copy. With regards to the treatment of digital content by the courts, in the absence of explicit provi - sions, the courts consider the nature of digital goods, licensing agreements and other relevant factors when applying exhaustion principles to digital content. In cases of infringement, the remedies available to a trade mark or copyright owner include seek - ing preliminary or permanent injunction, dam - ages, declaration and rendition of accounts. Damages may encompass actual loss, loss of business opportunity and future profits, and damage to reputation. Injunctive relief, whether interim or permanent, can be made out upon fulfilment of three condi - tions: • the existence of a prima facie, case in favour of the applicant; • that irreparable loss, damages or injuries may occur to the applicant if injunction is not granted; and 10. Remedies 10.1 Injunctive Remedies
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