Stricter Implementation of Sri Lankan Intellectual Property Law


The World Intellectual Property Organizations

The government has declared that Intellectual Property Law in Sri Lanka inclusive of Copyright Law will be revived and implemented stringently. This will go along with the implementation of the Right to Information which law is to be passed shortly. These are excellent steps in the right direction safeguarding the rights of the public to know; and to protect what they have produced through their intellect.

Intellectual property is said to be the ‘fruit of human intellect’. This has to be protected with two aims advanced: the financial incentive where people earn from their brain work; and the economic incentive which assures protection rights which are essential to ensure economic growth of a country. Article 27 of the Universal Declaration of Human Rights (UDHR) declares "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."

Intellectual Property Rights are currently protected in Sri Lanka under Act No. 36 of 2003 with Sri Lanka being a member state of the World Intellectual Property Organization (WIPO) and a signatory to the Berne Convention. WIPO is one of 17 specialized organizations of the UN created in 1967. The Berne Convention is an international agreement governing copyright which was first accepted in Berne, Switzerland in 1886 and amended many times, the last in 1979. All countries within the Convention recognize each other’s copyright laws.

So, as is seen in Sri Lanka, the foundation is firm and well laid; it’s the structure of the building, or implementation that is shaky. Copyright of written material is happily ignored and infringers go Scott free. There was an instance several years ago when a theatre production was rehearsed for months with millions spent and on the night of opening with the first of the audience arrived, the production was cancelled. Evidently no permission had been obtained from principals or the overseas copyright holder. Another typical Sri Lankan transgression was that it was a local who reported the infringement of copyright, timing it maliciously for the law to be clamped just before show time of the first performance of many scheduled. I asked about a song that was almost the signature tune of one musician being sung publicly by another. Copyright laws governing music and songs were explained to me, but far too complicated to explain here. The answer to my question was that the second singer was not infringing the right of the composer of the song in this instance.

Intellectual Property is classified in the local Act under several heads such as copyright and related rights, industrial design, paintings, music, trademarks, patents and integrated circuits to name but some. The National Intellectual Property Office of Sri Lanka is the only government body established for the full control of intellectual property. (I tried to get into its website but failed. I’ll place the shortcoming, if it was that, on myself). Copyright is for all creative and artistic work such as books, movies, music, paintings, photographs, folklore, sound recordings and computer programs which need no registration under the Act but are protected automatically by operation of the Law - Section 13(1). The Act provides economic and moral rights protected during the life of the author and for a further period of 70 years after his death.

Infringement of copyright is reproducing, distributing, displaying or performing a work, or making derivative works without permission from the copyright holder, which in most cases of an ‘intellectual property’ is a publisher or other business. Copyright is created the instance a work is fixed – we presume this means the day a book is published and made available, a song is sung publicly, a painting is exhibited and so on. As Robert Brode, an attorney who practices entertainment law in New Orleans says: "By creating an original work and fixing it in a tangible form (writing it down or recording it), you not only immediately and automatically create a copyright in the work, but you create an asset." (Different from patents that need registering, scrutiny and then award of a patent or rejection of work submitted to the country’s patent office).

Royalties are the backbone of the creative process. And then comes copyright infringement and payment for the ‘crime’ that adds to what an author gets for his brain work. There was introduced in several countries, with much argument and discussion of pros and cons, a system of paying authors for their intellectual output each time a book of theirs was borrowed in a public library. Termed Public Lending Right (PLR), the program intended to either compensate authors for the possible loss of sales from the work being made available in public libraries or as a general support of the arts through support of books, music, artwork, available for lending in public libraries. Initiated in Denmark in 1941, it gathered popularity and has 28 countries adopting the PLR program. PLR is linked to copyright legislation and has made libraries liable to pay authors for availability of a book in the library collection. Around the late1970s this was a hot topic in Britain where against the right of authors to get paid when a book of theirs is read, it was criticized as public libraries are supposed to be free to users. The library was liable to pay money to an author each time his book was borrowed but they passed it on to their clients. Now it is fiction that is paid for since a research publication is really insulted by such a payment as it would lose to a cheap novel that is much in demand!

I wondered about copyright or even a form of PLR with regard to kindle which is the e-reader from Amazon.   I have no kindle so asked a user. You purchase an e-book through Amazon, usually costing slightly less than a hard/soft copy which can then be downloaded on the kindle reader.  Amazon also has its own library of books available through an annual membership. In addition, local libraries are now linking with Amazon which enables people to check out books online.  

Music and song writing and performing are gathering speed and force and volume very rapidly in Sri Lanka. "Being a songwriter is a powerful thing. Once you write a song and fix it in a tangible medium, you become the proud owner of a musical work copyright. Your shiny new copyright comes with a set of powerful exclusive rights to: reproduce the work; prepare derivative works; distribute the work at will; perform publicly or by means of digital audio transmission." We’ve heard of song writing being bestowed on certain song writers/singers for political rallies and election platforms during the last regime, at very high rates since the public paid for even these.

Pirating and pirated copies of mostly DVDs and videos is a huge problem in the world with certain Asian countries being more guilty than others in the craft of pirating. "In Sri Lanka, the Censor Board is drawing up plans to introduce a license to multimedia disk traders in Sri Lanka. Under the new license, retailers of the music and movie disks will need to possess the consent of the copyright holder of the content if it is to be sold in the market".

I suppose UNESCO’s introduced ‘fair use’ clause is still relevant, where photocopying of even the entire text barring making a complete book of the photocopy is permitted for educational purposes since it is a way to bridge the gap between the knowledge rich and freely publishing North with the knowledge and publishing poor South.

Accusation of delays but much achieved

There is shouting from all sides and from several political parties and politicians that the new government is working too slowly. The self professed pundits adduce various reasons for this. But as a VIP or two have said it is not possible to catch immediately those who have done wrong. Foolproof evidence is needed. Consider however the government’s achievements within its 60 days of life. The government has already implemented or will implement legislation and Acts that were long delayed. The increased-to-80% pictorial labeling of cigarette packs was achieved; the Right to Information Act, delayed and even ‘hidden’ by the previous government, will soon be passed; the National Drug Policy had its second reading in Parliament on March 4 and will be made law, incorporating a couple of amendments. This Policy was made to drag its feet and even disappear after it was first proposed forty long years ago by Prof Senake Bibile. And now copyright with all its ramifications and including so many varieties of material will soon be brought out and its laws implemented as regards intellectual property.

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