Intellectual property and Law
In the early history property was defined and divided as movable and immovable which only had a corporeal character. But in the modern context, to meet the need of protecting products that has a commercial value, a formal development in the legal framework that falls under the category of intangible property rights has been developed regarding intellectual property . As defined by the World Trade Organization (WTO), ‘‘Intellectual property rights are the rights given to persons over the creations of their mind and they usually give the creator an exclusive right over the use of his or her creation for a certain period of time.’’ The Berne Convention of 1886- for the protection of Literary and Artistic Works, International Convention for the protection of performers, producers of phonograms and broadcasting organizations – Rome Convention of 1961, The Convention for the protection of producers of phonograms against unauthorized duplication of their phonograms also known as the Geneva Phonogram Convention of 1971 relating to copyright protection for sound recordings , The Agreement on Trade related aspects of intellectual property rights (TRIPS Convention), The Paris Convention for the protection of industrial property signed in 1883 are some mainline international conventions and agreements that reveals the rights related to intellectual property.
In the Sri Lankan legal framework , laws relating to intellectual property has been addressed by Intellectual Property Act, No.36 of 2003. National Intellectual Property Office, situated under this Act, currently has the full authority to administrate and protect all intellectual property within the country. Within the scope of this governmental body’s power, they are bound to collect and communicate information on IP, to promote and educate the general public regarding IP, to propose policies and to settle field and ground level matters and conflicts and also this entity must provide facilities to enforce laws relating to IP.
IP Act No. 36 of 2003 provides provisions regarding both industrial and artistic works. Therefore it facilitates the constitutional ability to create and protect IP rights. IP is classified under several headings in the act as follows ; copyright and related rights, industrial designs, patents, marks & trade marks, collective marks, certification marks, trade names and layout designs of integrated circuits to be given the protection of law.
Under above provisions , to prove and substantiate the authorship and to gain the rights of the fruit of intellect, Patent is the most prominent method. An invention is patentable and the innovator will be granted the protection for his invention, if the invention complies with below mentioned prerequisites; its novelty, involvement of inventive steps and industrial applicability of the invention . An exclusive right for 20 years over the invention will be granted to the owner from the date of application for registration of the patent if the invention accords with above prerequisites. But when compared with other countries, there are huge problematic events that take place when issuing patents in Sr Lanka. Due to these inefficiencies, contretemps of local individuals and due to such circumstances foreign importers plays a major role than local inventors. In the other hand when there is lesser opportunities and when there is no value for the invention, brain drain increases and it is a huge disadvantage in terms of both economical and human resources vise.
Regarding marks & trademarks, it refers to names, phrases, sounds or symbols used in association with services or products. It often connects a brand with a level of quality on which companies build a reputation. Through a registration obtained under the National IP office, an exclusive rights over these marks & trademarks can be acquired. Laws related to unfair competition allows business community to take necessary actions against the improper activities of concurrent competitors .In such circumstances, confidential business information that has a commercial value, are regarded as trade secrets, until their confidentiality and privacy being kept as such by the owners and this provides a protection to these information to a certain extend.
Copyright or the exclusive rights given to the creators over their literary and artistic works as well as the related rights are another major aspect in the area of IP rights. Specialty of this right is that without registering, from the day of the publication of the literary works, the work is subjected and protected by copyright. Typically, the law of Sri Lanka allows duration of copyright throughout the life time of the author as well as for a 70 years time after the creator/ author dies.
Since intellectual property falls within the category of property, the owner of such property is subjected to all economical rights related to property. Therefore, the owner has the authoritative power to relinquish his rights, to dispose the rights and he can also grant the right to another by a license. But the moral right to protect the reputation of the composer and the dignity of the creation always rely upon the original author.
Also there is a clear acknowledgement that 72% of the world property falls within the criteria of IP and creation / fruits of IP, and us being a part of an universal community that is largely based on an innovative character, it is practical and expected to be educated and aware about the legal mechanisms and frameworks relating to IP, unfortunately there is no systematic communication regarding this need. Therefore awareness programs on promoting new inventions, protecting them, protecting the economical independence of the inventors and also for social progress educating the general public on this topic is very urgent matter at hand.
In the international level, as an agency of United Nations, World Intellectual Property Organization (WIPO), plays an immense role to uplift and develop laws and other legal infrastructures that facilitates the laws relating to IP rights of the member countries of this organization. The IP day is observed annually on 26th April, the event was established by WIPO in year 2000 to ‘‘raise awareness of how patents, copyright, trademarks and designs impact on daily life’’ and ‘‘to celebrate creativity, and the contribution made by creators and innovators to the development of societies across the globe’’. Each year, a message or a theme is associated with the world IP day and this year it is celebrated under the theme of ‘Intellectual Property & Small and Medium scale Entrepreneurs’. Purpose of the theme is to encourage entrepreneurs of small and medium scale and to promote and promulgate new business ideas that enhance more business opportunities in the developing market.
Translated into English by:
Vihangi Perera
Faculty of Law
University of Colombo
