UNIVERSITY OF COLOMBOFACULTY OF ARTS

SOCIAL POLICY ANALYSIS & RESEARCH CENTRE

THE IMPACT OF GLOBALIZATION ON DEVELOPMENT PROJECT

The Implications of enforcing Intellectual Property Rights Requirements on Education, Research and Development with special focus on Access

to Knowledge : The Sri Lankan Experience

N. SelvakkumaranDean, Faculty of Law

University of Colombo

Overview of Presentation

Overview of Intellectual Property Rights IPRs in Sri Lanka

Copyrights Fair use & economic rights Related (neighbouring) rights Patents Implementation

Implications on Education, Research & Access to Knowledge

Conclusion

Overview of Intellectual Property Rights

Why are Intellectual Property Rights recognized? Legal recognition for creations of intellectual

labour as how creations of manual/physical labour receive recognition

Moral respect and economic benefit for the creator of new knowledge or new products

Developments in technological and information & communication technological arenas have contributed to the recognition of new IP rights or refinements of existing IP rights.

Continued

Establishment of WTO and the making of TRIPS Agreement have made IPRs to play a significant role in trade related bilateral and multilateral agreements between countries. Economic focus of IPRs has overtaken the moral focus of creators of IPs.

Establishment and workings of WIPO as a specialized agency of the UN in 1967 show the importance given to IPs at the international arena. Its core tasks - Developing International IP laws and standards Encouraging the use of IP for economic development Delivering global IP protection services, etc

Continued

IP law tries to ensure law & order in the commercial domain both within the national boundaries and outside them.

It tries to strike a balance between competing interests of the IPR holder and ordinary citizens.

IP laws, while giving protection to intellectual creations, do restrict the rights of individuals in many ways as well. They put a gloss on some of the fundamental human rights, such as freedom of speech & expression, freedom to engage in trade, vocation, employment, etc.

IP law relating to copyright, neighbouring rights, patents, etc has a telling impact on the development of education, research, economy of developing countries.

Continued

Apart from the TRIPS Agreement, there have been many other International Conventions & Treaties on IP.

However, there is a difference between them and TRIPS. TRIPS Agreement lays down the minimum

standards of IPR protection that should be accorded by member countries. Time period for compliance varies between developed, developing and least developed countries.

There is, however, no freedom to leave out some conditions and accept others. It is take it (fully) or leave it (fully) !

IPRs in Sri Lanka

Pre 1979 position The Code of Intellectual Property Act No. 52

of 1979 – Codified the law on IPRs – all aspects came under

one Act The Act is almost a copy of the WIPO’s Model IP law

for developing countries; it was the first in the South Asian region

It was not strictly enforced due to many reasons The Intellectual Property Act No. 36 of 2003

It complies with the requirements of the TRIPS Agreement

continued

The following IPRs have been recognized under the Act: Copyrights, neighbouring (related) rights, industrial

designs, patents, trade & service marks, trade names, layout designs of integrated circuits, geographical indications.

Protection against unfair competition and undisclosed information

Elaborate provisions have been made with regard to administration of the Act and enforcement of rights under the Act.

SC’s determination on the Bill – Provision for compulsory licensing

COPYRIGHTS & RELATED RIGHTS

Any work which is an original intellectual creation in the literary, artistic or scientific domain is protected as a copyrighted work. These will include Books, pamphlets, articles, speeches, lectures,

audiovisual works, dramatic works, photographs, works of architecture, musical works, maps, plans, sketches relating to geography, topography or science, works of applied art.

Computer programmes There is protection for derivative works also:

Translations, adaptations, arrangements, transformations ..

Continued…

The law does not protect any idea, concept, principle, discovery, procedure, system, method of operation, etc. It protects expressions only.

It does not extend protection to official legislative or administrative text or its official translation

Exclusive economic right – Reproduction, translation, adaptation, public

distribution by sale, rental and export, rental, importation, public display, public performance, broadcasting, other communication to the public

Moral rights -

Fair Use & Economic Rights

Fair use for purposes such as Criticism, comment, news reporting, teaching

(including multiple copies for classroom use), scholarship or research - is not an infringement of copyright.

Following factors will play a role in deciding fair use in each case – the purpose & character of the use (commercial

purpose or non-profit educational purpose) nature of the work and the amount & volume of

the portion the effect of the use upon the potential market for

the work

Continued..

Private reproduction in a single copy of a published work is permitted without the authorization of the copyright owner, if it is made from a lawful copy and for his/her own personal purpose.

However, this will not extend to the reproduction of computer programmes, whole or substantial part of a data base, whole or substantial part of a book when the reproduction takes place in the form of reprography, etc.

Continued…

The Act permits the reproduction of a short part of a published work for teaching purposes, provided the reproduction is compatible with fair practice.

The Act also permits the reprographic reproduction of published articles, short works or extracts for face to face teaching in an educational institution without commercial gain.

Any library/archives can make a single copy by reprographic method

Reproduction in a single copy of a computer programme by the lawful owner is permitted.

Continued..

The importation of a copy of a work by a physical person for his own personal purposes is authorized.

Duration of copyright – Economic & moral rights subsist during the

life time of the author and for a further period of 70 years.

Related Rights

Performer’s rights

Producers of sound recordings

Broadcasting organisations

Expressions of folklore

Enforcements of rights

Patents Any invention -a product or process- is patentable

if it is new, involves an inventive step and is industrially applicable.

The following are not patentable – Discoveries, scientific theories, mathematical methods Plants, animals and other micro organism (except

transgenic) Schemes, rules, methods for doing business, playing

games, Methods for treatment of human or animal body, etc.

Requirements for granting patent – Invention must be new, involve an inventive step, and

is industrially applicable

Continued…

Duration of patent - 20 years Rights of an owner of a patent –

To exploit the patented invention To assign or transmit the patent To conclude licence contracts

Limitation on owner’s rights Acts done for scientific research will not be

a violation; but, if it is done for commercial or industrial purpose, it will be a violation

Continued…

Where the exhaustion rules apply, the rights of patentee are limited

Compulsory licencing can be concluded under certain situations Director General has authority to issue

compulsory licence on an application being made by some one, or where there is a national emergency, extreme urgency or for purposes such as national security, nutrition, health or for developing other vital section of the national economy.

Implementation

Elaborate provisions have been incorporated in the Act to ensure its effective implementation.

Persons whose rights are affected could move the court and obtain assistance to enforce their rights and obtain appropriate relief for any damage caused to them.

Enforcement of IPRs does take place at the instance of many holders of IPRs. The Director General’s Office and courts of law are helping in the enforcement of IPRs.

Implications on Education, Research & Access to

knowledge Being a developing country, stringent IPR

protection regime works against the interest of people, in particular when it comes to education, research and having access to knowledge due to high cost which is beyond the reach of ordinary people.

It is extremely so when they are to be obtained from foreign countries. It will be seen as a tool of exploitation of poorer countries. These countries are impoverished educationally and their thirst for knowledge and development is stultified.

Continued.. In the area of copyright protection of printed

works, our Act contains fair use provisions which are somewhat reasonable, though when it comes to computer programmes (software) people and institutions find it difficult to go for copyrighted versions of reputed companies.

Pirated versions are freely available and if not for them, majority of persons and institutions would be without the use of computers. In this respect, some arrangements must be made between the respective parties to provide these programmes at an affordable cost to developing countries.

Continued..

In the area of musical, dramatic & cinematic productions, local industry will fold up if IPRs are not strictly enforced. However, enforcing the said rights vis-à-vis foreign owners of copyright & related rights will again work hard against the people of developing countries.

Arrangements with the right holders of these industries have been fairly alright, though video, cd and dvd clubs do infringe these arrangements in a very big way.

Continued..

In the area of patent, pharmaceutical products and life-saving equipment become inaccessible for developing countries due to patent regime.

The power to grant compulsory licence to exploit patents is a welcome measure though it is generally exercised in extreme cases of unreasonable actions by patent-right holders.

There should be a mechanism which should strike a reasonable balance between profit making and safeguarding human life or alleviating human sufferings.

Conclusion

Developing countries find it difficult to further their research and development due to stringent regime relating to patent and copyright. They, thereby, lag behind and the gap between developed countries and developing countries continues to grow due to this.

Recognizing this, there are attempts by institutions in different countries to promote bilateral researches under material transfer agreements which permit institutions in developing countries to engage in research and development activities without incurring heavy financial burdens.

Continued

IPR protection regimes play a significant role in making decisions relating to foreign direct investments by developed countries as well.

In the globalized economic order, FDIs are looked upon by developing countries to improve their economic conditions. However, strong IPR protection regimes insisted upon by developed countries are placing financial burden on the poorer countries. Sri Lanka is not an exception to this phenomenon. Uniformity of IPR regime across developed and developing countries is reconsidered.

Continued… “Although the fundamental incentives posed

by patents, trademarks, and copyrights should be the same around the world, developing countries differ from their industrial counterparts in their innovative potential, the education of their work force, the structure and funding of research and development, the management of technological assets, and the existence of complementary intellectual property institutions, such as collection agencies and technology-transfer offices.

Continued..

Empirical research can make an important contribution in identifying the kind of intellectual property instruments that work best for a particular stage of development or a particular set of institutional circumstances.”

Carsten Fink & Keith E MaskusIntellectual Property and Development

Lessons from Recent Economic Research(2005)

Continued..

This underscores the necessity to revisit the present uniform IPR regime in the light of different stages of development achieved by countries or economic strength at which they are at.

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