I Introduction

Objective and scope of the book

This book is about why developing countries have failed to strike a proper balance in their copyright laws between the protection of translation rights and the ability of people to access translations of copyright protected scientific and technical books and learning materials. Timely and affordable translation of scientific and technical books and learning materials produced in developed countries is key to promoting access to scientific and technical knowledge in developing countries. However, the unbalanced manner in which copyright owners’ translation rights are protected in the copyright laws of developing countries has the potential to impede the timely and affordable translation of these knowledge products.

For developing countries, copyright in general and the right to translate in particular is essentially a balancing act between the protection of copyright owners’ rights and the people’s (users’) ability to access copyright protected works.[1] While on the one hand, it is necessary to provide protection to the legitimate interests of authors and publishers, on the other hand, it is equally important, if not more so, to ensure the free flow of information. This means that stringent copyright protection standards that protect translation rights, without appropriate exceptions to balance these rights with the people’s ability' to access copyright protected works are unsuitable for developing countries. Strict protection of translation rights without commensurate attention to their exceptions not only prevents people from accessing translations of copyright protected works directly but can also increase the cost of translations and thereby impede access to them indirectly. Despite the clear need for timely and affordable translation of scientific and technical books and learning materials, many developing countries have failed to strike a proper balance between the protection of translation rights and the people’s ability’ to access translations of copyright protected scientific and technical books and learning materials. This imbalance constrains access to scientific and technical knowledge in these countries.

In exploring the reason for this copyright imbalance, this book employs Sri Lanka as a case study. There are several reasons for selecting Sri Lanka for this purpose. Sri Lanka is a developing country that has many of the common characteristics of a typical developing country. It is a multilingual, multi-ethnic and multicultural country striving to maintain its diversity while promoting economic and social development. The local languages in Sri Lanka are geographically limited and the country has a colonial history. In addition, as will be seen later, up until 2003 Sri Lankan copyright law provided special exceptions to copyright owners’ translation rights. However, the present copyright law, which came into force in 2003, does not provide for any special exceptions to copyright owners’ translation rights. Thus, the copyright law of Sri Lanka protects translation rights of copyright owners in an unbalanced manner.

While the discussion in this book is predominantly focused on Sri Lanka, it indisputably relates to developing economies in general. Although the context and characteristics in every developing country concerning the need for translation of scientific and technical books and learning materials might not be identical, the need for such translation becomes crucial in countries where there is a multiplicity of languages or where one local language (which is not in general use in the world) dominates the spheres of culture, national identity, education, and so on. Sri Lanka shares many similarities with India and Bangladesh in this connection. All these countries are commonwealth nations and democracies. India is the largest commonwealth nation by population and Bangladesh is the fourth. Sri Lanka ‘has been the prototype and model for the new Commonwealth of the latter part of the twentieth century’.[2] India is the second most populous country and the most populous democracy in the world, which, together with Bangladesh and Sri Lanka, qualifies to make a broader representation of developing countries in general. While the Constitution of India prescribes that the ‘official language of the Union shall be Hindi’, it also casts a duty on the Union ‘to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India’. In addition, the Indian Constitution also specifies 22 local languages in its Eighth Schedule. The Constitution of the People’s Republic of Bangladesh 1972 stipulates Bangla [Bengali] as the state language of Bangladesh, and stresses that the ‘unity and solidarity of the Bangalee nation, which deriving its identity from its language and culture . . . shall be the basis of Bangalee nationalism.’ While Sinhala and Tamil constitute the official and national languages in Sri Lanka in terms of the Constitution of the Democratic Socialist Republic of Sri Lanka 1978 the Constitution

also obliges the State to assist ‘the development of the cultures and languages of the People.’[3] Thus, the local languages play a prominent role in all these three countries which form an intrinsic part of culture, self-identity and nationalism. As in the case of Sri Lanka, the copyright laws of India and Bangladesh are of British origin, and they follow the British tradition of copyright owing to the effects of colonisation. The comparative approach adopted in the ensuing discussion will further reveal how the facts and findings relating to Sri Lanka throughout this book relate to India, Bangladesh and other developing economies in general.

  • [1] See Frederick M Abbott, ‘The WTO TRIPS Agreement and Global Economic Development’ (1996) 72 Chicago-Kent Law Review 385, 386. 2 WD Rodrigo, ‘Copyright Law in the Digital Era: A Comparative Study of Sri Lanka, Australia and the United States’ (PhD Thesis, University of Queensland, 2007) 44.
  • [2] Sir Charles Jeffries, Ceylon: The Path to Independence (Pall Mall Press, 1962) ix. 2 Claire O’Kane et al., ‘Protection in Action: Regional Evaluation of the Effectiveness of Communin' Based Child Protection Mechanisms’ (Report, Plan International, September 2014) 11. 3 The Constitution of India, art 343 (1). 4 Ibid., art 351. 5 The Constitution of the People’s Republic of Bangladesh 1972, art 3. 6 Ibid., art 9. 7 The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, arts 18 & 19.
  • [3] Ibid., art 27(10). 2 Abdul Waheed Khan, ‘Universal Access to Knowledge as a Global Public Good’ on Global Policy Forum (June 2009) . 3 Ismail Radwan et al., ‘Building the Sri Lankan Knowledge Economy’ (Report, World Bank, March 2008) 16. 4 See Mark A Langley, ‘The Power of Knowledge’ in ‘Pulse of Profession: Capturing the Value of Project Management through Knowledge Transfer’ (Report, Project Management Institute, March 2015) 2. 5 Amy Kapczynski, ‘Access to Knowledge: A Conceptual Genealogy’ in Gaelic Krikorian and Amy Kapczynski (eds), Access to Knowledge in the Age of Intellectual Property (Zone Books, 2010) 17,18.
 
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