British model of copyright in Sri Lanka
Copyright law was first introduced into Sri Lanka during British rule (1796-1948).[1] The British model of copyright law was one of the means through which British interests were accepted in Sri Lanka. It also signified the right of Britain to use Sri Lanka as part of the British Empire. Surprisingly, even after Sri Lanka’s independence in 1948, the country remained a part of Britain as far as copyright law was concerned. This was because Sri Lanka continued with the British model of copyright law until 1979. As Minister Athulathmudali observed, it was only with the passage of the IP Code that Sri Lanka began to be liberated from ‘restrictive English practices in regard to copyrights’.
The Copyright Ordinance 1908 was the first domestically enacted copyright statute in Sri Lanka. This Ordinance was repealed and replaced by the Imperial Copyright Act 1911, which governed the subject of copyright in Sri Lanka until the IP Code was enacted in 1979. The Copyright Ordinance 1908 and the Imperial Copyright Act 1911 were hallmarks of British copyright, with their roots in the British Parliament. Although the Copyright Ordinance 1908 was enacted by the British Governor of Colonial Sri Lanka with the consent of the Ceylon Legislative Council, it was almost a verbatim reproduction of the Copyright Act 1905 of the Commonwealth of Australia which, in turn, was based on the British Copyright Bill 1900. Likewise, the Imperial Copyright Act 1911 was an all-embracing copyright statute enacted by the Parliament of Britain. According
The British copyright model 1908-1979 71 to Sherman and Bendy, with the passage of the Imperial Copyright Act Britain formally completed at a statutory level the process of ‘domestic embodiment of the model of copyright which was institutionalised in the international copyright agreements’ entered into by that country.[2] The Imperial Copyright Act 1911 became applicable in Sri Lanka by direct extension, as in many other countries of the British Empire.
For these reasons the Copyright Ordinance 1908 and the Imperial Copyright Act 1911 can hardly be described as Sri Lankan copyright legislation in the true sense of that term. As Minister Athulathmudali stated when he moved the second reading of the Code of Intellectual Property Bill 1979 in the Sri Lankan Parliament:
Our country [Sri Lanka] has never had a copyrights ordinance until this Bill was introduced. Until now it was 99 per cent based on English law—without even a parliamentary statute. This English law of 1911 applied to Sri Lanka and we have carried on with that. That is, their interests were accepted here—all their English copyrights and their right to use this country as part of England as far as the copyrights law in England was concerned.
3.2.1. The Copyright Ordinance 1908 and translation
The Copyright Ordinance 1908 was inimical to the timely and affordable translation of copyright protected scientific and technical works. The reason for this was the stringent and unbalanced way in which the Copyright Ordinance protected copyright owners’ translation rights.
The aim of the Copyright Ordinance 1908 was to secure the right of property in literary and artistic works. While securing this right, the Ordinance also granted an exclusive right to translate copyright protected books to authors (copyright owners) for a term of 42 years or for the author’s life and seven years. However, the Ordinance also recognised certain exceptions to this right. In particular, it provided that the translation right of the copyright owner did not extend to the following situations: where a book was translated for a person’s private use, where translation was with regard to fair extracts from a book or where the making of the translation constituted a fair dealing with the contents of a book ‘for the purpose of a new work, or for the purposes of criticism, review, or refutation, or in the ordinary course of reporting scientific information’. Further, the Ordinance
also provided for a compulsory licensing system in the event that a copyright owner of a book failed to make a translation thereof into a ‘particular language’ within a period of ten years from the date of the publication of that book.[3] Although the aim of the exceptions to copyright owners’ translation rights, as recognised under the Copyright Ordinance 1908, was to limit the rigour of translation rights and their adverse impact on translation, nonetheless these exceptions are unlikely to have facilitated timely and affordable translation. This is because the exceptions were narrowly defined. In particular, the translation of books in the absence of their copyright owners was only permitted for certain specified purposes. Also, they did not allow translation of a whole book to be reproduced in multiple copies. The compulsory licensing system provided for in the Ordinance is also unlikely to have facilitated the translation of copyright protected books in Sri Lanka because the time period a person had to wait to make an application to translate a copyright protected book was excessive. Thus it is not implausible to assume that the Copyright Ordinance 1908 would have impeded free translation of the copyright protected scientific and technical works required for promoting access to scientific and technical knowledge in Sri Lanka during the short period in which the Ordinance was in force. 3.2.2. The Imperial Copyright Act 1911 and translation Like the Copyright Ordinance 1908, the Imperial Copyright Act 1911 also protected copyright owners’ translation rights stringently. It was also inimical to the timely and affordable translation of copyright protected scientific and technical works. The Imperial Copyright Act 1911 was the first British copyright statute to protect the translation rights of domestic (British) authors. In particular, this Act granted an exclusive right to ‘produce, reproduce, perform, or publish any translation of [a] work’ to its author (copyright owner) throughout his or her life and a further period of 50 years after death.
The fair dealing defence in the Imperial Copyright Act 1911 was too narrow to facilitate timely and affordable translation of copyright protected works. This was because translation of copyright protected works under fair dealing was only
The British copyright model 1908-1979 73 permitted for certain specified purposes. In particular, there was a great deal of uncertainty about whether or not this defence would help to facilitate the translation of copyright protected works in whole and the reproduction of the translations in large quantities without the consent of copyright owners. Also, the defence only became applicable once infringement had been established. Thus the Imperial Copyright Act posed a severe obstacle to the timely and affordable translation of copyright protected scientific and technical works that Sri Lanka needed to promote access to scientific and technical knowledge. The Imperial Copyright Act also created severe hardships among literary circles and translators in Sri Lanka. As Jayathilaka stated, the provisions relating to translation rights in the Imperial Copyright Act were the most unfair provisions for Sri Lankans.[4] Also, as identified at the Conference on Sinhala Translation Literature held in 1965, the Ari suffered from a number of deficiencies, imposing many hardships on Sri Lankan translators and publishers.
- [1] See especially Copyright Act 1842, 5 & 6 Viet, c 45, s 29. See also DM Karunaratna, An Introduction to the Law of Copyright and Related Rights in Sri Lanka (Sarvodaya Vishva Lekha, 2006) 5; Harsha Cabral, Intellectual Property Law in Sri Lanka: The Act No 36 of2003, the TRIPS Agreement and a Case Digest (2004) 1. 2 Sri Lanka, Parliamentary Debates, 25 May 1979, col 501. 3 Ibid. 4 Karunaratna, above n 2, 5. 5 See Ceylon, Council Debates, Ceylon Legislature, 9 September 1908, 60-61; Copyright Law Review Committee, Report of the Committee Appointed by the Attorney General of the Commonwealth to Consider What Alterations Are Desirable in the Copyright Law of the Commonwealth (1959) 9.
- [2] Brad Sherman and Lionel Bendy, The Making of Modern Intellectual Property Law: The British Experience, 1760-1911 (Cambridge University Press, first published 1999, 2003 cd) 127-128. 2 Copyright Act 1911, 1 & 2 Geo 5, c 46, s 25. 3 Sri Lanka, above n 2, col 501. 4 Copyright Ordinance No 12 1908 (Sri Lanka) ss 9(1 )(c), 12(1). 5 Ibid., s 23.
- [3] Ibid., s 25. 2 Copyright Act 1911, 1 & 2 Geo 5, c 46, ss l(2)(a), 3; Walter Arthur Copinger and JM Easton, The Law of Copyright (Stevens and Haynes, 5th ed, 1915) 163. 3 Copyright Act 1911, 1 & 2 Geo 5, c 46, s 2(1).
- [4] K Jayathilaka, ‘Pitapath Aithiwasikam Panatha’ [Copyright Act], Dina Sangarawa (Ceylon), 25 October 1956, 2-3. 2 Department of Cultural Affairs, ‘Sinhala Parivarthana Sahithya’ [Sinhala Translation Literature] ( Report and Proceedings of the Conference on Sinhala Translation, Colombo, 16-25 February 1965). 3 For the first time, the international copyright regime of Britain conferred a limited translation right (for a duration of five years) on certain foreign authors through the International Copyright Act 1852. Subsequently, the International Copyright Act 1886 also conferred a limited translation right (for a duration of ten years) on certain foreign authors. Finally, the Imperial Copyright Act 1911 conferred a fully fledged translation right on certain foreign authors as well as domestic authors for the full term of copyright protection. International Copyright Act 1852, 15 & 16 Viet, c 12, s II; International Copyright Act 1886, 49 & 50 Viet, c 33, s 5; Copyright Act 1911, 1 & 2 Geo 5, c 46, ss 1 (2)(a), 29.
