WIPO’s involvement in making of the WIPO model of copyright
The involvement of the WIPO in making the WIPO model of copyright law was the main reason why Sri Lanka blindly followed the provisions of the WIPO
Model Law on Copyright for Developing Countries in the copyright regime of the IP Code. As the WIPO Model Law on Copyright for Developing Countries was based on the Berne Convention as revised by the Paris Act 1971, the manner in which it seeks to protect copyright owners’ translation rights is equivalent to the way in which the Berne Convention requires Member Countries to protect these rights. Although Sri Lanka wanted to enact a new copyright regime in the late 1970s to suit the needs of the country, particularly by removing the old British model of copyright law, the new copyright regime had to comply with Sri Lanka’s obligations under the Berne Convention. However, when embarking on a new copyright regime (which needed to be compatible with the Berne Convention) Sri Lanka had to face a major challenge. That was a lack of expertise and technical knowledge in Sri Lanka to draft a suitable copyright law which would also be compatible with the Berne Convention. It was against this background that Sri Lanka sought the assistance ofWIPO. WIPO is the main provider of technical assistance to developing countries in the field of intellectual property' (including copyright).[1] Through its secretariat, WIPO ‘provides technical assistance to developing countries in the areas of legislative advice, human resource development and training, institutional development and automation, and enforcement.’
The WIPO Model Law on Copyright for Developing Countries is a model law jointly formulated in 1976 by the WIPO and UNESCO. It was adopted in 1976 by the Committee of Governmental Experts convened by the Tunisian Government in Tunis with the assistance of the WIPO and UNESCO. The WIPO Model Law on Copyright for Developing Countries is fully compliant with the Berne Convention as revised by the Paris Act 1971. When Sri Lanka sought the assistance of the WIPO to formulate a new copyright regime in the IP Code, the WIPO provided Sri Lanka with the WIPO Model Law on Copyright for Developing
Countries as a guide to follow. Ultimately, Sri Lanka virtually copied the provisions of the WIPO Model Law on Copyright for Developing Countries in the new copyright regime in the IP Code. The way in which copyright owners’ translation rights are protected in the WIPO Model Law on Copyright for Developing Countries is inimical to the timely and affordable translation of copyright protected scientific and technical works published in developed countries. According to Section 4 of this Model Law, ‘the author of a protected work has the exclusive right’ to ‘make a translation’ of that work. This right extends to a period of the ‘life of the author and [50] years after his death’.[2] Section 7, which deals with fair use, provides exceptions to this exclusive right. Accordingly, this section allows translation of a work without the author’s consent for limited purposes, such as the user’s own personal and private use, quotations that are compatible with fair practice, or illustrations for teaching to the extent justified by the purpose. Although, Section 9 of the WIPO Model Law on Copyright for Developing Countries provides for a system of compulsory licenses for translation, it is severely restricted by the same cumbersome conditions that exist in the system of compulsory licenses for translation in the Berne Appendix.
The IP Code blindly followed the WIPO Model Law on Copyright for Developing Countries when protecting translation rights. The only exception to this was Section 15 of the IP Code. Apart from this, the IP Code did not provide for compulsory translation licenses.
Although Sections 10 and 13 of the IP Code corresponded respectively to Sections 4 and 7 of the WIPO Model Law on Copyright for Developing Countries, Section 15 of the IP Code was in clear conflict with the provisions of the WIPO Model Law on Copyright for Developing Countries. This was because the WIPO Model Law on Copyright for Developing Countries does not provide for a means of limiting the duration of translation rights when translations of copyright protected works are not published in local languages within a specified period. In contrast, the only special exception to translation rights under the WIPO Model Law on Copyright for Developing Countries is the compulsory translation licenses provided under Section 9. Be that as it may, the discrepancy between the WIPO Model Law on Copyright for Developing Countries and the IP Code caused by Section 15 of the IP Code (which is an innovative step on the part of the Sri Lankan Parliament) has virtually gone undetected. Even UNESCO, which was a party to the formulation of the WIPO Model Law on Copyright for Developing Countries, in its ‘Comparative Study of the Copyright Laws in force in the States of Asia and Pacific Region in relation to Tunis Model Law on Copyright for Developing Countries’, has listed Sri Lanka as one of the countries which has provisions in its copyright law for ‘compulsory non-exclusive license for translation’ by specifically
referring to Section 15 of the IP Code.[3] As such, more often than not the copyright regime in the IP Code has been identified as being compliant with the WIPO Model Law on Copyright for Developing Countries. Although Section 9 of the WIPO Model Law on Copyright for Developing Countries provided for a system of compulsory licensing for translation of copyright protected works, the IP Code did not provide for such a system. The reason for this was that when Sri Lanka ratified the Paris Act 1971 of the Berne Convention in 1978, it excluded the Berne Appendix.
