Trade and investment concerns: the primary reason for the TRIPS model of copyright law

The primary reason for Sri Lanka to enact the TRIPS model of copyright law, which is inimical to timely and affordable translation, was the trade and investment concerns of Sri Lanka. Because of trade and investment concerns, Sri Lanka entered into the TRIPS Agreement and a bilateral treaty on copyright with the United States. Also, immediately preceding the enactment of the TRIPS model of copyright law, Sri Lanka was negotiating a Free Trade Agreement (FTA) with the United States to promote its exports to the United States market. All these initiatives, i.e. the TRIPS Agreement, bilateral treaty on copyright with the United States and the proposed FTA with the United States, required Sri Lanka to enact the TRIPS model of copyright law.

To reap the benefits of international trade, Sri Lanka had to become a member to the World Trade Organisation (WTO) in 1995, which required it to undertake the obligations of the TRIPS Agreement. The TRIPS Agreement, which advocates high standards of copyright protection (including translation rights) in the Paris Act 1971 of the Berne Convention, requires all Member Countries effectively to implement these standards in their national copyright regimes. Thus, Sri Lanka enacted the TRIPS model of copyright law in the Intellectual Property Act 2003, incorporating high standards of copyright protection (including translation rights) in the Paris Act 1971 of the Berne Convention.

However, at the time Sri Lanka was seeking to meet its TRIPS obligations, it was already under similar copyright obligations to protect the copyright owners’ translation rights by virtue of a bilateral treaty entered into with the United States, that is, the Agreement on the Protection and Enforcement of Intellectual Property Rights between the United States of America and the Democratic Socialist Republic of Sri Lanka 1991 (US-Sri Lanka IPR Agreement).^[1] The US-Sri Lanka IPR Agreement is an outcome of Sri Lanka’s trade and investment concerns. From the perspective of United States, it was also an interim and auxiliary measure which aided the conclusion of the TRIPS Agreement. Be that as it may, since the US-Sri Lanka IPR Agreement remained alive at the time of enactment of the Intellectual Property Act 2003, Sri Lanka had to give effect to the obligations under the US-Sri Lanka IPR Agreement in the copyright regime of the Intellectual Property Act 2003.

On the eve of the enactment of the Intellectual Property Act 2003, Sri Lanka was looking to improve its trade relations with the United States to further Sri Lanka’s foreign exports (particularly textile and garments) to the United States. This required Sri Lanka to explore the possibilities of concluding a FTA with the United States. It is accepted that FTAs are a means by which the United States set high standards of copyright protection, often beyond the TRIPS obligations (commonly referred to as TRIPS-plus standards), in foreign countries. In particular, FTAs with the United States require the other parties to set TRIPS-plus standards in their copyright regimes. As such, the copyright regime in the Intellectual Property Act had to adopt high standards of copyright protection which included TRIPS-plus standards as a prerequisite for Sri Lanka to conclude a FTA with the United States.

• [1] Agreement on the Protection and Enforcement of Intellectual Property Rights between the United States of America and the Democratic Socialist Republic of Sri Lanka 1991. 2 Karunaratna, above n 2, 8. 3 See especially Jakkrit Kuanpoth, 'Intellectual Property Protection after TRIPS: An Asian Experience’ in Justin Malbon and Charles Lawson (eds), Interpreting and Implementing the TRIPS Agreement: Is it Fair? (Edward Elgar, 2008) 71. 4 Peter Drahos and John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy (EARTHSCAN, 2002) 10; Jagdish Bhagwati, In Defence of Globalisation (Oxford University Press, 2004) 183; Aravind Panagariya, 'TRIPs and the WTO: An Uneasy Marriage’ in Keith E Maskus (ed), The WTO, Intellectual Property Rights and the Knowledge Economy (Edward Elgar, 2004) 91, 91; UNDP, Making Global Trade Work for People (EARTHSCAN, 2003) 221; Laurence R. Helfer, 'Regime Shifting: The TRIPs Agreement