The TRIPS Agreement

The stringent and unbalanced manner in which copyright owners’ translation rights are protected in the Intellectual Property Act 2003 is primarily an outcome of the fact that the Act is compliant with the TRIPS Agreement. The TRIPS Agreement is the most striking and controversial multilateral instrument that has ever been designed to protect intellectual property rights. With regard to copy

right, it extends and reinforces ‘the highest level of international legal protection for copyright’ (including translation rights) provided in the Berne Convention.^[1]

Because Sri Lanka became a member to the WTO with the objective of fostering the country’s trade interests, it also had to become a member to the TRIPS Agreement. Accordingly, the TRIPS Agreement imposed a further obligation on Sri Lanka (in addition to its obligations as a Berne member) to implement the Berne Convention's standards (that advocate protection of translation rights at a higher level) into the Intellectual Property Act 2003.

The birth of TRIPS

The TRIPS Agreement is primarily a response to the inadequacies of the then existing multilateral arrangements for the protection of intellectual property rights such as the Berne Convention and the Paris Convention for the Protection of Industrial Property 1883 {Paris Convention). The TRIPS Agreement is an initiative of developed countries, particularly the United States, the European Union and Japan, which are net exporters of intellectual property products (including copyright protected knowledge products) to the developing world.

Matthews argued that multinational companies (domiciled in developed countries) played an important role in persuading the United States, the European Union and Japan to initiate the TRIPS Agreement. In particular, these multinational companies that sought to secure ‘trade regulation capable of protecting [their] global commercial interests to an extent not previously witnessed in relation to international protection of intellectual property rights’ instigated the process which culminated in the TRIPS Agreement and then linked that process to government action that emerged ‘most visibly in the United States . . . Europe and Japan’.

Prior to the TRIPS Agreement, ‘the protection of intellectual property rights in the international domain was perceived to be primarily a matter for the World Intellectual Property Organisation (WIPO)’. In particular, from its establishment in 1967, WIPO has been responsible for the administration of the Berne Convention and the Paris Convention. However, neither these conventions nor the actions of the WIPO were effective in combating the ‘growing trade in pirated

and counterfeited products’ which became clearly apparent from the 1970s.^[2] In particular, as Blakeney observed, ‘[f]rom the late 1970s there had been increasingly strident complaints, expressed primarily by [developed] countries, about the growth in the pirating of copyrighted works’. Notably, most of the pirating happened in developing countries.

From a critical point of view of the Berne Convention, there were three main reasons for the Convention's ineffectiveness in combatting the increasing levels of piracy of copyright protected works in developing countries. They were: (1) the absence of a meaningful dispute settlement mechanism in the Convention that would ensure Member Countries’ compliance with the Berne obligations, (2) the lack of effective measures in the Convention to enforce the Berne obligations at the national level and (3) the territorial coverage of the Convention.

• [1] See Akhil Prasad and Aditi Agrawala, Copyright Law Desk Book: Knowledge Access and Development (Universal Law Publishing, 2009) 154-155. 2 See, e.g., Yijun Tian, Re-Thinking Intellectual Property: The Political Economy of Copyright Protection in the Digital Era (Routledge-Cavendish, 2009) 27-28. 3 See Eric H Smith, ‘Worldwide Copyright Protection under the TRIPS Agreement’ (1996) 29 Vanderbilt Journal of Transnational Law 559, 560. 4 Duncan Matthews, Globalising Intellectual Property Rights: The TRIPs Agreement (Routledge, 2002) 1. 5 Michael Blakeney, ‘Intellectual Property in World Trade’ (1995) 1(3) International Trade Law & Regulation 76, 76.
• [2] Ibid. 2 Ibid. 3 See Carolyn Deere, The Implementation Game: The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries (Oxford University' Press, 2009) 46. 4 Laurence R Helfer, ‘Adjudicating Copyright Claims Under the TRIPs Agreement: The Case for a European Human Rights Analogy’’ (1998) 38(2) Harvard International Law Journal 357, 375. 5 Paris Act 1971 of the Berne Convention, art 33( 1).