Lack of awareness, transparency and ignorance
Lack of awareness, transparency and general ignorance on the part of Sri Lanka with regard to copyright law has contributed to rendering the TRIPS model of copyright law inimical to timely and affordable translation. Lack of awareness about intellectual property in general and copyright in particular is a relatively long-standing issue in Sri Lanka. In fact, when moving the second reading of the Code of Intellectual Property Bill in 1979, Minister Athulathmudali observed that:
The Bill is not something that is widely understood, naturally, because it is really a specialist’s field: but it really is revolutionary in terms of this particular class of property so necessary for the commercial development of Sri Lanka.
Moreover, in a paper published by the WIPO in 2006 the then Director General of Intellectual Property in Sri Lanka stated that ‘the poor awareness’ on intellectual property ‘is still a major issue in Sri Lanka, which needs constructive and pro-active attention’. As he observed, lack of awareness about intellectual property ‘is not an issue limited only to enforcement of IP rights. It is an issue
that spreads through the entire IP regime—nature of IP rights, creation, acquisition and management of IP rights, their relevance’.[1] Hemaratne observed that ‘[l]ack of awareness of intellectual property is not confined to the public in general but to government officials [in Sri Lanka] who are involved directly or indirectly in protection of intellectual property rights of the country’.
One of the reasons for the lack of awareness about intellectual property in Sri Lanka seems to be that intellectual property regimes in Sri Lanka, particularly copyright, have always been directly adopted and transplanted from either Britain, WIPO or from other countries. As a result, there is less discussion on intellectual property law at the local level in Sri Lanka. Another reason for the lack of awareness about intellectual property in Sri Lanka is the acute shortage of literature on Sri Lankan intellectual property jurisprudence. As Hemaratne observed:
The first and most important impediment to the development of intellectual property jurisprudence in Sri Lanka is the lacuna of literature . . . [T]here is little academic writings on the intellectual property rights in Sri Lanka. A few studies have been undertaken often aimed at gaining academic qualifications. Nevertheless, hardly any attempts have been made to study, as a piece, to understand the intellectual property in Sri Lanka by seeking the possibilities to introduce a system where social values have impacted the law.
A related issue that has arisen as a result of direct adoption and transplantation of intellectual property norms from other countries or international instruments to the Sri Lankan law is the lack of inclination and opportunity for the Sri Lankan courts to develop local judicial norms to determine issues relating to intellectual property. Instead of developing local judicial norms to suit the needs and interests of the country, the common approach of the Sri Lankan courts has been to follow the norms that have been set by the courts in other countries that have similar intellectual property laws to that of Sri Lanka.
The upshot of the lack of awareness, the lacuna of literature and the absence of local judicial norms on intellectual property in Sri Lanka is that there is less pressure from the courts, academia and other stakeholders to reform or revise the intellectual property law of Sri Lanka to suit the needs and interests of the country. The fact that up until this book, there has not been any attention on how the present Sri Lankan copyright regime impacts on one of the most crucial aspects of access to scientific and technical knowledge in Sri Lanka, namely, timely and affordable translation of copyright protected scientific and technical books and learning materials, is a good example of this.
The lack of transparency in the process of copyright law making in Sri Lanka is another contributing factor for high standards of protection of copyright owners’ translation rights in the Intellectual Property Act 2003. In developed countries such as Britain, Australia and the United States, the process of copyright law making is transparent and open. In particular, these countries have allowed the participation of almost all the relevant stakeholders in the process of copyright law making, and their views and responses have largely been taken into consideration. In contrast, the copyright law making process in Sri Lanka has never been transparent. As Rodrigo observed, ‘in Sri Lanka, there was hardly any fruitful discussion or debate before the Code of Intellectual Property Act 1979 and the Intellectual Property Act 2003 were passed by Parliament.’[2] Because of this, ‘the stakeholders of intellectual property, including copyright, were shut out of the law making process and were given little opportunity to contribute by expressing their views and commenting upon those others.’
The general ignorance on the part of Sri Lanka on how best to mould its copyright regime to meet the needs and interest of the country whilst adhering to the international obligations is another explanation for why Sri Lanka adopted stringent protection over translation rights in the Intellectual Property Act 2003. The fact that Sri Lanka did not ratify the Appendix to the Paris Act 1971 of the Berne Convention until 2005, and that even after this ratification it did not introduce the special exceptions to translation rights allowed in the Berne Appendix into the Intellectual Property Act, clearly explains this position.
As was observed in the previous chapter, the Berne Appendix, which was the main outcome of the Paris Conference for the revision of the Berne Convention held in 1971, introduced certain special exceptions to translation rights in developing countries. Accordingly, developing countries could cither introduce a compulsory licensing system for translation or a limitation on the duration of translation rights. Yet Sri Lanka specifically excluded the Appendix when it ratified the Paris Act 1971 in 1978. The reason for this exclusion remains unknown. One possible reason is that Sri Lanka may have thought that the special exceptions allowed under the Berne Appendix were unworkable. However, Sri Lanka’s subsequent ratification of the Berne Appendix in 2005 and the declaration to the effect that ‘it avails itself of the faculties provided for in Articles II and III of the Appendix’ suggest otherwise. More importantly, this subsequent
TRIPS copyright model 2003-2020 201 ratification and the declaration suggest that the reason for Sri Lanka’s exclusion of the Berne Appendix from its initial ratification of the Paris Act 1971 in 1978 was its ignorance. This is particularly so because Sri Lanka ought to have been aware of the faculties in the Berne Appendix since a delegation from Sri Lanka not only participated at the Paris Conference 1971 but also the head of that delegation acted as one of the Vice-Presidents of that Conference.
1
General Report, Records of the Diplomatic Conference for the Revision of the Rente Convention (Paris, 5-24 fuly 1971) [3], [12].
- [1] Ibid. 2 TSK Hemaratne, 'Intellectual Property Law and E-Commerce in Sri Lanka: Towards a Jurisprudence based on Constitution, Roman-Dutch Law and Buddhist Principle’ (PhD Thesis, Queen Mary, University of London, London, 2005) 38. 3 Ibid., 23-24.
- [2] WD Rodrigo, ‘Access to Information for Educational Purposes: The Role of Educational Exceptions to Copyright in a Developing Country like Sri Lanka’ (2008) 14(1) The Bar Association Law Journal 57, 61. 2 Ibid. 3 Ibid. 4 WIPO, WIPO Administered Treaties—Notifications—Berne Convention, Berne Notification No 92
.
