The digital world plays an important role in our lives today. Intellectual Property Law is one of the many legal frameworks that help us navigate this world by securing our rights.
Law is Light is a series of trilingual legal discussions to shed light on the law. The Latin maxim “ignorantia legis neminem excusat” translates to ignorance of the law is not an excuse. The Pro Bono Committee of the Law Students’ Association of Sri Lanka strives to educate the general public by simplifying the laws in our country. In the third discussion, the programme was focused on “Intellectual Property” to provide an understanding of the rights available for property created by the intellect.
The discussion featured Attorneys-at- Law practicing in the field of Intellectual Property law: Thishya Weragoda is an independent legal counsel at Neelakandan & Neelakandan, a visiting lecturer at the Institute for the Development of Commercial Law and Practice and Aparajitha Ariyadasa, is a visiting lecturer in cyber law at the University of Plymouth and at IJTS. She is also a senior consultant at Ceylon Chamber of Commerce and senior counsel, chairperson of Lanka Intellectual Property Organisation.
What is intellectual property?
The concept of property concerns ownership and possession. Property can be tangible – what we can see, touch and feel and the intangible – value created by assets which cannot be seen. The name Coca Cola is a well-known product in the world. The value is not in the bottle but the brand loyalty. The brand name is an intangible asset. Photographs are intellectual creations and any monetisation made out of it belongs to the photographer. The law recognises five different classes of intellectual property:
4. Industrial designs
5. Confidential information and trade secrets
The Intellectual Property Law protects literary, artistic and scientific work. People can benefit from what they create. Intellectual property splits into two categories; one is associated with trade, such as industrial plans, scientific plans, patents, brand names and brand logos (industrial property). The other is intellectual properties with the right to publication such as literary works, artistic and scientific works, folklores, computer programmes, architectural plans, and maps. There are also related rights; these entail rights of actors, rights of broadcasters, rights of sound engineers.
What is the importance of Intellectual Property Law?
This law helps protect new creations by providing economic rights to the inventors and the consumers by ensuring genuine products are bought.
Can you elaborate on the five different classes of Intellectual Property?
Copyright – The creations of the mind which are literal creations, artistic creations or scientific creations will be copyrightable creations. S.5 and S.6 of the Intellectual Property Act recognises the copyrightable works. The S.9 of the Act states the creator of the works hold on to economic rights. These economic rights can be sold to another individual. Copyrights will end after lifetime plus a 70 year period and the matter falls into public domain.
Trademarks – Logos can be registered as a trademark, if it has value. Whether a mark is registered or unregistered, there are rights attached to it. As long as you pay on for the registration of the mark to the registrar’s office, the trademark will be recognised. When a registration expires it does not mean there are no rights associated. Unregistered marks will also have protection. That particular mark cannot be used without authorisation. There is a trade mark registry at the national intellectual property where you can look for any conflicting or similar mark.
Patents – this concerns new inventions. There needs to be novelty and be able to solve problems. Once a patent is registered they get a 20 year period and after such period expires, it falls into public domain.
Industrial design – the rights and requirements are slightly less than for a patent
Geographic indicators – like the basmati rice or the Champaign comes from a particular region. Someone who makes tea from Kenya can’t say its Sri Lankan tea. A person who makes sparkling wine in Australia cannot say this is Champaign.
Confidential information and Trade secrets – The recipe for Coca Cola is unknown and a well-kept trade secret. The people involved in the manufacturing are bound to protect that secret.
If a person wants to register his own creation or invention, what is the procedure?
There are two methods of protection. The less stringent is the “industrial design’ scheme and the other is the most strenuous “patent” scheme. They are two different regimes and the requirements are different. The Intellectual Property act Chapter three covers Industrial designs. It is required to establish some form of novelty and a use in it. The registration is done at the National Intellectual Property office. There are two types of applications, one for industrial design and one for patents, decide which one applies to you. For Patents, state your claim and give a full disclosure of your creation.
Does a person require the assistance of an Attorney or can he do it on his own?
Services of a patent drafter is necessary for the application of a patent. In SriLanka they are Attorneys- at- Law but if you look at countries like Singapore, the US and the UK, they are patent drafters.
Is plagiarism when in written work, covered by the IP law?
This is considered as an ethical right. Where there is a substantial amount of information copied and amounts to unfair competition, it may amount to an infringement of IP laws. It may amount to a theft when the original writer is not mentioned.
When it comes to Music, we see different versions of an old song. How can upcoming musicians create their own version of the song, in doing so will they be infringing another’s rights?
Reproducing a song will fall within the restrictions of economic rights of S.9 in the IP Act. The permission of the lyricists, producer and composer is required.
When it comes to designer items, could you explain the A-grade category and how it affects IP rights?
The A- grade or B- grade bags are not always replicas, they can be originals which were rejected by the original owner. These end up in the market. An original product can come to the market through unrecognised channels, this is called grey market imports. This cannot be stopped due to it being an original product, unless there is an exclusive territorial agreement with the agents.
A counterfeit product might look identical but it is not an original. Counterfeits are illegal.
On instagram we see people selling replicas of branded items in Sri lanka. Can replicas be sold at the price of the original item? Does a consumer who buys a replica at the original price have redress?
If there is a local agent, it can be reported.
Does infringing intellectual property law amount to criminal liability?
A violation of IP can lead to a civil and criminal liability. Example – if someone copies the song X created and makes money out of selling it, X can go the Magistrate’s Court for an order to have these CDs destroyed, and obtain an injunction order.
What are the remedies available for an infringement of IP law?
First check whether rights have been infringed. Next file a criminal and civil action. The person who infringed your rights can be arrested. An injunction order be obtained or seek damages.
If someone uses a copyrighted picture without attributing rights to the owner, what legal action can be taken?
According to Copyright law, by virtue of creation, irrespective of artistic merit, it is protected. The moment a photograph is taken, it is protected.
If a self-portrait is used without that person’s permission, can that individual take any action under the IP Law?
If the photograph was taken on behalf of the individual by the photographer, the individual would be the owner of the copyrights. The element of privacy ensures your profile picture cannot be taken for an advertisement. The permission of the individual in the picture is required.
Can an individual repaint an ancient piece of art work, say the portrait of Mona Lisa, and profit out of it?
Mona Lisa is Da Vinci’s creation. The copyright protection lifespan has expired due the demise of the painter 500 years ago. The painting is part of the public domain, therefore considering drawing it will not be a problem.
Copyrights will be active for new paintings.
Does IP protection have a time limit?
In general for expressions, for a writer it will be lifetime and 70 years. Trademarks have to be renewed every 10 years for an unlimited time.
Pro bono Secretary 2020-2021
The complete discussion is available on our YouTube channel ‘Law Students Association of
Sri Lanka’, in all three languages.
Why Small Farms will be the backbone of food security
The ecological axiom that: ‘Energy flow through a system tends to organise and simplify that system’, is abundantly clear in agriculture. As farms moved from small interdependent units, bounded by fences and hedgerows, to large cropping fields to accommodate machine management, we lose the biodiversity that once existed on that landscape and the biomass that provided the Ecosystem Services. This sacrifice was rationalised through the invocation of economic profit. The economic ‘profit’ gained by subsidies on fossil fuel and uncontrolled extraction from the Global Commons. The ‘development’ of agriculture has become a race to control the commodity market. The farmer ceased to be a feature of the farm. In a telling statement, the farmers of Sri Lanka sent the following statement to the CGIAR in 1998 :
‘We, the farmers of Sri Lanka would like to further thank the CGIAR, for taking an interest in us. We believe that we speak for all of our brothers and sisters the world over when we identify ourselves as a community who are integrally tied to the success of ensuring global food security. In fact it is our community who have contributed to the possibility of food security in every country since mankind evolved from a hunter-gather existence. We have watched for many years, as the progression of experts, scientists and development agents passed through our communities with some or another facet of the modern scientific world. We confess that at the start we were unsophisticated in matters of the outside world and welcomed this input. We followed advice and we planted as we were instructed. The result was a loss of the varieties of seeds that we carried with us through history, often spanning three or more millennia. The result was the complete dependence of high input crops that robbed us of crop independence. In addition, we farmers producers of food, respected for our ability to feed populations, were turned into the poisoners of land and living things, including fellow human beings. The result in Sri Lanka is that we suffer from social and cultural dislocation and suffer the highest pesticide- related death toll on the planet. Was this the legacy that you the agricultural scientists wanted to bring to us ? We think not. We think that you had good motives and intentions, but left things in the hands of narrowly educated, insensitive people.’
The diverse farm had to yield to production monoculture, which was made possible through the burning of fossil fuels. Ironically the burning of fossil fuels is the major reason for the current destabilised climate and threat to agriculture. One consequence of climate change is the predicted rise in global temperatures. If ambient temperatures exceed 40 degrees , which has become the reality in many places even today, food production will be compromised. All the food we eat originates with plants and plants produce using photosynthesis. Photosynthesis, or the capture of solar energy by plants, is done with chlorophyll, the thing that makes plants green and chlorophyll begins to break down after 40 degrees. Landscapes whose summer temperatures go beyond this limit will have smaller and smaller crops as the temperatures increase. The only solution to this oncoming crisis, is to begin introducing trees at strategic points on the landscape.
Trees and all other forms of vegetation cool the environment around them through the transpiration process, which takes place in the leaves. The water absorbed by the roots is sent up to the leaves which release it as vapor, cooling the air around it. Measurements on trees done by research institutions worldwide, indicate that an average large tree produces the cooling equivalent of eight room sized air conditioners running for 10 hours, a cooling yield 0f 1,250,000 Bthu per day. Plantations of trees have been recoded to have daytime temperatures at least 3 degrees below the ambient. This is an important aspect of Ecosystem Services that needs to be considered for adaptive agriculture.
Small farms which produce food with low external energy and maintain high biomass and biodiversity, are the models of food production that can face the climate compromised future before us. Capital, resource and energy expensive agricultural systems could fail in a high temperature future and threaten global food security, we need options. One would be to encourage a consumption and distribution system that facilitates small farmers to enter the market. Another would be to realise the value of the ecosystem services of a farm and develop systems to measure and reward. We are all aware of the future before us. Now is not the time to stand blinking like a deer facing the headlights.
But placing trees in and around cropping areas becomes a problem in large cropping fields designed to accommodate machine management. The management of such trees and hedgerows requires needs that cannot be provided without human management. Agricultural landscapes will need management that will be adaptive to the changing climate. An example would be; small interdependent units bounded by fences and that increase biodiversity and the biomass while providing Ecosystem Services.
Investment in food security, should take climate change seriously. All new agricultural projects should address the heat thresholds of the planned crops. The Sri Lankan country statement at COP 21 stated that :
“We are aware that the optimum operating temperature of chlorophyll is at 37 deg C. In a warming world where temperatures will soar well above that, food production will be severely impacted.”
And that :
“We are aware that the critical Ecosystem services such as; production of Oxygen, sequestering of Carbon, water cycling and ambient cooling is carried out by the photosynthetic component of biomass. This is being lost at an exponential rate, due to the fact that these Ecosystem Services have not been valued, nor economically recognised.”
These statements cry out for the recognition of the role that small farms will have to play in the future. In a temperature compromised future, small farms with high standing biomass, through their cooler temperatures will continue to produce food in heat stressed periods. If such Ecosystem Services can be given a value, it will strengthen the economy of small farms and ensure local, sustainable food production into the future.
Small farms which produce food with low external energy and maintain high biomass and biodiversity, are the models of food production that can face the climate compromised future before us. Capital, resource and energy expensive agricultural systems could fail in a high temperature future and threaten global food security, we need options. One would be to encourage a consumption and distribution system that facilitates small farmers to enter the market. Another would be to realize the value of the ecosystem services of a farm and develop systems to measure and reward. We are all aware of the future before us. Now is not the time to stand blinking like a deer in sheadlights.
Encouraging signs, indeed!
Local entertainers can now breathe a sigh of relief…as the showbiz scene is showing signs of improving
Yes, it’s good to see Manilal Perera, the legendary singer, and Derek Wikramanayake, teaming up, as a duo, to oblige music lovers…during this pandemic era.
They will be seen in action, every Friday, at the Irish Pub, and on Sundays at the Cinnamon Grand Lobby.
The Irish Pub scene will be from 7.00 pm onwards, while at the Cinnamon Grand Lobby, action will also be from 7.00 pm onwards.
On November 1st, they are scheduled to do the roof top (25th floor) of the Movenpik hotel, in Colpetty, and, thereafter, at the same venue, every Saturday evening.
Constructive dialogue beyond international community
by Jehan Perera
Even as the country appears to be getting embroiled in more and more conflict, internally, where dialogue has broken down or not taken place at all, there has been the appearance of success, internationally. President Gotabaya Rajapaksa will be leading a delegation this week to Scotland to attend the UN Climate Change Conference (COP26). Both the President, at the UN General Assembly in New York, and Foreign Minister Prof G L Peiris, at the UN Human Rights Council, in Geneva seem to have made positive impacts on their audiences and, especially amongst the diplomatic community, with speeches that gave importance to national reconciliation, based on dialogue and international norms.
In a recent interview to the media Prof Peiris affirmed the value of dialogue in rebuilding international relations that have soured. He said, “The core message is that we believe in engagement at all times. There may be areas of disagreement from time to time. That is natural in bilateral relations, but our effort should always be to ascertain the areas of consensus and agreement. There are always areas where we could collaborate to the mutual advantage of both countries. And even if there are reservations with regard to particular methods, there are still abundant opportunities that are available for the enhancement of trade relations for investment opportunities, tourism, all of this. And I think this is succeeding because we are establishing a rapport and there is reciprocity. Countries are reaching out to us.”
Prof Peiris also said that upon his return from London, the President would engage in talks locally with opposition parties, the TNA and NGOs. He spoke positively about this dialogue, saying “The NGOs can certainly make a contribution. We like to benefit from their ideas. We will speak to opposition political parties. President Gotabaya Rajapaksa is going to meet the Tamil National Alliance on his return from COP26, which we will attend at the invitation of the British Prime Minister. So be it the NGO community or the foreign diaspora or the parliamentary opposition in Sri Lanka. We want to engage with all of them and that is very much the way forward”
The concept of a whole-of-government approach is indicative of a more cohesive approach to governance by government ministries, the public administration and state apparatus in general to deal with problems. It suggests that the government should not be acting in one way with the international community and another way with the national community when it seeks to resolve problems. It is consistency that builds trust and the international community will trust the government to the extent that the national community trusts it. Dialogue may slow down decision making at a time when the country is facing major problems and is in a hurry to overcome them. However, the failure to engage in dialogue can cause further delays due to misunderstanding and a refusal to cooperate by those who are being sidelined.
There are signs of fragmentation within the government as a result of failure to dialogue within it. A senior minister, Susil Premajayantha, has been openly critical of the ongoing constitutional reform process. He has compared it to the past process undertaken by the previous government in which there was consultations at multiple levels. There is a need to change the present constitutional framework which is overly centralised and unsuitable to a multi ethnic, multi religious and plural society. More than four decades have passed since the present constitution was enacted. But the two major attempts that were made in the period 1997-2000 and again in 2016-2019 failed.
President Rajapaksa, who has confidence in his ability to stick to his goals despite all obstacles, has announced that a new constitution will be in place next year. The President is well situated to obtain success in his endeavours but he needs to be take the rest of his government along with him. Apart from being determined to achieve his goals, the President has won the trust of most people, and continues to have it, though it is getting eroded by the multiple problems that are facing the country and not seeing a resolution. The teachers’ strike, which is affecting hundreds of thousands of schoolchildren, is now in its fourth month, with no sign of resolution. The crisis over the halting of the import of chemical fertiliser is undermining the position of farmers and consumers at the present time.
An immediate cause for the complaints against the government is the lack of dialogue and consultation on all the burning issues that confront the country. This problem is accentuated by the appointment of persons with military experience to decision-making positions. The ethos of the military is to take decisions fast and to issue orders which have to be carried out by subordinates. The President’s early assertion that his spoken words should be taken as written circulars reflects this ethos. However, democratic governance is about getting the views of the people who are not subordinates but equals. When Minister Premajayantha lamented that he did not know about the direction of constitutional change, he was not alone as neither does the general public or academicians which is evidenced by the complete absence of discussion on the subject in the mass media.
The past two attempts at constitutional reform focused on the resolution of the ethnic conflict and assuaging the discontent of the ethnic and religious minorities. The constitutional change of 1997-2000 was for the purpose of providing a political solution that could end the war. The constitutional change of 2016-19 was to ensure that a war should not happen again. Constitutional reform is important to people as they believe that it will impact on how they are governed, their place within society and their equality as citizens. The ethnic and religious minorities will tend to prefer decentralised government as it will give them more power in those parts of the country in which they are predominant. On the other hand, that very fact can cause apprehension in the minds of the ethnic and religious majority that their place in the country will be undermined.
Unless the general public is brought aboard on the issue of constitutional change, it is unlikely they will support it. We all need to know what the main purpose of the proposed constitutional reform is. If the confidence of the different ethnic and religious communities is not obtained, the political support for constitutional change will also not be forthcoming as politicians tend to stand for causes that win them votes. Minister Premajayantha has usefully lit an early warning light when he said that politicians are not like lamp posts to agree to anything that the government puts before them. Even though the government has a 2/3 majority, this cannot be taken for granted. There needs to be buy in for constitutional reform from elected politicians and the general public, both from the majority community and minorities, if President Rajapaksa is to succeed where previous leaders failed.
JVP, too, moves court against deal with US company
Govt. in dilemma over anti-terrorism law:
West Indies campaign in disarray after back to back defeats
7-billion-rupee diamond heist; Madush splls the beans before being shot
The Burghers of Ceylon/Sri Lanka- Reminiscences and Anecdotes
Unfit, unprofessional, fat Sri Lankans
Sports5 days ago
Mahela leaves Sri Lanka team with a heavy heart
Features6 days ago
‘Killi’ Rajamahendran: One of a kind
Life style3 days ago
The poem Neruda never wrote
Features4 days ago
Travellers and traders: Muslims of Sri Lanka
Sports6 days ago
Daniel anchors Sri Lanka Under 19s as hosts seal series
news5 days ago
Imported liquid Nano-Nitrogen fertiliser not organic, says a group of academics
Features2 days ago
How many roads must a man walk down?
Features6 days ago
Didi’s campaign theme song based on Yohani’s ‘Menike Mage Hithe’ Are we patriotic as a nation?