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1. Introduction
Intellectual property is commonly regarded as an esoteric branch of the law. It is
characterized by being complex and until recently it was a little understood and somewhat
discrete area of the law. Its complexity stems from the fact that it has as its subject intangible
items such as ideas, concepts, goodwill, cultural expressions and the like. This must be
contrasted with tangible goods such as vehicles, ships, equipment, household goods, and
immovable items such as portions of land, all of which have a physical existence. The
application of the law to tangible, physical items is in principle less complicated than when
the law is applied to intangible, immaterial items which are cast in the form of property.
Intellectual Property (IP) is an example of intangible personal property. It cannot be
touched. It is a collection of ideas and information in a broadly commercial context that the
law recognizes as having a value by providing protection. In other words, it is property
defined by various legally enforceable rights.
A patentee (a patent holder / an owner of a patent) owns the right to prevent others
from making, using, or selling the patented invention. An invention contains not only the
product alone. For example, the invention itself may be composed of a new pharmaceutical
drug, the process for making the drug, or the machines that make the drug. Each is patentable
(the chemical composition of the drug, the process for making it, and the machine that makes
it) and, yet, the patentee may have no physical facilities to produce the patented product.
Instead the patentee may decide to licence the right to make its patented product to a more
established pharmaceutical firm and collect its reward in the form of royalties from drug
sales made by the licensee. When pills containing the patented drugs are made, the patentee
does not own those pills but, rather, just owns the right to exclude others from making those
pills except by agreement.
From the above example it is clear that it is not necessary that the patentee himself
produce or manufacture the patented product, instead he can license his patent right in
consideration for a royalty or sell his patent right to a firm which has the capability to
produce or manufacture the patented product. The most prominent forms of IP are patent,
trade secret, copyright, and trademarks.
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Man creates and hence he is said to be creative. Intellectual capacity of man (i.e.
human being) is superior among all other known creatures on the earth. Intellectual Property
is the result of human creativity. As Sony co-founder Masaru Ibuka remarked upon being
rewarded the Japanese Order of Culture, Inventions are the fount of culture. They are
essential to any cultures development. There have been many significant inventions
throughout the course of history, among them the ancient inventions of the water clock and
paper-making, the invention of the printing press in the Middle Ages and, more recently,
Edisons phonograph and the steam engine, which powered the Industrial Revolution. All of
these inventions have had a profound impact on the course of human civilization and sparked
great cultural development. Sakichi Toyoda, widely acknowledged as one of Japans top
ten inventors of all time for his invention of the worlds best automatic looms, believed that
inventing useful technologies and obtaining good patents contributed to the advance of
civilization- and that patents are thus the foundation of civilization.
Minimum rules have been agreed upon through the TRIPS (Trade-Related Aspects of
Intellectual Property Rights) Agreement for the protection of patents and other intellectual
property rights. People have to be made more patent-minded in the 21st Century. Access to
foreign technology can be had only if patent rights are respected. For example, China has
now understood the vitality of developing a better understanding of Intellectual Property
Rights, including the need not to infringe on foreign firms patents. The case in point is
Chinese Environmental Business sector including measures which need to be taken to
prevent air pollution and to provide for the safe disposal of urban waste. Now China
welcomes foreign firms as active participants in those business sectors, among others.
Today, managers in companies of all sizes must be cognizant of the basics of IP Law
in their daily decision making. Mistakes in the management of IP are legendary and the
frequent focus of articles in newspapers and other periodicals, of the courts, and increasingly
in the training of future managers. The modern tale of Nigerian Wax-Resist Textiles
published in the WIPO MAGAZINE No.4 of August 2009 is a classic case for the need to be
vigilant in protecting trademarks. This case highlights the vitality of protecting IP and the
consequences of not being able to be patent-minded as a country at large and protect ones IP
Rights from being infringed. A recent book by Stephanie Ngo Mbem (WIPO Magazine
1/2009), discusses the protection of industrial designs as key to development in Africa.
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Recognition of IP issues is essential for managers who want to manage effectively.
Decisions to apply for patents, to rely on trade secrets, or to apply combination strategies to
IP protection are management decisions. Lawyers can be useful for pointing out the costs and
benefits of alternative choices, but ultimately, IP decisions are management decisions. The
success of managers is increasingly tied to their success at managing IP. Therefore,
knowledge of the basics of IP law should be part of the skill set that modern managers
possess. Having a well crafted IP strategy is a competitive advantage in the stiff competition
prevailing in the global market.
2. Intellectual Property
Writers, inventors and artists transform ideas into tangible property. When this property
qualifies under law for protection its known as Intellectual Property or (IP). A photographer
is wondering why an advertising agency can copy her photographs without permission. An
inventor is wondering why he cannot stop a foreign manufacturer from making his patented
invention. A man named McDonald is wondering why he cannot open a restaurant called
McDonalds. And a woman who spends US$ Rs.600 on a software program is wondering
why its illegal to share copies with her friends. So the world of Intellectual Property is
wonderful and interesting to explore.
But not all products of the mind can achieve protection under Intellectual Property
Law. Determining what can be protected and why used to be the exclusive domain of patent,
copyright, and trademark lawyers.
However, Intellectual Property is not an inscrutable discipline. Anybody can
understand the basics.
Copyright legislation is part of the wider body of law known as intellectual property.
The term intellectual property refers broadly to the creations of the human mind. Intellectual
property rights protect the interests of creators by giving them property rights over their
creations.
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The Convention Establishing the World Intellectual Property Organization (1967)
gives the following list of subject matter protected by intellectual property rights:
literary, artistic and scientific works;
performances of performing artists, phonograms, and broadcasts;
inventions in all fields of human endeavor;
scientific discoveries;
industrial designs;
trademarks, service marks, and commercial names and designations;
protection against unfair competition; and
all other rights resulting from intellectual activity in the industrial, scientific, literary
or artistic fields.
Intellectual property relates to items of information or knowledge, which can be
incorporated in tangible objects at the same time in an unlimited number of copies at
different locations anywhere in the world. The property is not in those copies but in the
information or knowledge reflected in them. Intellectual property rights are also
characterized by certain limitations, such as limited duration in the case of copyright and
patents.
The importance of protecting intellectual property was first recognized in the Paris
Convention for the Protection of Industrial Property in 1883 and the Berne Convention for
the Protection of Literary and Artistic Works in 1886. Both treaties are administered by the
World Intellectual Property Organization (WIPO).
Countries generally have laws to protect intellectual property for two main reasons.
One is to give statutory expression to the moral and economic rights of creators in their
creations and to the rights of the public in accessing those creations. The second is to
promote creativity, and the dissemination and application of its results, and to encourage fair
trade, which would contribute to economic and social development.
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The Two Branches of Intellectual Property: Industrial Property and Copyright
Intellectual property is usually divided into two branches, namely industrial property, which
broadly speaking protects inventions, and copyright, which protects literary and artistic
works.
Industrial property takes a range of forms. These include patents to protect inventions,
and industrial designs, which are aesthetic creations determining the appearance of industrial
products. Industrial property also covers trademarks, service marks, layout-designs of
integrated circuits, commercial names and designations, as well as geographical indications,
and protection against unfair competition.
Copyright relates to artistic creations, such as books, music, paintings and sculptures,
films and technology-based works such as computer programs and electronic databases. In
most European languages other than English, copyright is known as authors rights. The
expression copyright refers to the main act which, in respect of literary and artistic creations,
may be made only by the author or with his authorization. That act is the making of copies of
the work. The expression authors rights refer to the creator of the artistic work, its author. It
thus underlines the fact, recognized in most laws, that the author has certain specific rights in
his creation which only he can exercise (such as the right to prevent a distorted reproduction).
Other rights (such as the right to make copies) can be exercised by other persons, for
example, a publisher who has obtained a license from the author.
While other types of intellectual property also exist, it is helpful for present purposes
to explore the distinction between industrial property and copyright in terms of the basic
difference between inventions and literary and artistic works.
Inventions may be defined in a non-legal sense as new solutions to technical
problems. These new solutions are ideas, and are protected as such; protection of inventions
under patent law does not require that the invention be represented in a physical embodiment.
The protection accorded to inventors is, therefore, protection against any use of the invention
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without the authorization of the owner. Even a person, who later makes the same invention
independently, without copying or even being aware of the first inventors work, must obtain
authorization before he can exploit it.
Unlike protection of inventions, copyright law protects only the form of expression of
ideas, not the ideas themselves. The creativity protected by copyright law is creativity in the
choice and arrangement of words, musical notes, colours and shapes. So copyright law
protects the owner of property rights against those who copy or otherwise take and use the
form in which the original work was expressed by the author.
From this basic difference between inventions and literary and artistic works, it
follows that the legal protection provided to each also differs. Since protection for inventions
gives a monopoly right to exploit an idea, such protection is short in duration- usually about
20 years. The fact that the invention is protected must also be made known to the public.
There must be an official notification that a specific, fully described invention is the property
of a specific owner for a fixed number of years; in other words, the protected invention must
be disclosed publicly in an official register.
Since the legal protection of literary and artistic works under copyright, by contrast,
prevents only unauthorized use of the expressions of ideas, the duration of protection can be
much longer than in the case of the protection of ideas themselves, without damage to the
public interest. Also, the law can be - and in most countries is - simply declaratory, i.e., the
law may state that the author of an original work has the right to prevent other persons from
copying or otherwise using his work. So a created work is considered protected as soon as it
exists, and a public register of copyright protected works is not necessary.
1. The Importance of Intellectual Property
Intellectual Property is a matter of great importance to many businesses, and individuals too.
It is significant to the national economy too.
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The Chief Scientific Advisor to the cabinet in England, Dr. Robin Nicholson, was
commissioned to produce a report in 1983 to report on the treatment of Intellectual property
and the encouragement of its exploitation. The result was a Green Paper, Intellectual
Property Rights and Innovation (cmnd 9117). Publication of the Nicholson Report, as it was
known, marked perhaps the high point of government and industrial interest in IP.
The opening remarks of that Green Paper named Nicholson Report are worth studying as a
statement of what the intellectual property system is all about. Therefore, those opening
remarks are included in this Term Paper in view of my personal opinion and the
consideration that the importance of this term paper will enhance as a future reference
material on IP Law.
The context of intellectual property rights:
1.6 The interests of all parties, and therefore of the nation as a whole, would appear to be
served by encouraging the bringing of new products and manufacturing processes to
the market. However, interests can diverge over how this should happen and in the
legal rights and monopolies involved. For example, the inventor, in so far as he is not
the producer:
Wants the highest price possible for his invention and the credit for it, even if he
may not be aware of its ultimate commercial potential.
The producer
Wants ready access to new inventions which he can incorporate in his products in
order to gain market advantage.
Wants to hold on to this advantage as long as possible against competitors
capable of using the same invention
May want to delay exploitation of an invention until a moment of his own
choosing (or even indefinitely)
The consumer on the other hand:
Wants a continuing flow of improved products at the lowest possible prices;
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To that end wants a wide dissemination of the state of the art on existing products
and the potential for future ones so that continues product development is
stimulated and consumer choice guaranteed;
May not mind if the products derive from copying others work.
1.6 The following are the main ways in which all developed countries create a legal
regime or take other action in an attempt to strike a balance between the interests
described above:
(1) A product is brought to the market only because the producer has been able to
keep the know-how behind it secret and thus hidden from potential competitors
and copiers. Employees can be bound by the law of confidence.
(2) The parties involved establish their respective rights and obligations by a formal
contract. Examples are know-how and confidence arrangements which place
obligations on customers, and licensing arrangements all enforceable by law, by
which an innovator allows others to manufacture a product for a fee.
(3) The public authorities may intervene:
(a) By the granting of monopolistic legal protection to the innovative idea.
The protection is usually limited for a period of time, protected from abuse
and subject to disclosure so that incentives are given to innovators but
consumer protection from long-term monopoly profits is also established.
This is the essence of intellectual property rights.
(b) By a subsidy to the producers of innovation so that the chances of the new
products-wide public availability are enhanced.
The case for intellectual property rights
1.6 A system of intellectual property rights should encourage new products and processes
to reach the market and bolster the trade in ideas. That a system based on principles
in 1.7.3.a. should meet these objectives sounds plausible in theory. It should provide
adequate benefits and production for all the parties as follows:
1. Where R&D costs are high the inventor and producer (whose combined role
we call that of the innovator) would not make the original investment if an
imitator could immediately scoop the market with cheap copies.
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2. Even if R&D costs are not particularly high, innovative small businesses,
which do not have the legal resources, manufacturing power and dominant
marketing capability of the large firm, need protection. They would be hit
particularly hard if their only asset, production innovation, could immediately
be copied and sold at a punitive low price, cross-subsidised from other
products.
3. The consumers interest is served by disclosure. Without IPRs there would be
both a clear disincentive to invest in the more expensive forms of innovative
research and more reliance on commercial secrecy. The latter would
contribute towards the duplication of research effort. By requiring disclosure,
the IP system facilitates the exchange of information and encourages further
invention.
4. Wider use of new ideas is encouraged by legally protected IP which allows
trade to develop on the basis of licences. Even large firms may balk at the
difficulty of exploiting fully a new market: Bell Labs did not attempt to
monopolise the applications of the transistor. For small firms or private
individuals, without the will or resources to produce and market their
innovation themselves, the Return on Investment (ROI) will often be
dependent on licensing the IP for use. Trade is likely to be encouraged most if
the license provide for royalty income (based on the incidence of use, on the
profits, on sales, or some combination) rather than a once-for-all fee that has
to be settled before the market is established.
5. The consumer and competitor are shielded from the abuse of monopoly power
both because monopoly rights are circumscribed and because IP is not exempt
from the application of the Restrictive Trade Practices Act or the Competition
Act and the investigation by the MMC.
6. For a nation which produces proportionately more good ideas than most
countries, but has a relatively small home market and has been less successful
in the application of technology, the public good lies in trading products and
ideas. It is therefore, in the overall national interest that a strong worldwide
system of protecting IP should exist.
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exclusive right to authorize reproduction, issue of copies to the public, making adaptations,
public performance, recording, broadcasting, and including in a cable programme service.
Different people can be granted licenses to do each of these acts, and they can even be
subdivided; an author may give the rights to publish a hardback edition to one publisher and
the paperback right to another.
Volatility: Intellectual Property Law is an organic growth. Before printing was invented,
literary works required no protection: they resided in the memories of their owners, and were
recited to order. Trademarks only became important when society moved from one in which
individuals traded their own products.
Technological and other developments create a demand for intellectual property protection;
though as we have seen not all such demands will be met. Most recently, our notions aboutIP are being challenged by the growth of internet. Copyright in particular is put in need of
reform. John Perry Barlow in A Framework for Rethinking patents and Copyright in the
Digital Age says that everything you know about IP is wrong, and this is being proved
day by day in all new developments in the internet such as blog writing, tweeters, etc.
The problem of digitised property: If our property can be infinitely reproduced and
instantaneously distributed all over the planet without cost, without our knowledge, without
its even leaving our possession, how can we protect it? How are we going to get paid for thework we do with our minds? And, if we cant get paid, what will assure the continued
creation and distribution of such work? These are the questions which we need to find
answers sooner or later.
5. How intellectual Property Law works
IP laws, along with court decisions and regulations, establish rules for the following
activities:
Selling or licensing of intellectual property
Resolving disputes between companies making or selling similar intellectual property
products and services, and
The registration and administration of intellectual property.
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IP laws dont prevent someone from stepping on the owners right. But the laws do give an
owner the ammunition to take a trespasser to court. This is the most well known benefit of
owning Intellectual Property. The owner acquires exclusive rights and can file a lawsuit to
stop others who use the property without authorization.
5. Determining what rights apply to our work
If we are concerned with a creation of our own, we will first need to know what form (or
forms) of Intellectual Property applies to it.
The following basic rules will help get started:
Utility patents are awarded for new processes, machines, manufactures, or
compositions of matter, or new uses of any of the above.
Design patents are awarded to non-functional, ornamental, or aesthetic design
elements of an invention or product.
Plant patents are granted for a sexually or sexually reproducible plants (such as
flowers).
Copyright law protects expressions of creative ideas such as songs, artwork, writing,
films, software, architecture, and video games.
Trademark law protects marketing signifiers such as the name of a product or
service, or the symbols, logos, shapes, designs, sounds, or smells used to identify it.
Trade secret law commonly protects confidential designs, devices, processes,
compositions, techniques, formulas, information or recipes.
6. 21st Century An age of Intellectual Creation and the Importance ofIntellectual Property for the Economic Development
21st Century will be an era of great intellectual creations. People all over the world use their
creative energies to come up with new goods and services. There is no limit for human
creativity. We are what we are today because of creativity and intellectual capacity of our
forefathers. Man never ceased to be creative, nor will he tomorrow. Most importantly, 21 st
Century will be an unprecedented age of human civilization in which the patent system is
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used to ensure that the inventors share in these advances and that the concepts involved are
made available to society at large.
People world-wide are experiencing a major global credit crunch and immense economic
hardships due to recession caused by subprime meltdown in the U.S.A. and it is clearly anoutcome of resorting to short-termist get-rich approaches without finding ways to turn out
better products at lower cost.
Some countries are learning better and faster than others and Japan is one of such leading
countries obsessed with creativity and innovation in science and technology. For example,
Japan saw that it faced an urgent need to restructure its economy and as part of that process, a
Science and Technology Basic Law was enacted in 1995 as one step on the way to making
Japan a powerhouse of science and technology. It was hoped that that law would foster an
intellectual creation cycle in which, when someone develops a new technology, patent
protection is established for the inventors right, these rights are used to make and sell a
better product, and the resultant profits help fund research on the next new technology. If that
cycle could be established, it would have a snowball effect. Patents are the key to this
process.
Sri Lanka too is taking some constructive steps in the realm of Intellectual Property and it is
seen in a law named A Legal Framework for the Protection of Traditional Knowledge in
Sri Lanka, proposed to provide for the protection and management of traditional knowledge
in Sri Lanka. The Statement of Policy on the new law states that Whereas the Govt. of
Sri Lanka recognizes: The importance and value of traditional knowledge in all the fields of
human endeavour including scientific, technological, industrial, economic, cultural,
educational, social and spiritual; and the necessity to promote the protection, development,
conservation and preservation of traditional knowledge; meet the legitimate needs and
expectations of the holders of traditional knowledge; secure the respect and recognition for
the traditional knowledge and the holders thereof for their contribution to the knowledge anddevelopment; ensure fair and reasonable benefits to the holders of traditional knowledge for
the use of traditional knowledge outside the traditional context; regulate use, disclosure,
acquisition, preservation and conservation, management, development and application of
traditional knowledge; discourage, control, counter and stop misuse of, misappropriation of
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Figure-1 Intellectual Creation = New Industries
Intellectual Creation Cycle
7. Popularizing Intellectual Property and the Importance of Education
and Training in Intellectual Property Law
The starting point of popularizing intellectual property law commences with education and
training. It is essential that instruction in intellectual property law should have a far broader
base and the subject should become a standard component of general legal education. An
intellectual property course at a reasonably advanced level should become a compulsory
component of any law degree or diploma in the same way as areas such as the Law of
Things, the Law of Property and Contract Law are such components. If all law students are
introduced to intellectual property law as part of their basic training, this will go a long way
towards making knowledge of intellectual property law more widespread. By introducing
students to it at an early stage, a major stride will be taken in demystifying and popularizing
intellectual property law. In order to achieve the objective of incorporating intellectual
property law into basic legal training, it may be necessary for legislation to be passed to this
end, or universities and other training colleges must be incentivized or persuaded to make
intellectual property law an essential component of legal courses.
One of the ways of incentivizing universities and other training institutions to give due
recognition to intellectual property law would be to induce bar councils which regulate the
practice of law to require a reasonable degree of proficiency in intellectual property law as a
basic qualification for a licence to practice. If this could be achieved, it would follow that the
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Becoming ascience andtechnology power
Creation of new industries
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universities and other educational institutions would be under a measure of compulsion to
include intellectual property law as a basic component of legal curricular.
As far as the existing legal fraternity is concerned, it would be desirable for all legal
practitioners as well as members of the judiciary, criminal law enforcement agencies and thelike to undergo training or instruction in intellectual property law. In the modern world there
is a strong emphasis on continuing legal education in order to ensure that the legal fraternity
stays up to date with developments in the law. Intellectual property should become a
standing item in continuing legal education.
It would assist with the education and training of lawyers in regard to intellectual
property law if the laws themselves could be simplified and be made less technical. One of
the impediments to a more broadly based understanding and knowledge of intellectual
property law in the past has been the perhaps excessively technical nature of the law which
has made it conducive to a high degree of specialization. Popularization of intellectual
property law necessarily entails the law becoming more user-friendly and thus more easily
understood and more widely practiced.
8. The strategic use of intellectual property (IP) for national prosperity
and development
Bridging the technology gap between the developed countries and developing countries like
ours is a need of the hour, and integrating intellectual property into national development
policy is vital. Access to technological information should be facilitated at all levels
beginning at school level. Training and developing the human capital necessary to use the
emerging new technologies and inventions is the key to realizing the creative potential of our
literate population, and speeding Sri Lankas integration into the global knowledge economy
must be given priority in the National Economic Development Agenda.
Sri Lankans should be educated and encouraged to use the databases such as
WIPOsPATENTSCOPE which offers free access to the accumulated knowledge
containing some 1.6 million patent documents, and a nation-wide awareness program
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including open competitions on new inventions and discoveries should be organized and
conducted to popularize IP in the country. Sri Lanka has a literacy rate of 90.7% and this
high rate of literacy is a leverage we have and we should make use of it to our own advantage
and benefit in the emerging world interest in IP creation and legally enforceable rights
attached thereto. Already having a highly literate population which is a competitive edge,
what we need is only the political leadership capable of guiding the countrys highly literate
population in the same manner and in the same direction the developed countries are charting
and taking their nations, and a vibrating public administrative system which appreciate the
pressing needs of the nation which is struggling to come out of the vicious cycle of poverty.
Scientific and technical journals published in developed countries can be had and
made use to educate Sri Lankan children on new technologies and inventions and the system
of education should be upgraded and updated with the latest knowledge in all subject areas
revising curricula and syllabuses. Capacity building, enhancing our ability to leverage such
technical information in line with our national requirements, and making effective use of
international funds which are made available and granted through international institutional
mechanisms created under the UN agencies to developing countries, are absolute
requirements which we could ill-afford to ignore or underestimate.
Therefore, instead of keeping our mouths open till imported goods are unloaded at
our ports and airports to feed the nation at ever increasing expenditure which has adverse
impact on our Balance of Payments, we should make our peoples eyes and ears open to what
is happening outside our shores so that they will always be on the forefront of science and
technology and the only way forward to eradicate poverty lies in that direction.
What people tend to do most of the time is to do the easiest and thus capture only
what is obvious to the naked eye on the surface of things and do not bother that much to
research, discover, innovate and invent. This inertia should be replaced with creativity,
innovation and invention by reward and protection through the intervention of law so that
Intellectual Property of our people can be effectively utilized to create comparative
advantage for the country.
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As a country, all possible attempts must be made to become a net intellectual asset
exporter rather than staying as a net intellectual asset importer. Historically net intellectual
asset importers saw little reason to protect intellectual goods coming from abroad. For Sri
Lanka to give patent protection to a foreign producer of shrimps processes would require her
nationals to pay higher prices for this equipment than they otherwise would, with the great
proportion of the increment leaving the country in the form of royalty payments to the
foreign owner. Economic view point of intellectual asset exporting countries such as U.S.A
should be well understood by intellectual asset importing developing countries such as Sri
Lanka. Majority of intellectual asset exporting countries are developed countries and those
countries use a variety of tricks including legal measures to stay ahead of developing
countries and profit from their intellectual assets. For example, instead of challenging the
territoriality principle, a country that is a net intellectual asset exporter could enter into a
treaty with a net importer obligating it to extend strong protection to foreign intellectual
assets. Why would a net intellectual importing developing country agree to a treaty that
would result in higher prices for its citizens? The answer depends on the context of each
country. What is observed, in general is that intellectual asset importing countries on the
other hand are lagging behind due to a variety of reasons. The position of Sri Lanka is no
better.
In face of strong fight and opposition of newly independent developing countries in
Asia, Africa and Latin America in 1960s to free themselves from Berne and Paris
conventions to which their colonial masters had committed them, the industrialized countries
responded with a carrot and stick. The carrot came wrapped in the argument that only if the
developing countries adopted strong intellectual property protection could they hope to
attract the Foreign Direct Investment (FDI) essential to their economic development.
Protection foreign intellectual assets might increase domestic prices, but or so the argument
went-the social benefit of rapid industrialization would more than offset the social cost of
these increases. And although trade economists disagree on whether the overall benefits of
strong intellectual property enforcement outweigh their costs for developing economies-there
is evidence that the trade-off is less costly for copyright industries than for patent industries-
effective intellectual property enforcement does appear to attract FDI in plants and in
research and development if for no other reason than that it signals a business friendly
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environment. This equally true for Sri Lanka too. A second widely held view, disputes this
conclusion, maintaining that, at the extreme, IPR amounts to economic colonialism.
However, this is not to say that we should not respect intellectual property rights of foreign
counties. Now, we cannot do that because we are a member and signatory to many
international conventions on intellectual property rights including the latest, TRIPS
Agreement which came into existence in 1994, which expressly incorporates the minimum
standards of the Berne and Paris conventions and adds substantial minimum standards of its
own, including standards for enforcement. Intellectual Property Act No.36 of 2003 of Sri
Lanka is TRIPS compliant.
Implementation of IPR legislation requires a complex and sophisticated infrastructure
and it will take time for Sri Lanka to establish effective functional protection (that is reaching
a point where the private sector develops sufficient confidence to increase investments in
science and technology in Sri Lanka, which is true for other developing countries too, as well
as to transfer key technologies here).
We being primarily an agricultural country, attention should be drawn to IPRs in
agricultural technology too, which is, of course, a very complicated and complex process.
The issues of IPRs in agriculture are complex, more than in any other sector, particularly
pertaining to developing countries such as Sri Lanka. But, somehow, we must try our best to
tap the innovativeness and creativity of our people and protect their inventions in agricultural
sector too as we should do in all other sectors. A large number of poor households in Sri
Lanka derive their lively hood from resource poor areas such as Moneragala, Polonnaruwa,
Anuradhapura, etc. with difficult agroclimatic conditions. Ensuring their access to
technologies is therefore crucial for poverty alleviation.
9. Conclusion
According to results of research by Mazzoleni and Nelson (1997) regarding the roles and
functions of Intellectual Property Rights, IPRs may achieve a number of objectives. They can
serve as:
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A fundamental right of individuals to protect their intellectual property in much the
same way as laws would protect other forms of property
A way of ensuring incentives for innovation
A way to induce the needed investments to develop and commercialized the invention
An incentive to disclose information
A mechanism for protecting the disclosure of partially-developed inventions,
particularly during licensing talks
An aid to technology transfer
A way to enable the orderly development of broad prospects
Sri Lanka as a developing nation will benefit mostly in IPRs by adopting a positive attitude
towards protection of IPRs of its own people as well as those of foreign nationals. Having
enacted a TRIPS compliant Intellectual Act is a good start. Facing the emerging realities with
foresight and restraint would solve many problems. Intellectual Property Rights should be
used as a strategy in gaining a competitive edge.
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References:
http://books.google.co.uk/books?
id=EuRTF6G4PG4C&pg=PA1&dq=Intellectual+Property+Law&lr=#v=onepage&q=&f=false
http://books.google.co.uk/books?id=22SOw7NcKeUC&pg=PT15&dq=Intellectual+Property+Law&lr=#v=onepage&q=Intellectual%20Property%20Law&f=false
http://books.google.com/books?id=siJ_GOVH3RoC&pg=PA216&dq=ip+law+and+business#v=onepage&q=ip%20law%20and%20business&f=false
http://books.google.com/books?id=OwRtAtxIuUkC&pg=PA26&dq=ip+law+and+business&lr=&as_brr=1#v=onepage&q=&f=false
http://books.google.co.uk/books?id=967501rHmt0C&pg=PP1&dq=Intellectual+Property+Law&lr=#v=onepage&q=&f=false
Annexes
21
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Annexure-I
SOME IMPORTANT INTERNATIONAL TREATIES ON IPORGANIZING TREATY : WORLD INTELLECTUAL PROPERTY ORGANIZATION
YEAR NAME DESCRIPTION WEBSITE
1967 WIPO Convention establishing
the World Intellectual
Property Organization
http://www.wipo.int.clea/docs/en/wo/wo029en.htm
Treaties providing for the protection of Industrial Property : Paris Convention
YEAR NAME DESCRIPTION WEBSITE
1883
amende
d 1967
and1979
Paris
Convention
Paris Convention for the
Protection of Industrial
Property
http://www.wipo.int.clea/docs/en/wo/wo020en.htm
MADRID AGREEMENT FOR THE REPRESSION OF FALSE OR DECEPTIVE INDICATION OF
SOURCE ON GOODS
YEAR NAME DESCRIPTION WEBSITE
1891 as revised at
Brussels 1900 at
Washington 1911 at
the Hague 1925 at
London 1934 at
Nice 1957, and at
Stockholm on July
14, 1967 and as
amended on
September 28, 1979
Madrid
Agreement
Madrid Agreement
for the Repression
of False or
Deceptive
Indication of
Source on Goods
http://www.wipo.int.clea/docs/en/wo/wo032en.htm
NAIROBI TREATY ON THE PROTECTION OF THE OLYMPIC SYMBOL
YEAR NAME DESCRIPTION WEBSITE
1981 Nairobi
Treaty
Nairobi Treaty on
the Protection of the
Olympic Symbol
http://www.wipo.int.clea/docs/en/wo/wo018en.htm
TRADEMARK LAW TREATY (TLT)
YEAR NAME DESCRIPTION WEBSITE
1994 Trademark Trademark Law http://www.wipo.int.clea/docs/en/wo/wo027en.htm
22
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Law
Treaty
Treaty
TREATIES FACILITATING THE INTERNATIONAL REGISTRATION OF INDUSTRIAL
PROPERTY : MADRID AGREEMENT CONCERNING THE INTERNATIONAL REGISTRATION
OF MARKS
YEAR NAME DESCRIPTION WEBSITE
1891
Brussels 1900
Washington
1911
the Hague
1925 London
1934 Nice
1957
Stockholm
1967 as
amended 1979
Madrid
Agreement
Madrid Agreement
Concerning the
International
Registration of
Marks
http://www.wipo.int.clea/docs/en/wo/wo015en.htm
HAGUE AGREEMENT
YEAR NAME DESCRIPTION WEBSITE
1925
Amended
1934, 1960,
1961, 1967,
1979
Hague
Agreement
Hague Agreement
Concerning the
International
Deposit of Industrial
Designs
http://www.wipo.int/treaties/registration/hague/index.htm
LISBON AGREEMENT FOR THE PROTECTION OF APPELLATIONS OF ORIGIN AND THEIR
INTERNATIONAL REGISTRATION
YEAR NAME DESCRIPTION WEBSITE
October 31,
1958
Revised at
Stockholm
July 14, 1967,
amended Sept.
28, 1979
Lisbon
Agreement
Lisbon Agreement
for the Protection of
Appellations of
Origin and their
International
Registration
http://www.wipo.int.clea/docs/en/wo/wo012en.htm
PROTOCOL RELATING TO THE MADRID AGREEMENT CONCERNING THE
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INTERNATIONAL REGISTRATION OF MARKS
YEAR NAME DESCRIPTION WEBSITE
1989 Madrid
Protocol
Protocol Relating to
the Madrid
Agreement
Concerning the
International
Registration of
Marks
http://www.wipo.int.clea/docs/en/wo/wo016en.htm
TREATIES ESTABLISHING INTERNATIONAL CLASSIFICATIONS
NICE AGREEMENT CONCERNING THE INTERNATIONAL CLASSIFICATION OF GOODS AND
SERVICES FOR THE PURPOSES OF THE REGISTRATION OF MARKS
YEAR NAME DESCRIPTION WEBSITE
1957 Nice
Agreement
Nice Agreement
Concerning the
International
Classification of
Goods and Services
for the Purposes of
the Registration of
Marks
http://www.wipo.int.clea/docs/en/wo/wo019en.htm
LOCARNO AGREEMENT ESTABLISHING AN INTERNATIONAL CLASSIFICATION FORINDUSTRIAL DESIGNS
YEAR NAME DESCRIPTION WEBSITE
1968 Locarno
Agreement
Locarno Agreement
Establishing an
International
Classification for
Industrial Designs
http://www.wipo.int.clea/docs/en/wo/wo014en.htm
VIENNA AGREEMENT ESTABLISHING THE INTERNATIONAL CLASSIFICATION OF
FIGURATIVE ELEMENTS OF MARKS
YEAR NAME DESCRIPTION WEBSITE
1973 Vienna
Agreement
Vienna Agreement
Establishing the
International
Classification of
http://www.wipo.int.clea/docs/en/wo/wo031en.htm
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http://www.wipo.int.clea/docs/en/wo/wo016en.htmhttp://www.wipo.int.clea/docs/en/wo/wo019en.htmhttp://www.wipo.int.clea/docs/en/wo/wo014en.htmhttp://www.wipo.int.clea/docs/en/wo/wo031en.htmhttp://www.wipo.int.clea/docs/en/wo/wo016en.htmhttp://www.wipo.int.clea/docs/en/wo/wo019en.htmhttp://www.wipo.int.clea/docs/en/wo/wo014en.htmhttp://www.wipo.int.clea/docs/en/wo/wo031en.htm -
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Figurative Elements
of Marks
TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS) AGREEMENT
YEAR NAME DESCRIPTION WEBSITE
1994 Agreement on
Trade-Related
Aspects of
Intellectual Property
Rights (TRIPS)
(WTO)
The GATT Final Act
Embodying the
Results of the
Uruguay Round
contains several
other relevant items:
the Trade Related
Aspects of
Intellectual Property
Rights
http://www.wto.org/english/tratop_e/trips_e/t_agm0_e
.htm
http://usinfo.state.gov/usa/infousa/law/gatt/iia1e.htm
Summary of TRIPS :
http://www.wto.org/english/docs_e/legal_e/ursum_e.h
tm/mAgreement
CAFTA: INTELLECTUAL PROPERTY UNDERSTANDING REGARDING CERTAIN PUBLIC
HEALTH MEASURES
YEAR NAME DESCRIPTION WEBSITE
August
5, 2004
Intellectual
Property
Understanding
Regarding Certain
Public HealthMeasures
(CAFTA)
INTELLECTUAL
PROPERTY
UNDERSTANDING
REGARDING
CERTAIN PUBLICHEALTH
MEASURES
http://www.ustr.gov/Trade_Agreements/Bilateral/CAF
TA/CAFTADR_Final_Texts/Section_Index.html
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Annexure-IIGuide to use of intellectual property protections
Creative work
Applicable legalrights
T
r
a
d
e
s
e
c
r
e
t
C
o
p
y
ri
g
h
t
P
a
t
e
n
t
T
r
a
d
e
m
a
r
k
U
n
f
ai
r
c
o
m
p
e
ti
ti
o
n
N
o
r
i
g
h
t
s
Advertisement (Billboard, card, flyer, sign)
Advertising copy
Architectural drawings, renderings
Arrangements of facts
Artwork (see specific entries)
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Biography
Biological inventions
Blue prints
Book design
Book titles
Carpet design
Cartoons
Characters - animated
Characters - Books
Characters comic strips
Characters TV or movies
Charts
Chemical inventions
Choreograph works
Clothing accessories and designs (belts, hats, scarves,
suspenders)
Comic strips
Commercial names
Computers
Containers
Cosmetics
Databases
Decorative hardware
Design (see specific entries)
Drawings
Electrical Inventions
Electronic Inventions
Engineering Plans
Etchings
Fabric
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Fabric design
Facts
Floor charts
Food inventions
Forms
Formulas chemicals
Formulas - cosmetic
Formulas - food
Creative work
Applicable legal
rights
T
r
a
d
e
s
e
c
r
e
t
C
o
p
y
ri
g
h
t
P
a
t
e
n
t
T
r
a
d
e
m
a
r
k
U
n
f
ai
r
c
o
m
p
e
ti
ti
o
n
N
o
r
i
g
h
t
s
Furniture design
Games (board, box and instruction)
hardware
housewares
Ideas by themselves
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Interior design
Internet domain names
Jewellery
Labels
Landscape designs
Laser light show
Law of nature
Lectures
Lithographs
Logos
Machines
Machines internal parts
Magazines
Magic tricks or techniques
Manufacturing process
maps
Mathematical algorithms
Mechanical inventions
Medical accessories, devices (splints, braces,
supports)
Method of doing business
Movie film or video
Movie - plot (not written)
Movie - script
murals
Musical composition
Musical instrument
Names business
Names entertainer/celebrity
Names famous animals
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Names product or service
Odors new use/process
Odors used in marketing
Packaging
Paintings
Pamphlets
Periodicals
Photographic processes
Photographs
Plants and plant inventions
Plays - written or performances
Creative work
Applicable legal
rights
T
r
ad
e
s
e
c
r
e
t
C
o
py
ri
g
h
t
P
a
te
n
t
T
r
ad
e
m
a
r
k
U
n
fai
r
c
o
m
p
e
ti
ti
o
n
N
o
r
i
g
h
t
s
Pottery
Prints
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Project designs
Radio programmes
Record books
Recreational gear
Reproductions
Schedules
Scientific treatises
Sculpture
Shapes
Shoes
Signs
Slogans
Software
Software titles
Songs jingles for marketing
Songs not written or recorded
Songs recorded or written
Sounds new ways to make
Sounds original sequence
Sounds used in marketing
Sporting goods designs
Sporting goods - equipment
Stained glass
Structural plans
Symbols
Titles books, plays
Titles magazines
Toys
Translations
Videotape
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