ip law_term paper by rmpiyadasa

8/14/2019 IP Law_Term Paper by RMPiyadasa

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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

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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.

20


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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
http://books.google.com/books?id=OwRtAtxIuUkC&pg=PA26&dq=ip+law+and+business&lr=&as_brr=1#v=onepage&q=&f=falsehttp://books.google.com/books?id=OwRtAtxIuUkC&pg=PA26&dq=ip+law+and+business&lr=&as_brr=1#v=onepage&q=&f=falsehttp://books.google.com/books?id=OwRtAtxIuUkC&pg=PA26&dq=ip+law+and+business&lr=&as_brr=1#v=onepage&q=&f=falsehttp://books.google.com/books?id=OwRtAtxIuUkC&pg=PA26&dq=ip+law+and+business&lr=&as_brr=1#v=onepage&q=&f=false


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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


1883

amende

d 1967

and1979

Paris

Convention

Paris Convention for the

Protection of Industrial

Property


MADRID AGREEMENT FOR THE REPRESSION OF FALSE OR DECEPTIVE INDICATION OF

SOURCE ON GOODS


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


NAIROBI TREATY ON THE PROTECTION OF THE OLYMPIC SYMBOL


1981 Nairobi

Treaty

Nairobi Treaty on

the Protection of the

Olympic Symbol


TRADEMARK LAW TREATY (TLT)


1994 Trademark Trademark Law http://www.wipo.int.clea/docs/en/wo/wo027en.htm

22
http://www.wipo.int.clea/docs/en/wo/wo029en.htmhttp://www.wipo.int.clea/docs/en/wo/wo020en.htmhttp://www.wipo.int.clea/docs/en/wo/wo032en.htmhttp://www.wipo.int.clea/docs/en/wo/wo018en.htmhttp://www.wipo.int.clea/docs/en/wo/wo027en.htmhttp://www.wipo.int.clea/docs/en/wo/wo029en.htmhttp://www.wipo.int.clea/docs/en/wo/wo020en.htmhttp://www.wipo.int.clea/docs/en/wo/wo032en.htmhttp://www.wipo.int.clea/docs/en/wo/wo018en.htmhttp://www.wipo.int.clea/docs/en/wo/wo027en.htm


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Law

Treaty

Treaty

TREATIES FACILITATING THE INTERNATIONAL REGISTRATION OF INDUSTRIAL

PROPERTY : MADRID AGREEMENT CONCERNING THE INTERNATIONAL REGISTRATION

OF MARKS


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


HAGUE AGREEMENT


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


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


PROTOCOL RELATING TO THE MADRID AGREEMENT CONCERNING THE

23
http://www.wipo.int.clea/docs/en/wo/wo015en.htmhttp://www.wipo.int.clea/docs/en/wo/wo012en.htmhttp://www.wipo.int.clea/docs/en/wo/wo015en.htmhttp://www.wipo.int.clea/docs/en/wo/wo012en.htm


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INTERNATIONAL REGISTRATION OF MARKS


1989 Madrid

Protocol

Protocol Relating to

the Madrid

Agreement

Concerning the

International

Registration of

Marks


TREATIES ESTABLISHING INTERNATIONAL CLASSIFICATIONS

NICE AGREEMENT CONCERNING THE INTERNATIONAL CLASSIFICATION OF GOODS AND

SERVICES FOR THE PURPOSES OF THE REGISTRATION OF MARKS


1957 Nice

Agreement

Nice Agreement

Concerning the

International

Classification of

Goods and Services

for the Purposes of

the Registration of

Marks


LOCARNO AGREEMENT ESTABLISHING AN INTERNATIONAL CLASSIFICATION FORINDUSTRIAL DESIGNS


1968 Locarno

Agreement

Locarno Agreement

Establishing an

International

Classification for

Industrial Designs


VIENNA AGREEMENT ESTABLISHING THE INTERNATIONAL CLASSIFICATION OF

FIGURATIVE ELEMENTS OF MARKS


1973 Vienna

Agreement

Vienna Agreement

Establishing the

International

Classification of


24
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


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


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

25
http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htmhttp://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htmhttp://usinfo.state.gov/usa/infousa/law/gatt/iia1e.htmhttp://www.wto.org/english/docs_e/legal_e/ursum_e.htm/mAgreementhttp://www.wto.org/english/docs_e/legal_e/ursum_e.htm/mAgreementhttp://www.ustr.gov/Trade_Agreements/Bilateral/CAFTA/CAFTADR_Final_Texts/Section_Index.htmlhttp://www.ustr.gov/Trade_Agreements/Bilateral/CAFTA/CAFTADR_Final_Texts/Section_Index.htmlhttp://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htmhttp://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htmhttp://usinfo.state.gov/usa/infousa/law/gatt/iia1e.htmhttp://www.wto.org/english/docs_e/legal_e/ursum_e.htm/mAgreementhttp://www.wto.org/english/docs_e/legal_e/ursum_e.htm/mAgreementhttp://www.ustr.gov/Trade_Agreements/Bilateral/CAFTA/CAFTADR_Final_Texts/Section_Index.htmlhttp://www.ustr.gov/Trade_Agreements/Bilateral/CAFTA/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)

26


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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

27


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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

28


29/32

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

29


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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

30


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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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ip law_term paper by rmpiyadasa

Documents