The digital world plays an important role in our lives today. Intellectual Property law is one of many legal frameworks that help us navigate this world by securing our rights.
Law is Light is a series of trilingual legal discussions that shed light on the law. The Latin maxim “ignorantia legis neminem excusat” translates to ignorance of the law is not an excuse. The Pro Bono Committee of the Law Students’ Association of Sri Lanka strives to educate the general public by simplifying the laws in our country. In the third discussion, the programme focused on “Intellectual Property” to provide an understanding of the rights available for property created by the intellect.
The discussion featured Attorneys-at- Law practicing in the field of Intellectual Property Law. Mr. Thishya Weragoda is an independent legal counsel at Neelakandan & Neelakandan, and a visiting lecturer at the Institute for the Development of Commercial Law and Practice. Ms. Aparajitha Ariyadasa is a visiting lecturer in cyber law at the University of Plymouth and at IJTS. She is also a senior consultant at Ceylon Chamber of Commerce, and a senior counsel and chairperson of Lanka Intellectual Property Organisation.
What is intellectual property?
The concept of property concerns ownership and possession. Property can be tangible – what we can see, touch and feel, and intangible – value created by assets that cannot be seen. Coca Cola is a well-known product in the world. The value is not in the bottle but the brand loyalty. The brand name is an intangible asset. Photographs are intellectual creations, and any monetisation made out of them belongs to the photographer. The law recognises five different classes of intellectual property:
- Copyright
- Trademark
- Patents
- Industrial designs
- Confidential information and trade secrets
Intellectual property law protects literary, artistic and scientific work. People can benefit from what they create. Intellectual property splits into two categories; one is associated with trade and includes industrial plans, scientific plans, patents, brand names and brand logos (industrial property). The other is intellectual properties with the right to publication such as literary works, artistic and scientific works, folklores, computer programmes, architectural plans and maps. There are also related rights; these entail rights of actors, broadcasters and sound engineers.
What is the importance of intellectual property law?
This law helps protect new creations by providing economic rights to the inventors, and helps protect the consumers by ensuring genuine products are bought.
Can you elaborate on the 5 different classes of intellectual property?
Copyright – The creations of the mind that are literal creations, artistic creations or scientific creations will be copyrightable creations. S.5 and S.6 of the Intellectual Property Act recognises the copyrightable works. The S.9 of the Act states that the creator of the works holds on to economic rights. These economic rights can be sold to another individual. Copyrights will end after lifetime plus a 70 year period and the matter falls into public domain.
Trademark – A logo can be registered as a trademark if it has value. Whether a mark is registered or unregistered, there are rights attached to it. As long as you pay for the registration of the mark to the registrar’s office, the trademark will be recognised. When a registration expires, it does not mean there are no rights associated. Unregistered marks will also have protection. That particular mark cannot be used without authorisation. There is a trademark registry at the National Intellectual Property Office where you can look for any conflicting or similar mark.
Patent – this concerns new inventions. There needs to be novelty and be able to solve problems. Once a patent is registered they get a 20 year period, and after such period expires, it falls into public domain.
Industrial design – the rights and requirements are slightly less than that for a patent.
Geographic indicators – like the Basmati rice or the Champaign comes from a particular region. Someone who makes tea from Kenya can’t say it’s Sri Lankan tea. A person who makes sparkling wine in Australia cannot say this is Champaign.
Confidential information and trade secrets – The recipe for Coca Cola is unknown and a well-kept trade secret. The people involved in the manufacturing are bound to protect that secret.
If a person wants to register his own creation or invention, what is the procedure?
There are 2 methods of protection. The less stringent is the ‘industrial design’ scheme, and the other is the more strenuous ‘patent’ scheme. They are two different regimes and the requirements are different. The Intellectual Property Act Chapter 3 covers industrial designs. It is required to establish some form of novelty and a use in it. The registration is done at the National Intellectual Property Office. There are 2 types of applications; one for industrial designs and one for patents – decide which one applies to you. For patents, state your claim and give a full disclosure of your creation.
Does a person require the assistance of an Attorney or can they do it on their own?
Services of a patent drafter are necessary for the application of a patent. In Sri Lanka, they are Attorneys- at- Law, but if you look at countries like Singapore, US and UK, they are patent drafters.
In written work, is plagiarism covered by IP law?
This is considered an ethical right. Where there is a substantial amount of information copied and amounts to unfair competition, it may amount to an infringement of IP laws. It may amount to a theft when the original writer is not mentioned.
When it comes to music, we see different versions of an old song. How can upcoming musicians create their own version of the song, in doing so will they be infringing another’s rights?
Reproducing a song will fall within the restrictions of economic rights of S.9 in the IP Act. The permission of the lyricist, producer and composer is required.
When it comes to designer items, could you explain the A-grade category and how it affects IP rights?
The A-grade or B-grade bags are not always replicas, they can be originals that were rejected by the original owner. These end up in the market. An original product can come to the market through unrecognised channels, this is called grey market imports. This cannot be stopped due to it being an original product, unless there is an exclusive territorial agreement with the agents.
A counterfeit product might look identical, but it is not an original. Counterfeits are illegal.
On Instagram we see people selling replicas of branded items in Sri Lanka. Can replicas be sold at the price of the original item? Does a consumer who buys a replica at the original price have redress?
If there is a local agent, it can be reported.
Does infringing intellectual property law amount to criminal liability?
A violation of IP law can lead to a civil and criminal liability. For example, if someone copies the song X created and makes money out of selling it, X can go the Magistrates Court for an order to destroy these CDs and obtain an injunction order.
What are the remedies available for an infringement of IP law?
First check whether rights have been infringed. Next file a criminal and civil action. The person who infringed your rights can be arrested, an injunction order can be obtained, or you can seek damages.
If someone uses a copyrighted picture without attributing rights to the owner, what legal action can be taken?
According to Copyright Law, by virtue of creation, irrespective of artistic merit, it is protected. The moment a photograph is taken, it is protected.
If a self-portrait is used without that person’s permission, can that individual take any action under IP law?
If the photograph was taken on behalf of the individual by the photographer, the individual would be the owner of the copyrights. The element of privacy ensures that your profile picture cannot be taken for an advertisement. The permission of the individual in the picture is required.
Can an individual repaint an ancient piece of art work, say the portrait of Mona Lisa, and profit out of it?
Mona Lisa is Da Vinci’s creation. The copyright protection lifespan has expired due to the demise of the painter 500 years ago. The painting is part of the public domain, therefore considering drawing it will not be a problem.
Copyrights will be active for new paintings.
Does IP protection have a time limit?
In general for expressions, for a writer it will be lifetime and 70 years. Trademarks have to be renewed every 10 years for an unlimited time.
The complete discussion is available on ‘Law Students Association of Sri Lanka’ YouTube channel, in all three languages.
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