Reframing Intellectual Property Law in Sri Lanka: Lessons from the Developing World and Beyond

323 Pages·2022·5.508 MB·English

by  Althaf Marsoof, Kanchana Kariyawasam, Chamila Talagala

International Law and the Global South
Perspectives from the Rest of the World
Althaf Marsoof
Kanchana Kariyawasam
Chamila Talagala
Reframing
Intellectual
Property Law
in Sri Lanka
Lessons from the Developing World
and Beyond
International Law and the Global South
Perspectives from the Rest of the World
Series Editor
Leïla Choukroune, International Law and University Research, Portsmouth
University, Portsmouth, UK
Editorial Board
Balveer Arora, Centre for Multilevel Federalism (CMF), Institute of Social
Sciences, Delhi, India
Eros Roberto Grau, Faculty of Law, Universidade de São Paulo, São Paulo, Brazil
Denise Prevost, Department of International & European Law, Maastricht
University, Maastricht, Limburg, The Netherlands
Carlos Miguel Herrera, CY Cergy Paris University, CERGY, France
This book series aims to promote a complex vision of contemporary legal devel-
opments from the perspective of emerging or developing countries and/or authors
integrating these elements into their approach. While focusing on today’s law and
international economic law in particular, it brings together contributions from, or
influenced by, other social sciences disciplines. Written in both technical and non-
technical language and addressing topics of contemporary importance to a general
audience, the series will be of interest to legal researchers as well as non-lawyers. In
referring to the “rest of the world”, the book series puts forward new and alternative
visions of today’s law not only from emerging and developing countries, but also
from authors who deliberately integrate this perspective into their thinking. The series
approach is not only comparative, post-colonial or critical, but also truly universal
in the sense that it places a plurality of well-informed visions at its center.
The Series
Provides a truly global coverage of the world in reflecting cutting-edge developments
and thinking in law and international law
Focuses on the transformations of international and comparative law with an
emphasis on international economic law (investment, trade and development)
Welcomes contributions on comparative and/or domestic legal evolutions
· ·
Althaf Marsoof Kanchana Kariyawasam
Chamila Talagala
Reframing Intellectual
Property Law in Sri Lanka
Lessons from the Developing World
and Beyond
Althaf Marsoof Kanchana Kariyawasam
Nanyang Business School Griffith Business School
Nanyang Technological University Griffith University
Singapore, Singapore Brisbane, QLD, Australia
Chamila Talagala
Australian Centre for Intellectual
Property in Agriculture
Brisbane, QLD, Australia
ISSN 2510-1420 ISSN 2510-1439 (electronic)
International Law and the Global South
ISBN 978-981-19-4581-6 ISBN 978-981-19-4582-3 (eBook)
https://doi.org/10.1007/978-981-19-4582-3
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature
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We dedicate this book to our fathers—the true heroes in our lives
Foreword
This book is an imaginative, yet intensely practical, exploration of the tools and
techniques required for building an effective, post-colonial Intellectual Property
(“IP”) regime. The following pages productively explore the room to manoeuvre
at the national level within the constraints of international treaty obligations. It is,
therefore, a book that is relevant beyond its chosen focus—Sri Lanka—since it offers
valuable lessons for any developing country policymaker confronting this question.
One could not have selected a better team of authors to write such a book. Profes-
sors Althaf Marsoof, Kachana Kariyawasam, and Dr. Chamila Talagala are inti-
mately familiar with IP legislation, doctrine, and policy in Sri Lanka. Furthermore,
their own biographical journeys ensure that this book is enriched by comparative law
insights from Australia, Singapore, the United Kingdom, and several other developed
economies as well as Asian neighbours. The authors also combine scholarly rigour
with practitioner experience and insights derived from government service.
Like many of its immediate neighbours, Sri Lanka has inherited a colonial IP
framework. This has been further circumscribed by a series of international commit-
ments to uphold minimum substantive standards of IP protection. However, the
authors urge legislators and policymakers not to squander the opportunities presented
within this international IP framework. They identify sites that have the potential
to craft a balanced IP regime catering to domestic needs and priorities, including
public health prerogatives, cultural policy, and education. It, therefore, is possible
to respect international commitments while being more sensitive to local priorities.
The argument is cleverly crafted, clearly written, and compellingly argued.
For example, while the substantive international standards for patent subsistence
may be harmonised, we are reminded that individual elements or concepts within
these standards have wriggle room. While international patent law requires that
inventions be novel, countries retain the choice to implement this as an absolute,
relative, or local novelty standard. Defences and limitations, such as compulsory
licences both for technology (as the pandemic has reminded us) and for ensuring
the availability of copyright works in a local language, remain viable and should be
utilised. Countries also retain the ability to exercise a choice between a national or
international rights exhaustion regime. Exploring these spaces is, therefore, one of
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viii Foreword
the two main contributions of this book. The other relates to more effective IP policy
design and implementation. The book identifies best practices when drafting legis-
lation—the need for wide-ranging consultations and evidence-based policymaking
features in these pages—while the authors conclude by advocating practical and
procedural reforms to the national IP office, such as digitisation and improvements
to the dispute resolution landscape.
This book is, therefore, a valuable contribution for anyone interested in how
developing countries can, in very practical terms, reconcile competing tensions and
craft a better IP ecosystem. It is accessibly written and extremely well-researched.
The authors are to be congratulated on their achievements. These are ideas that
deserve to travel widely.
Dev Saif Gangjee
Professor of IP Law
University of Oxford
Oxford, United Kingdom
Preface
Developing countries of the Global South found the notion of Intellectual Property
(“IP”) repugnant to their economic, social, political, and cultural contexts. They
saw IP as a creature of the industrialised world—the Global North. To some extent,
they still do. But the union of IP and global trade, when members of the World
Trade Organization (“WTO”) negotiated and entered into the Agreement on the
Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), has compelled the
developing world even unwillingly to fully embrace the IP system. Countries that fail
to do so face the threat of being excluded from the WTO’s multilateral trade system,
risk sanctions from their trading partners, and are likely to lose foreign investment.
Thus, it is not surprising that Sri Lanka, a founding member of the WTO, decided to
bring its laws into conformity with TRIPS by enacting the Intellectual Property Act
2003 (“IP Act”), a statute that was specifically crafted for this purpose.
Almost 20 years have elapsed since the enactment of the IP Act. But as a nation,
Sri Lanka is still a developing country grappling with the very same problems it did
decades ago. In economic terms, the country is doing far worse at present, lagging
considerably behind its neighbours. As we pen down these words, Sri Lanka was
facing its worst economic crisis since gaining independence from British rule in
1948. In March 2022, the foreign reserves of the country hit a record low of US$1.9
billion. The country was already facing a fuel and food shortage, requiring rationing
measures to be put into place. Public hospitals were unable to treat patients and
perform surgeries due to shortages in medicines and medical equipment. A long-
escalating fiscal and economic crisis, compounded by the COVID-19 pandemic,
forced Sri Lanka to announce a default on all its outstanding foreign debt, running
into US$51 billion. Life as we know it had come to a standstill. The beautiful island,
home to nearly 22 million people, was on the brink of economic destruction.
Given the economic hardships, it was not surprising to see the people of Sri Lanka
taking to the streets with protests in all parts of the country seeking political change.
These protests, which began in small pockets, gathered momentum and magnitude
over a period of a month. At the centre of this struggle was the peaceful protest in
Gall Face, a green open space opposite the Presidential Secretariat in the heart of
Sri Lanka’s commercial capital, Colombo. Thousands of protesters came together,
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x Preface
marking the beginning of “Occupy Galle Face” and continued their protest for weeks
voicing a singular and clear message—the need for political change and progressive
policies. A striking feature of all these protests was the unity among the Sri Lankan
people. Perhaps, this is the silver lining in the midst of all the chaos. There is still
hope for Sri Lanka to bounce back as a united nation.
There are many factors that have cumulatively led to Sri Lanka’s current
economic and political predicament. Inconsistent government policies, mismanage-
ment, corruption, and the lack of visionary leadership have been the key obstacles.
But as a country, Sri Lanka has tremendous potential. When one looks back at Sri
Lanka’s ancient history, it had been a highly innovative and enterprising nation. It
had made vast strides in innovation, industry, and also culturally. However, succes-
sive governments that came into power after independence have failed to realise
Sri Lanka’s true potential. They have neglected to harness Sri Lanka’s natural and
human resources. As we see it, in the area of creativity, innovation, research and
development, and entrepreneurship, the lack of a coherent and robust national IP
policy and an IP legal framework that is effective but at the same time calibrated to
reflect the country’s domestic interests are two of the key factors that have held back
Sri Lankan innovators, researchers, and entrepreneurs for decades. A report titled
Integrating Intellectual Property into Innovation Policy Formulation in Sri Lanka
published by the World Intellectual Property Organization (“WIPO”) in 2015, among
other things, pointed out that the responsibility for research, science, and technology
was spread across many ministries and agencies lacking in efficiency and coordina-
tion. The WIPO report also revealed that there was a decline in both the interest in
science and the number of scientists in the country. Importantly, the WIPO report
noted that although several policies had been formulated in the area of science and
technology, none had satisfactorily incorporated IP considerations into them.
In contrast, Sri Lanka’s neighbours in the region have adopted comprehensive
national IP policies that focus on the role of IP law in promoting a culture of inno-
vation and creativity. For instance, India adopted its National Intellectual Property
Rights Policy in 2016. India’s national IP policy was aimed at creating a dynamic,
vibrant, and balanced IP rights system to “foster creativity and innovation and thereby
promote entrepreneurship and enhance socio-economic and cultural development”
and “focus on enhancing access to health care, food security, and environmental
protection, among other sectors of vital social, economic, and technological impor-
tance.” Bangladesh followed suit in 2018 with its national IP policy aiming to estab-
lish a “balanced IP infrastructure in the country and to make IP an integral part of
the national development plans and strategy.”
We firmly believe that the time is ripe for Sri Lanka to revaluate its strategy and
approach towards IP protection with a view of entirely revamping and updating the
current IP legal framework. Five years ago, we approached the Ministry of Trade
to pitch an idea for a comprehensive and ambitious study, in collaboration with a
local research institute, to develop a national IP policy for Sri Lanka and recommend
changes to the provisions of the IP Act. Unfortunately, but somewhat unsurprisingly,
our ideas fell on deaf ears. To date, however, Sri Lanka has not officially developed
or adopted a national IP policy. Nor has it taken the time to comprehensively assess