Intellectual property rights under ICT:

Copyright for creative work

Sunil D B Abeyaratne
Attorney-at-Law, Former Bar Association of Sri Lanka Secretary and Colombo Law Society IT Committee Chairman

What are the rights protected under Intellectual Property Law?

Copyright, Patent, Confidence, Trade Secrets, Designs, Layouts, Trade Marks, Passing Off, Unfair Competition and Undisclosed Information (Trade Secrets) are the key rights to consider under Intellectual Property Rights.

Development of Intellectual Property Law plays a vital role in the protection of Intellectual Property Rights of authors, inventors, owners who are involved in ICT industry. It encourages them to design, invent or produce new productions or methods to the world.

The International community has realised the value of protection of Intellectual Property Rights for Computer Programs and States have signed number of international treaties to fulfill this requirement, e.g. Trade-Related Aspects of Intellectual Property Rights (TRIPS), World Intellectual Property Organization (WIPO) Copyright Treaty and so on.

In Sri Lanka Parliament has introduced a new Intellectual Property Act No. 36 of 2003 including provisions for areas relevant to Information and Communication Technology.

This Act defines Intellectual Property rights like Copyright, Patent, Industrial Designs, Trade Marks, Unfair Competition, Undisclosed Information relating to computer programs, Layout Designs for Integrated Circuits etc., related legal rights, certain procedures on registration and remedies upon infringement of such rights.

Legal framework to protect computer programs with copyright

Computer programs are protected works by copyright as being within literary, artistic or scientific domain under the present Intellectual Property Act.

Any work to be protected as literary, artistic, or scientific domain, the Act requires them to be original intellectual creations. Whether a re-production is substantial must be decided by its quality rather than its quantity.

According to the interpretation or our Act ‘Computer’ means an electronic or similar device having information processing capabilities, ‘Computer program’ is a set of instructions expressed in words, codes, schemes or in any other form, which is capable, when incorporated in a medium that the computer can read, of causing a computer to perform or achieve a particular task or result.

However, this interpretation can bring unnecessary disputes in future.

Do ‘Databases’ get copyright

Computer programs shall be originated from the author. Courts expect creative achievement exceeding the average skills used in the development of computer programs for consideration of copyright.

Collection of works and collection of mere data (databases) are also protected as Derivative Works under Section 7 (1) (b) of the Act, whether they are in machine readable, or other form, provided that such collections are original by reason of the selection, co-ordination or arrangement of their contents.

In some Judgements of other jurisdictions it has been decided that the final effect of a compilation might be original even though many compilations have nothing original in their parts. On the other hand, linking several programs together cannot be considered as original compilation.

What are the specific rights of the copyright owner?

Owner of copyright has the exclusive economic rights specified under Section 9 of the Act. In the meantime, owner of a work or a copy of a work lawfully made or any person authorised in that behalf by such owner is entitled to sell or otherwise dispose of that copy without the authority of the owner of the copyright.

The author of a work has moral rights defined in the provisions under Section 10 (a)-(c) of the Act independent to his economic rights even where he is no longer the owner of such economic rights. Moral rights cannot be transferred but may pass under a will or operation of law. Further, author may waive any of such moral rights in writing and specify clearly.

What are the exceptions to copyright?

(a) Copyright shall not be extended to any idea, procedure, system, method of operation, concept, principle, discovery or mere data, even if expressed, described, explained, illustrated or embodied in a work, any official text of a legislative, administrative or legal nature, as well as any official translation thereof, news of the day published, broadcast or publicly communicated by any other means.

(b) ‘Algorithms’ frequently used in computer programming are not capable of copyright protection since they will be interpreted as ‘idea of algorithms’ under Section 8 (a) of the Act.

(c) Economic Rights expressed will not apply to ‘fair use’ of a work, including such use by reproduction in copies or by any other means specified by Section 11 of the Act, for purpose of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.

What is fair use?

The private reproduction of a published work in a single copy shall be permitted without the authorization of the owner of the copyright, where the reproduction is made by a physical person from a lawful copy of such work exclusively for his own personal purposes.

This permission has not been extended to the reproduction of the whole or a substantial part of a database of a computer program, except as provided in Subsection 12 (7) of the Act.

The factors like purpose and character of the use (whether such use is of a commercial nature or for non-profit educational purpose), nature of the copyrighted work, amount, substantiality of the portion of copyrighted work used, potential market for or value of copyrighted work shall be considered in determining whether the use made of a work in any particular case is fair use.

What are the remedies against violation of copyright?

Any person who infringes or is about to infringe any rights protected (aforesaid) may be prohibited by way of injunction and be liable for damages.

Act explains the binding decision of the Director-General of Intellectual Property of Sri Lanka and the jurisdiction of the Court for taking measures to protect, impounding of copies, order the payment by the infringer, order damages for the suffered as a result of the act of infringement, destruction or other manner of disposing of copies made in infringement of any said right protected, taking other preventive measures against acts of such infringement.