This book is a reflection on domestic intellectual property lawmaking from a developing country’s perspective. It focuses on Sri Lanka―a South Asian jurisdiction with a socio-economic, cultural, and political landscape similar to other developing nations in the region, but the intellectual property regime of which has been less explored. The aim of this book is to address the discrepancies, gaps, and flaws in the national intellectual property legal framework of Sri Lanka. In doing so, the book considers Sri Lanka’s obligations under TRIPS and other related intellectual property treaties to which the country is a party. The book also examines approaches adopted by developing countries in the region and beyond, as well as other more developed nations, in calibrating Sri Lanka’s domestic intellectual property regime to better address the country’s domestic needs and national interests. The approach adopted in this book is of relevance, more generally, to policymakers, legislators, legal academics, scholars, jurists, legal practitioners and judges who are keen on exploring the extent to which domestic intellectual property legislation complies with international intellectual property norms and standards and, more importantly, the extent to which domestic law makes use of the flexibilities under international law in addressing domestic needs and national interests.
Author(s): Althaf Marsoof, Kanchana Kariyawasam, Chamila Talagala
Series: International Law and the Global South
Publisher: Springer
Year: 2022
Language: English
Pages: 322
City: Singapore
Foreword
Preface
Contents
About the Authors
Abbreviations
1 Introduction
1.1 The Struggle to Be Part of a Global System
1.2 A Snapshot of Sri Lanka’s IP Legal Framework
1.3 Approach of the Book and Its Scalability
1.4 A Roadmap of the Book
References
2 Crafting Domestic Intellectual Property Law–International Obligations, Flexibilities, and Approaches
2.1 International Obligations and Flexibilities
2.1.1 Minimum Standards
2.1.2 Flexibilities
2.2 Formulating Domestic Intellectual Property Law and Addressing National Interests
2.2.1 Legislating Through Consultation
2.2.2 Legislating with Evidence
2.2.3 Legislating with a Comparative Lens
2.3 From Process to Substance
References
3 Patents
3.1 The Evolution of Patent Law
3.2 Role of R&D in Driving Innovation
3.3 Patentable Inventions
3.3.1 Inventions
3.3.2 Novelty
3.3.3 Inventive Step
3.3.4 Industrial Applicability
3.4 Nature and Scope of Patent Rights
3.4.1 Scientific Research and Experimental Use Exception
3.4.2 The Regulatory Review or Bolar Exception
3.4.3 Compulsory Licensing and the Local Working Requirement
3.4.4 Exhaustion of Rights and Parallel Imports
3.5 Utility Models
3.6 Recommendations
References
4 Plant Varieties, Farmers’ Rights, and Access to Genetic Resources
4.1 A Snapshot of Sri Lanka as an Agricultural Nation
4.2 The International Framework
4.3 Protection of New Plant Varieties (Breeder’s Rights) Bill 2001
4.3.1 Overview of the Protection of New Plant Varieties (Breeder’s Rights) Bill 2001
4.3.2 A Critical Evaluation of the Protection of New Plant Varieties (Breeder’s Rights) Bill 2001
4.3.3 A Revised Bill After a Decade, But Still No Law in Place
4.4 Biopiracy and Access to Genetic Resources
4.4.1 Draft Law on Access to Genetic Resources
4.4.2 A Critical Review of the Draft Law
4.5 Recommendations
References
5 Trade Marks
5.1 The Evolution of Trade Mark Law
5.2 Registrable Trade Marks
5.2.1 Signs Capable of Being Registered as a Trade Mark
5.2.2 Inadmissibility of Marks on Objective Grounds
5.2.3 Grounds of Inadmissibility and the Paris Convention
5.2.4 Inadmissibility of Signs on the Basis of Third-Party Rights or Interests
5.3 Nature and Scope of Trade Mark Rights
5.3.1 Nature of Trade Mark Rights
5.3.2 Scope of Protection
5.4 Recommendations
References
6 Geographical Indications
6.1 Sri Lankan Geographical Indications
6.2 The International Framework for the Protection of Geographical Indications
6.3 The Adequacy of Sri Lanka’s Legal Framework for the Protection of Geographical Indications
6.3.1 The Sui Generis Regime
6.3.2 Certification and Collective Marks
6.3.3 Unfair Competition
6.4 Calls for a Domestic Register of Geographical Indications
6.4.1 The Concerns and Perceptions of Local Industries and Academics
6.4.2 Some Reflections on the Introduction of a Domestic Geographical Indications Register
6.5 Recommendations
References
7 Copyright
7.1 The Evolution of Copyright Law
7.2 Works Protected
7.2.1 Literary, Artistic and Scientific Domain
7.2.2 Original Intellectual Creations
7.2.3 Fixation
7.3 Nature and Scope of Rights
7.3.1 Moral Rights
7.3.2 Economic Rights
7.4 Exceptions and Limitations to Copyright Protection
7.4.1 The Fair Use Exception
7.4.2 Special Exceptions in the Berne Appendix
7.5 Weaknesses and Inadequacies–The Access Problem
7.6 Recommendations
References
8 Traditional Cultural Expressions
8.1 Defining Traditional Cultural Expressions
8.2 Traditional Cultural Expressions of Sri Lanka
8.3 Protection of Traditional Cultural Expressions
8.3.1 Why Should Traditional Cultural Expressions Be Protected?
8.3.2 Attributes of Protection
8.3.3 Positive Protection
8.3.4 Defensive Protection
8.4 Protection of “Expressions of Folklore” Under Sri Lanka’s Intellectual Property Act 2003
8.4.1 Protection
8.4.2 Limitations
8.4.3 Enforcement
8.4.4 Benefit-Sharing Arrangements
8.5 Recommendations
References
9 Way Forward
9.1 Digitisation
9.2 A Proactive Intellectual Property Office
9.3 A Robust, Efficient, and User-Friendly Intellectual Property Dispute Resolution Landscape
9.4 Closing Remarks
References
Index
