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By Edward R. Hyde *
Third world countries desiring to encourage foreign investment
and stimulate their industrial potential are coming to realize that
a sound legal system is a prerequisite.
Sri Lanka is one such country. I was recently asked to spend three
months assisting its government in amending and updating its intellectual
property laws. Sri Lanka, formerly known as Ceylon, is an island
nation in the Indian Ocean off the southeastern coast of India.
In recent years it has moved from an unsuccessful socialistic economic
system to a free market, capitalistic economy and realizes that
intellectual property is a cornerstone of this type of economic
environment.
The Agency for International Development (USAID) provides U S.
foreign assistance to developing countries, and it initiated and
funded a program to provide an attorney specializing in intellectual
property law to assist the government of Sri Lanka in meeting the
World Trade Organization's intellectual property standards. Much
of USAID assistance is provided by organizations under contract
and, in this instance, the contract organization was the International
Executive Service Corps headquartered in Stamford, Connecticut.
As a former employee of USAID with many years of experience in intellectual
property law, I was recruited for the Sri Lanka project.
The project of updating the Sri Lanka intellectual property laws
was prompted by the signing and coming into effect of the World
Trade Organization Agreement(1) that established the World Trade
Organization. This agreement revised the old General Agreement on
Tariffs and Trade(2), and for the first time established intellectual
property along with goods and services as a commodity controlled
by the international trade regime. The Uruguay Round of negotiations
among the world's trading nations resulting in the World Trade Organization
Agreement included an "Agreement on Trade-Related Aspects of
Intellectual Property Rights Including Trade in Counterfeit Goods"(3)
commonly referred to as TRIPS.
The TRIPS agreement contains general basic principles as national
treatment(4) and most favored nations treatment(5) and establishes
specific minimum protection(6) and enforcement requirements(7) that
each nation must include in its domestic intellectual property laws.
Developing countries such as Sri Lanka have a transition period
of five years(8) expiring January 1, 2000 to bring their laws in
conformity with the TRIPS requirements.
The requirements of the agreement are cast as minimum standards
and a country must decide whether it is in its interest to exceed
these and, if so, to what extent in each of the various intellectual
property law categories(9). In addition, after the signing of the
TRIPS agreement, a 1996 diplomatic conference under the auspices
of the World Intellectual Property Organization (WIPO) agreed upon
two new treaties relating to copyright enforcement in the digital
age - the WIPO Copyright Treaty(10) and the WIPO Performances and
Phonograms Treaty.(11) Although neither treaty was yet effective,
the issue was presented whether a developing country, such as Sri
Lanka, amending its laws to meet TRIPS requirements should at the
same time conform its laws to the two new WIPO treaties. Thus the
project of amending the Sri Lankan intellectual property laws went
beyond simply meeting the TRIPS requirements.
After arriving in Colombo, the capital of Sri Lanka, I was assigned
an office at the International Executive Service Corps headquarters.
A law-drafting commission had been appointed in advance of my trip
under the direction of the Director of the Sri Lanka Intellectual
Property Office. I promptly met with the Director, and we agreed
to weekly meetings and regular fax exchanges on formulating an amended
intellectual property law over the subsequent three months. One
of the primary assigned goals of the project was to develop an awareness
within the business community of intellectual property law and to
elicit comments and suggestions that could aid in formulating the
new Sri Lankan law. To that end, I set up meetings with individuals
in governmental departments, groups in the private sector such as
trade associations, chambers of commerce, and individual business
people.
Sri Lanka is a country with a ninety-percent literacy rate and
a trained work force that is developing high tech industries including
computer software. In meeting with computer software industry people,
however, I learned that the lack of an effective intellectual property
law was adversely affecting prospective joint ventures and other
business arrangements between Sri Lankan software companies and
U.S. companies. Further, during my first week in the country, there
was a Reuters dispatch referring to the foreign owned laboratory
in Moratuwa University in Colombo and noting that further investment
awaited a modern intellectual proper law. Thus, there was a clear
realization in both the government and private sector that the project
o£ developing new intellectual property laws was a priority
item.
After a month of individual meetings, I scheduled a series of half-day
seminars organized by industry groups - i.e. computer software,
music composers, media, agribusiness, TV and radio broadcasting
- and covering the basic characteristics of the categories of intellectual
property law appropriate to the particular industry group. The theme
of each seminar was "How intellectual property rights can be
useful to your business." Over the three-month period, we continued
to formulate specific provisions of the new draft law between meetings
and seminars.
During my stay in Sri Lanka, two intellectual property representatives
of the European Union also visited the country with a view to providing
technical assistance. In a meeting with them, I was able to describe
the widespread awareness and interest in intellectual property among
the private and public sectors in the country. They believed that
judicial training in this discipline would be particularly helpful,
and presumably that assistance will be forthcoming from the European
Onion.
As time went by, we formulated the proposed amended law to meet
World Trade Organization requirements as well as to be compatible
with the new WIPO Copyright Treaty and Performances and Phonograms
Treaty. We took special care to have a balanced intellectual property
code, particularly in the field of copyrights that took into consideration
the legitimate interests of other than intellectual property rights
holders. The draft was completed by the time of my departure and,
of course, must go through normal Executive Branch approval procedures
before being submitted to Parliament for hearings, readings and
eventual passage, all of which will require at least a year' s time
.
Throughout the period of my assignment, I had the assistance of
the USAID Mission and U.S. Embassy in Colombo as well as the local
office of the U.S. Information Service.
Looking back, the experience was not only professionally rewarding
but also personally enjoyable. The Sri Lankan people are noted for
their hospitality and pleasant manner, and I found them extremely
hospitable.
Mostly, however, I have the feeling of a fine accomplishment in
assisting in the preparation of an up-to-date intellectual property
code, which I believe will contribute significantly to the development
of the country through foreign investment, over-seas trade, and
stimulation of domestic creativity.
* Edward R. Hyde formally Intellectual Property Counsel of the Perkin-Elmer
Corp. is an Adjunct Professor of Law at Quinnipiac College School
of Law, and serves as the Chairman of the International Practice
Subcommittee of the Federalist Society's Intellectual Property Practice
Group. This article was previously published in the Connecticut
Lawyer March 1999.
- Agreement Amending the
General Agreement on Tariffs and Trade and Creating the World
Trade Organization, Signed by the Members of GATT April 15, 1994
at Marrakesh, Morocco. 33 International Legal Materials Journal
1.
- General Agreement on
Tariffs and Trade, October 30, 1947, 55 U.N.T.S. 187.
- 3 International Legal
Materials 1, 83-111 (1994)
- TRIPS Art. 3
- TRIPS Art. 4
- TRIPS Part II
- TRIPS Part III
- TRIPS Art. 65 (2)
- TRIPS Art. 1 (2) designates
seven categories of intellectual property: (1) Copyrights; (2)
Trademarks; (3) Geographical Indications; (4) Industrial Designs;
(5) Patents including plant varieties; (6) Layout-Designs of Integrated
Circuits; and (7) Trade Secrets.
- WIPO Copyright Treaty
concluded at Geneva, Switzerland on December 20, 1996 http:/www.wipo.org/eng/diplconf/distrib/94dc.htm
- WIPO Performances and Phonograms Treaty concluded
at Geneva, Switzerland on December 20, 1996 http:/www.wipo.org/eng/diplconf/distrib/95dc.htm
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