If You Have an Idea....
By Sharon Arnolda Ceylon Today Features
Everything you see around you was once just a little spark in someone’s head; from inventions that have changed the course of the world to inventions that make peeling a fruit easier; each and every one of them took one individual thinking differently to the rest of us.
Thus, it is safe to say that almost everything we now hold dear was because one person or a group of people approached an everyday problem differently.
Innovative ideas have and will always be the way the world moves forward. These ideas should be protected and the innovators behind such ideas honoured and compensated. The section of the law that deals with innovators and their rights is largely referred to as ‘Intellectual Property Law’. It is traditionally divided into two categories: Industrial property includes patents for inventions, trademarks and service marks Industrial designs and geographical indications whereas Copyright covers rights pertaining to literary and artistic works.
Unlike most other areas of the law, this arm of commercial law deals with the intangible idea/ asset ownership and legal protection by an entity from being replicated without consent. Defining Intellectual Property (IP) as an asset within the corporate sphere aims at providing the same protective rights as physical property; enabling it to be owned, alienated and licensed. This in turn provides a pathway for the creator or owner of an intellectual property to benefit from his or her own work.
There are extensive international systems in place for defining, protecting and enforcing IP rights which comprise both multilateral treaty schemes and international organisations. Some such agreements include ;Trade-Related Aspects of Intellectual Property Rights (TRIPs), World Intellectual Property Organisation (WIPO), World Customs Organisation (WCO), United Nations Commission on International Trade Law (UNCITRAL), World Trade Organisation (WTO), and European Union (EU).
One of the most comprehensive Agreements to date stands to be the Trade-Related Aspects of Intellectual Property Rights (TRIPs). The agreement between all nations of the World Trade Organisation came into effect in 1995. It establishes the minimum standards for the availability, scope and use of seven forms of Intellectual property; copyrights, trademarks, geographical indications, industrial designs, patents, Trade secrets (undisclosed information) and layout designs for integrated circuits.
The Agreement further lays out exceptions in order to balance the interest of the intellectual property holder against concerns such as public health and economic development.
However, the manner in which the rights are protected varies at a local level.
Exploring how IP is protected in the country
One of the first South Asian Countries to adopt this model of legislation, Sri Lanka passed its Intellectual Property Act 36 of 2003 in line with the TRIPS Agreement which aims to promote local creativity, and further provides comprehensive guidelines for all matters related to; Copyright and related Rights, Inventions (patents), Trademarks, Service Marks, Certification marks & Collective marks, Industrial designs, Unfair competitions, Geographical indications and Undisclosed information.
Copyright and related rights: Copyright in Sri Lanka is generally protected during the lifetime of the author/ creator and for 70 years following their death. The works of local authors are protected in all Member States of the Berne Convention under the national law of each country.
Industrial Design: Legal protection for an Industrial Design expires on the completion of five years and could be renewed only for another period of five years. Once registered the owner of the design can exercise exclusive rights such as making, using, importing and exporting articles comprising such protected design.
Patents: A patent is granted on behalf of an ‘Invention’: in order for an invention to be patentable it needs to be something that is not known in the existing knowledge, something which is industrially applicable and something with involves an inventive step, it should be noted that developments to existing inventions can be patented as long as it does not infringe the rights of the initial patent holder and is not obvious to a person of average skill in the particular field. In being granted a patent an inventor is given the right by the State to exclude others from making, selling or using the patented invention for a period of 20 years from the date of application. The owner is able to commercialise the invention by selling or licencing patented technology and derive financial benefits.
Patents are not given in relation to: Scientific theories and mathematical methods, Plants, animals, microorganisms other than transgenic Microorganisms and an essentially biological process for the production of plants and animals other than non biological and microbiological processes, methods of treatment for human or animal body by surgery or therapy and diagnostic methods practised on the body, Schemes, rules or methods for doing business, performing purely mental acts or playing games and Inventions that are necessary to protect public order, morality including human and animal or plant life, health or to avoid serious prejudice to the environment.
Patents are only valid in the country in which it is granted, however, since Sri Lanka is a member of the Paris Convention for the protection of Industrial property, Sri Lankans can apply for patent protection under the local laws of any member country.
Trade Marks: A visible sign that is capable of distinguishing the goods and services of different enterprises, a trademark relates to goods whereas a service mark relates to services.
Registration is valid for a period of 10 years and can be renewed for a further period of 10 years upon expiry. Marks are only valid on the territory of Sri Lanka however, the country plans on becoming a member of the Madrid Protocol which will enable Sri Lankans to make a single application with a calculated fee in order to gain protection in 114 Member States. Currently, Sri Lankans can claim priority under the Paris Convention in its member countries.
Geographical Indications: A name or sign that indicated that the goods have a certain character, reputation or quality due its place of origin.
Some of the common GI’s associated with the country are: Ceylon Tea, Ceylon Cinnamon and so on; these can be protected in all Member States of the WTO under the national law of a particular country.