October 01, 1999
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[i] that established the World Trade Organization. This agreement revised the old General Agreement on Tariffs and Trade[ii], 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"[iii] commonly referred to as TRIPS.
The TRIPS agreement contains general basic principles as national treatment[iv] and most favored nations treatment[v] and establishes specific minimum protection[vi] and enforcement requirements[vii] that each nation must include in its domestic intellectual property laws. Developing countries such as Sri Lanka have a transition period of five years[viii] 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[ix]. In addition, after the signing of the TRIPS agreement, a 1996 diplomatic conference under the auspices of the World Intellectual Property Organization (WDPO) agreed upon two new treaties relating to copyright enforcement in the digital age - the WIPO Copyright Treaty[x] and the WIPO Performances and Phonograms Treaty.[xi] 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 modem intellectual proper law. Thus, there was a clear realization in both the government and private sector that the project of 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 Union.
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.
[i] 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.
[ii] General Agreement on Tariffs and Trade, October 30, 1947, 55 U.N.T.S. 187.
[iii] 33 International Legal Materials 1, 83-111 (1994)
[iv] TRIPS Art. 3
[v] TRIPS Art. 4
[vi] TRIPS Part II
[vii] TRIPS Part III
[viii] TRIPS Art. 65 (2)
[ix] 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.