Copyright Law and Translation

Access to Knowledge in Developing Economies

Chamila S. Talagala, Chamila Talagala

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9780367861063
• eBook ISBN: 9781000378375
• Edition: 1
• Topic: Law
• Subtopic: Commercial Law
• Index: Law

Arguing that the translation of scientific and technical learning materials, and the publication of these translations in a timely and affordable manner, is crucially important in promoting access to scientific and technical knowledge in the developing world, this book examines the relationship between copyright law, translation and access to knowledge.

Taking Sri Lanka as a case study in comparison with India and Bangladesh, it identifies factors that have contributed to the unfavourable relationship between copyright law and the timely and affordable translation of scientific and technical learning materials, such as colonisation, international copyright law, the trade interests of the developing economies and a lack of expertise and general lack of awareness surrounding copyright law in the developing world.

Highlighting the need to reform international copyright law to promote the needs and interests of developing countries such as Sri Lanka, the book points to a possible way forward for developing countries to achieve this and to address the problem of striking a proper and delicate balance in their copyright laws between the protection of translation rights and the ability of people to access translations of copyright protected scientific and technical learning materials.

III The British model of copyright law and translation [1908–1979]

3.1. Introduction

The copyright regimes implemented in Sri Lanka from 1908 to 1979 mark the first stage of the history of Sri Lankan copyright law. These regimes were modelled entirely on British copyright law. The British model of copyright law that was adopted in Sri Lanka in this period was inimical to timely and affordable translation. The purpose of this chapter is to examine the reasons for this and why this copyright law was implemented in Sri Lanka.

As discussed further in this chapter, the British model of copyright law was first incorporated into domestic statute law in Sri Lanka through the Copyright Ordinance 1908. The model got entrenched in Sri Lanka with the application of the Imperial Copyright Act 1911.¹ The Imperial Copyright Act continued to govern the copyright law of Sri Lanka until the introduction of the Code of Intellectual Property Act 1979 (IP Code).

1See Copyright Ordinance No 20 of 1912 (Sri Lanka).

Both the Copyright Ordinance 1908 and the Imperial Copyright Act 1911 conferred an exclusive right on copyright owners to translate their works without providing for commensurate exceptions to that right. This restricted timely and affordable translation of copyright protected works required for promoting access to scientific and technical knowledge in Sri Lanka.

The British model of copyright law introduced into Sri Lanka was essentially a direct response to the interests of the key stakeholders in the British publishing industry, namely, the British government, publishers, authors and the reading public. To understand the British model of copyright law in Sri Lanka and why it protected translation rights, it is necessary to understand these interests and the extent to which they influenced the protection of translation rights in British copyright law. Therefore, this chapter will examine how the interests of key stakeholders in the British publishing industry influenced the protection of translation rights in British copyright law throughout its history, that is, from the point of the introduction of printing to Britain in the fifteenth century up to the enactment of the Imperial Copyright Act in 1911. The chapter demonstrates that the reason for British copyright law’s delay in conferring translation rights to British authors until the twentieth century was that translations were seen as an important aspect of public access to knowledge. However, when literary, artistic and scientific activities and book publishing in Britain blossomed (making it a developed country in the field of literature, arts and science), the prominence attached to translations as an important means of promoting public access to knowledge lost its value. Moreover, the new trade interests that persuaded Britain to expand the scope of copyright protection ultimately resulted in the right to translate being recognised as an important and fully fledged exclusive right of the copyright owner.

3.2. British model of copyright in Sri Lanka

Copyright law was first introduced into Sri Lanka during British rule (1796–1948).² The British model of copyright law was one of the means through which British interests were accepted in Sri Lanka. It also signified the right of Britain to use Sri Lanka as part of the British Empire.³ Surprisingly, even after Sri Lanka’s independence in 1948, the country remained a part of Britain as far as copyright law was concerned. This was because Sri Lanka continued with the British model of copyright law until 1979. As Minister Athulathmudali observed, it was only with the passage of the IP Code that Sri Lanka began to be liberated from ‘restrictive English practices in regard to copyrights’.⁴

2See especially Copyright Act 1842, 5 & 6 Vict, c 45, s 29. See also DM Karunaratna, An Introduction to the Law of Copyright and Related Rights in Sri Lanka (Sarvodaya Vishva Lekha, 2006) 5; Harsha Cabral, Intellectual Property Law in Sri Lanka: The Act No 36 of 2003, the TRIPS Agreement and a Case Digest (2004) 1.

3Sri Lanka, Parliamentary Debates, 25 May 1979, col 501.

4Ibid.

The Copyright Ordinance 1908 was the first domestically enacted copyright statute in Sri Lanka.⁵ This Ordinance was repealed and replaced by the Imperial Copyright Act 1911, which governed the subject of copyright in Sri Lanka until the IP Code was enacted in 1979. The Copyright Ordinance 1908 and the Imperial Copyright Act 1911 were hallmarks of British copyright, with their roots in the British Parliament. Although the Copyright Ordinance 1908 was enacted by the British Governor of Colonial Sri Lanka with the consent of the Ceylon Legislative Council, it was almost a verbatim reproduction of the Copyright Act 1905 of the Commonwealth of Australia which, in turn, was based on the British Copyright Bill 1900.⁶ Likewise, the Imperial Copyright Act 1911 was an all-embracing copyright statute enacted by the Parliament of Britain. According to Sherman and Bently, with the passage of the Imperial Copyright Act Britain formally completed at a statutory level the process of ‘domestic embodiment of the model of copyright which was institutionalised in the international copyright agreements’ entered into by that country.⁷ The Imperial Copyright Act 1911 became applicable in Sri Lanka by direct extension, as in many other countries of the British Empire.⁸

5Karunaratna, above n 2, 5.

6See Ceylon, Council Debates, Ceylon Legislature, 9 September 1908, 60–61; Copyright Law Review Committee, Report of the Committee Appointed by the Attorney General of the Commonwealth to Consider What Alterations Are Desirable in the Copyright Law of the Commonwealth (1959) 9.

7Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law: The British Experience, 1760–1911 (Cambridge University Press, first published 1999, 2003 ed) 127–128.

8Copyright Act 1911, 1 & 2 Geo 5, c 46, s 25.

For these reasons the Copyright Ordinance 1908 and the Imperial Copyright Act 1911 can hardly be described as Sri Lankan copyright legislation in the true sense of that term. As Minister Athulathmudali stated when he moved the second reading of the Code of Intellectual Property Bill 1979 in the Sri Lankan Parliament:

Our country [Sri Lanka] has never had a copyrights ordinance until this Bill was introduced. Until now it was 99 per cent based on English law—without even a parliamentary statute. This English law of 1911 applied to Sri Lanka and we have carried on with that. That is, their interests were accepted here—all their English copyrights and their right to use this country as part of England as far as the copyrights law in England was concerned.⁹

9Sri Lanka, above n 2, col 501.

3.2.1. The Copyright Ordinance 1908 and translation

The Copyright Ordinance 1908 was inimical to the timely and affordable tr...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• List of abbreviations
• Table of international treaties, conventions and other instruments
• Table of statutes and bills
• Table of cases
• I Introduction
• II Access to scientific and technical knowledge, translation and copyright in Sri Lanka
• III The British model of copyright law and translation [1908–1979]
• IV WIPO model of copyright law and translation [1979–2003]
• V TRIPS model of copyright law and translation [2003–2020]
• VI Conclusion and the way forward
• Bibliography
• Index