Commercial Law Sample Paper

Commercial law

1. Critically analyze the challenges involved in ensuring the copyrights of the
performers under the law of intellectual property.
Intellectual Property plays a vital role in modern economies as a valuable intangible asset.
Particularly, copyrights and related rights can be considered as a one of the most viable
intellectual property rights which can easily be acquired as well as unduly exploited. Notably,
the violation of the legitimate rights of the copyright owners has been gradually increased with
the proliferation of modern technologies. It is evident that it is easier to make unauthorized
copies of copyrighted works with using technologically advanced equipment within mini
seconds without consuming much effort. Inevitably, such a misappropriation of property rights
would challenge the interests of the owners who devoted their skills, interests and labor to
create that work with a financial motive. Therefore, the existing intellectual property law is
being modified in order to cater the new challenges on copyrights which occur due to the
expanding nature of digital environment.
The National Intellectual Property Office of Sri Lanka was established under the Intellectual
Property Act No 36 of 2003 is mandated with the administration of the Intellectual Property
System in Sri Lanka. It was first established in the year 1980 with the same mandate under the
provisions of Code of intellectual property Act no 52 of 1979.
The Act covers various items of Intellectual Property: Patents, marks, industrial designs, unfair
competition, layout designs of integrated circuits, Copyright and related rights. Act provides for
administration and enforcement of the protected intellectual property rights.
“Digitization has made it much easier to manipulate, reproduce, and distribute protected
works. Digital content can be combined, altered, mixed, and manipulated easily. By enabling
the making of perfect copies of copyrighted works for little cost, digital technology threatens to
undermine the distribution systems and increase unauthorized use of copyright works...” (Rafiqi
and Bhat, 2013)
Copyright can be recognized as an exclusive right of an author in relating to his or her creation.
As Karunarathna (2010) pointed out, “the law of copyright concerns the rights of the authors of
literary, artistic and scientific creations ‐ commonly known as ‘works’ and legitimate interests ‐
of the users of such creations.” However, it is notable that, copyright law protects only the form
of expression of ideas not the ideas themselves.
As recognized by Article 2 of the Berne convention of 1971, copyright protection includes
diverse forms of creativity, such as, for example, writings, musical compositions, films,
drawings, photography or architectural creations and etc. In addition to that, the WIPO
Copyright Treaty of 1996 introduced computer programs, considered as literary works.
As well, there are related rights or neighboring rights attached to the copyright protection. It
can be identified under three categories, the rights of performing artists in their performances,

the rights of producers of phonograms in their phonograms, and the rights of broadcasting
organizations in their radio and television programs (WIPO, 2008).
These related rights protect the interests of the persons who contribute to develop the creation
by expressing some kind of creativity or skills. The proliferation of technology leads the
copyrights and related rights regimes towards rapid changes which would be pervasive enough
to cater to the needs of the ‘creators’ on the one hand, and society at large on the other.
Whereas the ultimate aim of copyrights and related rights is to make a fair balance between
the rights of those two parties. For the purpose of achieving a tradeoff between these
conflicting interests, moral and economic rights and a specific time period for economical rights
are defined by law. However, the scope, purpose and the applicability of the copyrights and
related rights are being challenged by the digital environment.
Thus, to overcome these various challenges put forward by the expanding nature of the
modern technology, a need arises to expand the frontiers of copyrights and related rights and
to renovate the existing legal framework relating to protect those rights in networked and
digitalized environment. In analyzing the international legal context of copyrights and related
rights we can identify some initiatives which address this specific issue of protecting copyrights
and related rights in a digital environment. However, the Sri Lankan context is still not in par
with international legal regime and need to be revised with more developed legal principles.
As pointed out by the World Intellectual Property Organization (WIPO); ‘copyright is the legal
protection given to the creator of an original work’. (WIPO, 2008) Nonetheless, it can be
described as ‘an encouragement that takes the form of valuable or enforceable rights that
motivate the production of literary and artistic works of lasting benefits to the world’.
(Washington Co. v. Pearson, 1939) Thus, it is meant that copyright is the exclusive rights
granted by law to the creator of an original work to do, authorize or prohibit certain acts in
relation to such work.
The most remarkable fact is that copyright protection does not require any kind of registration
to be entitled to Intellectual Property (IP) protection. Rights of a copyright owner can be
basically divided into two phases; namely, economic rights and moral rights. Economic rights of
a copyright owner encapsulates certain rights which can be exploited by the owners and gain
economic advantages such as right to produce the work in various forms, public performance
rights, right to broadcasting the work via radio, cable or satellite, right to translate/adaptation
of work and right of distribution of that work. However, for the purpose of having a fair balance
between the exclusive rights of the copyright owners’ interests and the interests of the society,
these bundles of exclusive rights are limited to a specific period of time.
Where moral rights are concerned, these rights are independent from economic rights and can
be considered as paternity rights attributed to the particular creation. Thus, it is clear that the
economic rights coupled with moral rights grant an owner of copyrights an exclusive control
over his or her rights. However, as lucidly pointed out by many scholars, as well as in the Berne
Convention, ‘fair use’ exemptions and other limitations such as limitations on reproduction
rights etc. can be used to limit the authority of the copyright owners. When analyzing the Sri