Copyright Law

Context & Course Progression

• Previous face-to-face session covered a broad Introduction to Intellectual Property (IP).
• Lecturer decided not to revisit unfinished PowerPoint slides; they will be shared for independent reading so time can be spent on major topics.
• Road-map of upcoming classes
  • Copyright (current and next 1–2 lectures) — this lecturer
  • Patent law — Prof. Sampath Kunakheewa
  • International IP & Geographical Indications — Prof. Nazima Kamardeen
  • Trademarks — specialist lecturers
• Encouragement to maintain the same level of classroom interaction in the online setting.

Position of Copyright in IP System

• Traditional split
  • "Copyright" (literary & artistic creations)
  • "Industrial Property" (patents, trademarks, industrial designs, etc.)
• Historical perception: copyright viewed as non-industrial and primarily reputational/self-satisfying rather than economic.
  • Early authors (e.g., temple monks) wrote for piety or knowledge sharing.
  • Shift after printing press → mass reproduction → economic stakes.
• Modern reality: copyright products (books, films, software, games, music) involve huge investments and significant ROI; uncontrolled copying erodes returns.

Justifications for Copyright Protection

• Incentive / Encouragement Theory
  • Exclusive rights stimulate authors to create "useful & beautiful" works.
• Reward Theory
  • State honours the author’s unique intellectual contribution with a temporary monopoly.
• Economic Theory
  • Works are economic assets; protection prevents market failure and supports R&D, creativity industries, GDP growth.
• Unjust Enrichment Argument
  • Prevents third parties from exploiting works without bearing the creation cost.

International Framework & Harmonisation

• Paris Convention — industrial property (patent, TM, design).
• Berne Convention — literary & artistic works; introduces automatic protection principle.
• WTO–TRIPS Agreement (1994/95)
  • Sets minimum standards; WTO members must incorporate into domestic law.
  • Example (patents): must recognise
    $\text{Novelty},\ \text{Inventive\ Step},\ \text{Industrial\ Applicability}$
• Harmonisation ensures foreign right-holders feel safe trading/licensing across borders.

Key Terminology & Concepts

1. "Works" Protected

• Literary: books, articles, computer programs (source & object code), subtitles.
• Artistic: drawings, paintings, sculptures, photographs, applied art.
• Musical: compositions with/without lyrics.
• Audiovisual / Cinematographic: films, TV dramas, music videos.
• Dramatic: plays, choreography, mime.

2. Tangible vs. Intangible

• Copyright subsists in the intangible expression, not the physical object.
  • Buying a book ≠ buying the right to copy its contents.

3. Fixation

• Work captured in a tangible medium (recording, writing, notation).
• Not compulsory under Berne; Sri Lanka does not require fixation for subsistence, but fixation greatly eases proof.
• USA: registration/fixation needed before filing an infringement suit.

4. Automatic Protection

• No registration needed in most Berne/SL cases (contrast: patents, TMs).
• Some countries provide optional registries (e.g., India) to facilitate evidence.

5. Idea–Expression Dichotomy

• Ideas, concepts, facts, procedures, news are public domain.
• Protection covers only the original expression.
  • Example: “Elephant” theme → each artist’s drawing is protectable; the animal idea is free.
  • Court illustration: Kenrick v Lawrence (tick on ballot paper—the only feasible way to depict was unprotectable).

6. Adaptation & Translation

• Translation right: shift to another language.
• Adaptation right: shift to another medium (novel → film).
• Both are exclusive economic rights of the author unless contractually transferred.

7. Duration & Public Domain

• TRIPS minimum: $\text{Life of Author} + 50\ \text{years}$
• Sri Lanka: $\text{Life of Author} + 70\ \text{years}$ (literary, artistic, musical).
• After expiry, work enters public domain; anyone may exploit unless new protectable originality is added.

Requirements for Copyright Protection in Sri Lanka

• Section 6(1) IP Act
  → “Original intellectual creations.”
• Originality test (from University of London Press 1916):
  • Work must originate from the author and not be copied.
  • Does not require novelty/uniqueness (unlike patents).
  • Effort/labour alone insufficient (sweat of brow rejected); must show independent skill & judgment.

Human Involvement

• Creation must reflect human skill, labour, judgment.
• Three common scenarios
  1. Author’s full creativity (novel, painting).
  2. Compilations: originality from selection/arrangement (e.g., law-report digest, database).
  3. Works driven by capital/organisation (film producer case).

Independent Creation Principle

• Two authors may create identical or near-identical works independently; each holds copyright.
• Patent law, by contrast, awards monopoly to the first filer.

Economic Rights vs. Moral Rights

• Economic rights (reproduce, distribute, perform, adapt, translate, communicate to public).
• Moral rights (paternity, integrity, against distortion).
  • Example: Using “Harry Potter” characters in a distorted sequel could breach J.K. Rowling’s moral right of integrity even after economic term lapses.

Balancing Access & Monopoly

• Core policy tension:
  • Owner’s desire for pay-per-use control vs. Public’s interest in affordable knowledge.
• Copyright law embeds limitations & exceptions (fair dealing, education, libraries) to strike equilibrium.

Ownership & Authorship Scenarios

1. Employment / Commissioned Works

• Default: employer/commissioner becomes owner, employee is still author (unless contract says otherwise).
• Film industry example
  • Producer generally first owner (financing/organisation).
  • Director may gain joint ownership only if contractually agreed or recognised by statute (UK offers such recognition; Sri Lanka largely producer-centric).

2. Joint Authorship

• Possible when contributions are inseparable & collaborative.
• Emerging AI practice: Indian case Raghav (2021) accepted joint authorship between developer and AI system output for a painting.

3. Non-Human Creators

• Monkey selfie: US court held no copyright because author must be human.
• Similar principle in Sri Lanka (no personality → no rights).
• Ongoing debate for fully autonomous AI creations.

Fixation & Evidence – Classroom Example

• Lecturer delivers speech live (unfixed) → copyright subsists but proof problematic.
• If student records audio/video or produces verbatim shorthand with lecturer’s consent, fixation exists → lecturer retains copyright.
• If student paraphrases concepts into own notes = new copyright in student’s expression.
• Direct word-for-word transcription without licence = infringement.

Data vs. Database Protection

• Raw data → unprotectable facts.
• Database → protectable if arrangement shows author’s skill/selection/judgment (UK CDPA & SL practice).
• Library catalogues, phone books: borderline; must show more than mechanical effort.

Case Law Highlights

Director’s Cut & Commissioned Works Debate

• “Director’s cut” generally falls within the scope of employment; absent contract to contrary, producer remains owner.
• If contract grants director creative control & co-ownership, joint copyright arises.

Edge Cases & Discussion Points Raised in Class

• Can same book title be reused?
  • Generally permissible (de minimis), unless TM or passing-off involved.
• Academic copying of expired © works
  • Copying $\ge 95\%$ verbatim → derivative lacks originality; cannot claim new copyright; third parties free to copy.
• Library as database? Depends on extent of curatorial skill.
• Unjust enrichment & public morals (e.g., sex-trafficking exposé → film profits) — ethical layer beyond strict law.

Formulae & Key Numbers

• Term of protection (literary/artistic):
  $T = \text{Life}<em>{Author} + 70\ \text{years (Sri Lanka)}$$T</em>{\text{TRIPS minimum}} = \text{Life}_{Author} + 50$
• Patentability (TRIPS Art 27):
  $\text{Requirements} = {\text{Novelty},\ \text{Inventive\ Step},\ \text{Industrial\ Applicability}}$

Practical Take-Aways for Students

• Always distinguish idea (free) from expression (protected).
• Fix your work (manuscript, recording) and keep evidence of date/authorship.
• Understand contractual settings (employment, commission) before creation begins.
• Registration optional but helpful (India, USA).
• Respect moral rights even when economic term expires.
• When using public-domain works, add your own originality; mere verbatim copying grants no new rights.

Reading & Preparation for Next Session

1. Supreme Court judgment: Dharma Sri Samaranayake v Sarasavi Publishers — analyse whether court correctly applied originality & unjust-enrichment principles.
2. Case: Mahanama v Austin Publishers (Sri Lanka) — revisit compilation originality.
3. Reflect on AI authorship cases, notably Indian Raghav painting registration.

Bring questions on AI, fixation, director–producer contracts, and moral rights for discussion in the next lecture.