While the premise governing copyright is simple—“I made this. Therefore, I own it.

”—and most of us are

well acquainted with the “©” symbol that claims its existence, few are equally aware of the technicalities
that shape its operation.

In Sri Lanka, copyright is part of a larger system of intellectual property law governed by statute—for those
of you who are wondering, that’s just a fancy way of saying that there’s an Act of Parliament in place to
tell us what goes and what doesn’t.

The Intellectual Property Act, No. 36 of 2003, as a quick read through will tell you, does a good job at
laying out the ins and outs of copyright, but we’re here to spare you the act of trudging through page after
page of legalese. Soon you’ll see that there’s more to copyright than just slapping on a “©” symbol on
your work and sending it off into the big, bad world.

The Intellectual Property Act, No. 36 of 2003, is the primary enactment governing copyright law
in Sri Lanka. Image credit: Roar/Minaali Haputantri

What Gives Rise To Copyright Protection?

Unlike most intellectual property rights, copyright arises independent of a registration process. In fact,
Section 6 (2) of the 2003 Act explicitly states that any qualifying work will be protected “by the sole fact
of [its] creation”.
But what makes a qualifying work?

The answer to that question—at least according to Sri Lankan intellectual property law—is a simple one.

A work will be protected by copyright if it:

Falls into one of the categories of works eligible for copyright protection,
and
Fulfills the originality requirement.
Let’s examine each of these elements in turn.

Works Eligible For Copyright Protection

According to Section 6 of the 2003 Act, Sri Lankan copyright law protects “original intellectual creations
in the literary, artistic and scientific domains”.

It then goes on to provide several examples of such creations, including books, speeches, dramatic works,
musical works, audiovisual works, architectural works, drawings, photographs, works of applied art, and
even expressions of folklore.

But this list is not exhaustive, and any other work that could be deemed a literary, artistic, or scientific
work could, potentially, be eligible for copyright protection.

Section 8 of the Act, in contrast, lists out the types of works that are excluded from copyright protection.
These include—among other things—mere ideas, principles, discoveries, data, and news, as well as any
official legislative, administrative, or legal texts and translations.

The Originality Requirement

An eligible work, in order to merit copyright protection, must also be original—but not in the usual sense
of the word. Originality in copyright law means simply that the work must originate from the author or,
put another way, be the result of minimal skill, labour, and judgment on his or her part.

It follows, then, that the work in question need not be particularly groundbreaking. This is made clear in
Section 6 (2) of the Act, which states that works will be afforded protection “irrespective of their mode or
form of expression, as well as of their content, quality and purpose.”

So as long as your work isn’t copied, it probably qualifies for copyright protection.

There have, exceptionally, been situations where copies of existing works have managed to secure their
own copyright protection, but this can occur only where the copied work is still original in the legal sense
of the word – an artist who makes a copy of a famous painting but expends a sufficient amount of skill,
labour, and judgment in doing so, for example, is likely to still receive copyright protection of his work.
Similarly, Section 7 (1) of the 2003 Act provides that derivative works—such as translations, adaptations,
modifications, and collections of existing works and data—are also eligible to be protected by copyright,
subject, of course, to the originality requirement.

This leaves open the possibility of a work that infringes upon the copyright of an already existing work
going on to receive its own copyright protection.

Copyright exists in three broad categories of works, including literary

works. Image credit: Roar/Minaali Haputantri
How Does Copyright Operate?
Copyright gives rise to a bundle of rights, which—at least at first—belong exclusively to the copyright
owner. These rights take two forms: economic rights and moral rights.

Economic Rights
Economic rights, found in Section 9 (1) of the Act, refer to a series of acts that only the owner of those
rights may carry out, or authorise to be carried out. Among these are the rights to reproduce, translate,
adapt, distribute, rent, import, display, perform, broadcast and communicate the work.

The first ownership of economic rights depends largely on the nature of the authorship.

In cases of individual and joint authorship, the economic rights will belong to the creators of the work.

The economic rights to a collective work—which is a work contributed to by two or more physical persons
at the initiative of another person or legal entity—will, on the other hand, belong to that person or entity.

So where several poets contribute their poems to an anthology, the economic rights to the individual
poems will remain with the respective poets, while the economic rights to the anthology as a whole will
belong to the person who put it together.

On the other hand, the economic rights to works created by employees or under commission will, except
in situations where the parties have agreed otherwise, belong to the employer or the person who
commissioned the work.

Economic rights are, however, assignable, which means that their owner can choose to license them out
or even transfer them outright.

Moral Rights
Moral rights—found in Section 10 (1) of the Act—operate independent of economic rights and always
belong to the creator of the work. Among these are the right to be attributed as its creator, the right to
use a pseudonym, and the right to object to “any distortion, mutilation or other modification of, or other
derogatory action in relation to, his work which would be prejudicial to his honour or reputation.”
Unlike economic rights, moral rights cannot be transferred and will remain under the ownership of the
author until his or her death. Upon the author’s death, his successor in title will receive the moral rights
for a period of seventy years.

Among the economic rights to a work is the right to make copies of it. Image credit: Roar/Minaali
Haputantri

What Are The Limits On Copyright Protection?

Copyright protection, despite being extensive, is not unlimited, and intellectual property law in Sri Lanka
has several mechanisms in place to restrict its operation where necessary.

In particular, copyright is not infringed where:

The period of copyright protection has expired, or

The use of a copyright work by a third party is deemed “fair”.
Let’s examine each of these situations in more detail.

Duration of Copyright Protection

Copyright protection is usually limited to the author’s lifetime and seventy years after.

However, there are certain situations in which the periods of validity differ.
According to Section 13, a work of joint authorship is protected for the lifetime of the last surviving author
and 70 years after, while a collective work will be protected for seventy years following the date of first
publication or, in the absence of publication, seventy years following its completion.

Audiovisual works too will be afforded protection for seventy years following the date of its being
published or, in the absence of such an event, seventy years following its completion.

A work published anonymously or under a pseudonym will be afforded copyright protection for seventy
years following the date of first publication.

Works of applied art will be given copyright protection for twenty-five years following their creation.

The “Fair Use” Exception

Section 11 (1) of the Act provides that “fair use” of a work will not amount to infringement of the copyright
that subsists in it.

Thus, use of a work for purposes such as criticism, comment, news reporting, teaching, scholarship, or
research shall not amount to infringement.

While the phrase “fair use” has not been defined within the act, its scope depends largely on the facts and
circumstances of each case, and is, in particular, influenced by the factors laid down in Section 11 (2)—
namely the purpose and character of the use (whether it is commercial or non-profit, for example), the
nature of the copyright work, the amount and substantiality of the portion used in relation to the
copyright work as a whole, and the effect of the use upon the potential market for or value of the
copyright work.
Use of a work for educational purposes could, if deemed fair, circumvent liability for copyright
infringement. Image credit: Roar/Minaali Haputantri
If you’re still with us—and kudos to you if you are—you would have realised that there’s much more to
the law of copyright in Sri Lanka than an author, a creative work, and a symbol.

Copyright, a means of protecting not only a creator’s rights to their work, but also their integrity, is one
of the most accessible intellectual property rights, and now that you’re well versed in its technicalities,
there’s just one thing left to do—get creating