سري لانكا

This is an informal case summary prepared for the purposes of facilitating exchange during the 2024 WIPO IP Judges Forum.

Session 5

Supreme Court of Sri Lanka [2021]: Dharmapala v Officer-in-Charge, Colombo Special Crimes Division, SC Appeal No. 155/14

Date of judgment: June 28, 2021

Issuing authority: Supreme Court

Level of the issuing authority: Final Instance

Type of procedure: Judicial (Criminal)

Subject matter: Copyright and Related Rights (Neighboring Rights)

Plaintiff: Mananage Susil Dharmapala

Defendant: Officer-in-Charge, Colombo Special Crimes Division

Keywords: infringement, pirated copies, audio-visual works, evidence

Basic facts: The Officer-in-Charge, Colombo Special Crimes Division (Respondent) instituted criminal proceedings against Mananage Susil Dharmapala (Appellant) in the Magistrate’s Court of Maligakanda for unlawfully reproducing and distributing copies (CDs) of a music record titled “Galana Gangaki Jeewithe.” The record, which includes 15 songs, features the tracks ‘Yowun Wasanthe’ and ‘Onna Ekomath’, which were components of the films ‘Diyamanthi’ and ‘Saradiyelge Putha’, and which are owned by Professor Sunil Ariyaratne. The song "Onna Ekoomath Eka" was co-owned by the artist Mirihana Aarachchige Nanda Malini. This was considered an offense under Section 178(2) of the Intellectual Property Act, No.36 of 2003.

The Magistrate’s Cout found Dharmapala guilty of the charges under Section 178(2) of the Intellectual Property Act. In appeal, the High Court of the Western Province affirmed the conviction and dismissed the appeal. The Appellant requested a Special Leave to Appeal on the basis of the High Court erring in law since the prosecution did not provide evidence to prove the case beyond a reasonable doubt. The Supreme Court granted the request for Special Leave to Appeal.

Held: The Supreme Court held that the prosecution had proved beyond reasonable doubt the actus reus of the offense, namely that the Appellant had in his possession for sale a compact disk titled ‘Galana Gangaki Jeewithe’ which contained copies of songs ‘Yowun Wasanthe’ and ‘Onna Ekomath’ of which the copyrights were vested with Professor Sunil Ariyaratne and Visharadha Nanda Malini. Such copies had been made in infringement of the rights protected under Part II of the Act.

The Supreme Court also held that an irresistible and inescapable inference arises that the Appellant knew or certainly had reason to believe that the compact disk contained copies of the songs in question. Thus, the prosecution discharged its burden of proving beyond reasonable doubt that the Appellant entertained the required mens rea of the offense contained in section 178(2) of the Intellectual Property Act.

Relevant holdings in relation to Copyright: The Intellectual Property Act recognizes that any original intellectual creation in the literary, artistic, or scientific domain qualifies as a "work" and is protected by copyright law. Specifically, original songs and audio-visual works fall within this protection. The Act grants authors both economic rights, such as the exclusive right to reproduce and distribute their works, and moral rights, which ensure their names are prominently displayed on copies of the work, regardless of who holds the economic rights. These protections apply automatically upon the creation of the work, irrespective of the medium or purpose of the work. Exceptions to copyright protection, such as fair use, are narrowly defined and do not apply broadly to all forms of reproduction or distribution.

When a song is incorporated into an audio-visual work like a film, the film's producer generally gains the economic rights to the entire work, including the song. This means that the original creators, such as the lyricist and music composer, typically lose their economic rights unless otherwise agreed. However, they retain their moral rights to the original song. The unauthorized reproduction or distribution of such works, including songs and films, is prohibited under the IP Act, and any breach of these rights constitutes an offense. This includes making unauthorized copies, selling, or even possessing such pirated copies for trade purposes. The law prohibits these activities to protect the economic and moral rights of creators, ensuring that their works are not exploited without permission.

Relevant legislation:

·       Intellectual Property Act, No.36 of 2003

·       Code of Criminal Procedure Act