IPR in Tourism and Culture in Sri Lanka
Organized Tourism in Sri Lanka is five decades old and was the outcome of the Ceylon Tourism Board Act, 2016. A public authority was established through the legislation which was vested with the institutional and legal framework for rapid development of tourism in the country. Another act i.e., Ceylon Hotels Corporation Act, 1966, was enforced to ensure public and private sector participation in the tourism project.
Sri Lanka, also once known as the "Pearl of the Indian Ocean, is a country endowed with a glorious historical and cultural heritage that spreads through centuries. It is an island distinct from any other country, which is blessed with an abundance of natural beauty and attractions. In his works, Marco Polo also described Sri Lanka as "the best island of its size in all the world". The depth and diversity of its natural beauty, ranging from the blue ocean and the golden sands to the emerald green mountains and its fauna and flora have enthralled travellers. This legacy has made the country a prime destination. However, the country has not yet realized its full potential for strategic tourism promotion.
In a market-oriented, globalized world, IP is considered a tool for technological and economic development. Intellectual property rights (IPRs) protect the creative efforts of the human mind. It is therefore of paramount importance that the country explores novel means of economic development through the use of IP in tourism and cultural promotion. Moreover, the intersection of IP rights, tourism and culture has attracted a great deal of attention in recent years.
IP System in Sri Lanka
The IP system in Sri Lanka originated during the British colonial period. As from 1860, a number of British Acts were made applicable to Sri Lanka and such laws continued to apply even after Sri Lanka gained independence. However, after the introduction of the new economic policy, namely, the free market economy in 1977, the Sri Lankan Government introduced an IP regime, namely, the Code of Intellectual Property Act, No. 52 of 1979. The current Intellectual Property Act, No. 36 of 2003 (IP Act) replaced the Code of Intellectual Property Act in 2003. The Act was introduced to ensure compliance of the Sri Lankan IP regime with TRIPS obligations.
The IP Act accords protection to the main areas of IP rights recognized by the multilateral IP treaties; namely, copyright and related rights, inventions, industrial designs, trademarks, geographical indications, undisclosed information including trade secrets, protection against unfair competition and layout designs of integrated circuits, etc.
Existing and Potential Advantages of IP in Tourism and Culture
Inventions and creations are no doubt the drivers of national economic growth and development. Consequently, IP rights are increasingly becoming the bedrock of innovation and economic growth in the twenty-first century. The use of IP rights in tourism would generate powerful tools for boosting the competitiveness of tourism industry stakeholders.
In this regard, the main aspects of IP rights that can be used in the tourism sector include: trademarks, collective marks, certification marks, GIs, industrial designs, utility models, patents, copyrights and related rights, trade secrets and protection against unfair competition, commercialization and enforcement. Moreover, viewed through the lens of "prospect theory" securing an IP right for a tourism-related product or service enhances the prospects of commercial exploitation of the same in the competitive tourism market.
Invariably, branding is a tool used to market tourism-related products and services. It is something that resides in the mind of the consumer. A brand can be defined as "a name, term, sign, symbol, design or a combination of these, that identifies the products or services of one seller or group of sellers and differentiates them from those of competitors". Branding is the process of differentiating among the brands and competitors and therefore, the differing elements must be granted the requisite exclusive protection. When IP aspects are combined with branding, it is safe to conclude that the legally protectable aspects of a brand such as signs, names, words, logos, slogans and symbols and other characteristics can be legally protected by a trademark right under IP law.
In tourism, various branding strategies can be adopted that would result in the branding of countries, places/cities/destinations, and products (including services). There is a growing inclination among tourism authorities to brand countries in order to enhance their appeal to tourists.
Sri Lanka Tourism is currently gearing up for an aggressive promotional drive. In 2016, it identified the tourism branding plan as one of its main strategies. Sri Lanka has used several taglines such as "Paradise Island", "Land like no other" and currently, "Sri Lanka: Wonder of Asia" to brand itself. Accordingly, it needs to carefully choose and blend brand elements/brand identities in order to create a more appealing aura. A combination of different brand elements such as brand names, logos, symbols, characters, spokespeople, slogans, jingles, packages and signage can be explored. In terms of IP protection, country branding can earn trademark protection under the trademark provisions of the IP Act of Sri Lanka. Likewise, the same protection can be obtained in other jurisdictions of the world.
The increased mobility of people and businesses as well as the expansion of the tourism industry have contributed to the rise of place marketing. More interestingly, many cities, regions and countries are realizing the importance of differentiating themselves from the rest, thus creating a niche market and individual appeal that will translate into more tourist arrivals. The branding of tourist destinations and places would certainly add value to the national tourism industry.
Promotional materials, literature, guide books and leaflets used in the tourism industry could be protected by copyright, while traditional dances associated with cultural festivals such as the Kandy Esala Perahera could be protected by neighboring rights. The same may be true of traditional cultural performances of the Vedda indigenous community. Traditional knowledge-inspired innovation and traditional food recipes and processes could be protected by patents, designs and trade secrets. The industrial design regime could be leveraged to protect modern designs in the apparel industry, wood carvings and masks, gems, jewelry and a broad range of traditional handicrafts, including pottery, paintings, lacework, wood sculptures, cane work, bamboo work, handloom items and masks.
Experts have suggested places (tourist destinations) that can benefit from a branding process just like consumer goods or services. Although Sri Lanka is a top tourist destination, it has barely scratched the surface of its true potential for tourism promotion by reaping the fruits of the innovative and creative efforts of its people. It is therefore imperative that the country explores new means of economic development through the use of IP in tourism and culture.
Coa-Authored by Narsee Monjee Institute of Management Studies (NMIMS).
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