By Abiola Inniss LLB,LLM,ACIarb
It is hardly debatable that the variations in copyright laws across the Caribbean are the result of the peculiarities of our various jurisdictions compounded by the lack of a regional regulatory scheme. It is also trite knowledge that Caribbean musicians often struggle to obtain adequate protection of their productions and where they do, it is localized within specific countries. This means that while a Jamaican musician may have protected rights in Jamaica, this will not necessarily apply to the same work in Guyana or Antigua, and so on; though section 3 of the Jamaican Copyright Act no 5 of 1993 ,specifies that where a work has been first published in a specified country it shall be an offence in Jamaica to republish it without permission. A January 2010 report of the International Confederation of Societies of Authors and Composers (CISAC) revealed that royalties accruing to Caribbean music and Art in 2009 had dipped by 27 percent to Euros 3.3 million. CISAC reported that it had been some three years since such a marked decline had occurred in the Caribbean and suggested that apart from the worldwide economic decline; the inability of some Caribbean governments to deal with their Intellectual Property issues had contributed significantly to these problems. Trinidad and Tobago, Jamaica, Cuba, the Dominican Republic, Barbados and St. Lucia are members of CISAC which is an international organization promoting the rights of authors and composers while others are less than interested.
While CISAC may be a useful organization, it is striking that Caribbean nationals have yet to establish a region wide focus group which will serve to examine and promote the rights of producers of intellectual Property and press Caricom into the establishment of a region wide regulation scheme.
This column has previously proposed and continues to insist that the Caribbean Court of Justice be given jurisdiction as a Court of First instance for Intellectual Property matters; a development which would see greater enforcement of copyright laws and a thrust towards the modernization of others. The regional jurisprudence in this area would also have a significant catalyst for its advancement with the offshoot of specialization and developing expertise among intellectuals, jurists and practitioners.
Caribbean musicians are faced with the dilemma of the artist’s urgency of creative expression, the need for just recompense and the assurance that their work will be recognized and respected. These aspirations are often compounded by lack of enforcement or outmoded laws, or both in some jurisdictions. While modern copyright laws where they exist , go some way towards protecting copyright as in the case of Jamaica, there is the view (supported by some evidence ) that the copyright laws afford the producers greater rights than the creative minds who originated the music. This was an argument presented at a discussion forum entitled ‘Talking Copyright: Reflecting On A 300 Year History & The Music Industry’, held at the University of Westminster in London on June 15, 2010. At this forum several practitioners and law teachers expressed the view that the copyright laws of England were crafted in favour of the producers of music and so made it difficult for the actual artist to earn a decent living. It was argued that rights are shifted from the artist to the producing company and so the business practice and the structure of the laws must be crafted to balance the interests and create a fair regime for both producers and artists. An examination of the laws (both of England and some Caribbean countries) reveals that this is not because the law by itself gives preference to producers but more the case that it is silent on the issue of licensing to producers. While it may make provision for licensing to be given freely by the holder of copyright ,it does not restrict the business practice which sees producers requiring licensing be handed to them in totality in exchange for producing and marketing the works. Authors are often handed royalties which are a small fraction of the profit made by the producers. There are also contractual issues attached to licensing which are often disadvantageous to the author, such as the termination clauses which may be drafted in favour of the producer, leaving the author in limbo. While freedom of licensing is certainly to be maintained, there needs to be some recognition by the law which protects authors from unscrupulous business practices in the same manner as the law concerning unfair contractual clauses, but of course, aimed at dealing with unfair licensing practices. This is because one may not successfully argue that a contract term which requires that licensing be given to a producer who will pick up the tab for production and marketing and then hand the author proceeds from it, is unfair. How much of the proceeds is actually given to the artist is a question of economics and cannot be easily or perhaps even fairly regulated by legislation, as prevailing circumstances at the time of production and sale will be the major consideration.
The Caribbean musician is faced with the serious and more immediate problem of losing significant amounts of revenue from the sale of pirated CD’s and DVD’s. The musician is then persuaded to make recordings in territories such as Jamaica, Trinidad, Barbados and St Lucia where the laws are relatively modern and in some instances regularly enforced. The problem is that there is not always reciprocity in the laws of other countries and so there may not be prosecution for the reproduction of CDs published elsewhere. Of course where IP legislation and issues are not a priority artists suffer greatest.
The issues though complex are not without the possibility of devising a better means of coexistence between authors and consumers and the laws, and it need not take forever. Caribbean artists need to organize themselves quickly at the regional level and following the example of CISAC , establish a body which will propose the needed solutions to Caricom. It is up to the region’s artists to make their voices heard resoundingly. There is yet conciliation for the unsavory relationship.