Wednesday, March 17, 2010

Caribbean Intellectual Property; The concept of Fair Usage

By Abiola Inniss LLB, LLM, ACIArb

At almost any time that the issue of Intellectual Property is discussed by peoples of the Caribbean there is considerable confusion and uncertainty to be found about what the law says, what it means and what the rights of usage are. This is not surprising or unexpected since many lawyers are themselves hard put upon to provide pertinent answers to the many arising issues.

This is not aided in the least by broad statements on intellectual property such as the definitions given by WIPO which are a general aid to understanding the subject area but which cannot deal with the variations in national laws and which do not explain that with any of the rights described, responsibilities also exist.

With the starkness of the non-existence of a regional policy on Intellectual Property and the absence in several countries of comprehensive, modern laws, the situation becomes an interesting mixture of self preservation, individual moral direction (or misdirection), opportunism, and even some attempts at the enforcement of individual concepts of justice in parallel existence with the other elements of the normal system of justice.

A panoramic view of the IP situation in the Caribbean would present to the observer, a carnival of Olympic size replete with politicians, diplomats, rights advocates, consumer groups, law enforcement, and impotent jurists, all gyrating discordantly to the WIPO band while Caribbean citizens look on, or are pulled or shoved in.

It is in such a scenario that the concept of fair usage must be adumbrated and placed within the context of the WIPO outlines on Intellectual Property. While such a topic would undoubtedly require at least a chapter or more for proper discussion, a useful outline can be provided here. The term fair use or fair dealing, where it exists in Intellectual Property Law is used to describe the defences under English law (Copyright Designs and Patents Act 1988) to alleged infringement of copyright or, if preferred, it describes permitted acts.

Dealing in this sense means that someone has made use of the work and not an implication of any arrangement between the parties. In fair dealing under the Act the following are permitted:
1. Fair dealing for the purpose of research or private study
2. Fair dealing for the purpose of research or criticism
3. Fair dealing for the purpose of reporting current events.

Under United States Law, the 1976 Copyright Act (17 USC, S 107) permits some copying and distribution without the permission of the copyright holder or payment to the holder. While the statute does not clearly define fair use it established four principles or factors which are described as non-exclusive and are intended to be used in analyzing whether fair use has occurred or not. These are as follows:
1. The purpose and character of the use;
2 The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

In many Commonwealth countries the notion of fair usage was developed through common law or legislation and is intended to allow intellectual and other development through the fair use of information. This is based on the idea that there can only be substantial innovation, change and progress where knowledge is shared freely for legitimate purposes of learning and criticism which then contribute significantly to the body of knowledge of a subject area. In Australia, however, the rule is absolute that permission must be granted by the copyright holder for any purpose whatsoever.

It is interesting that across the Caribbean there are varying degrees of the idea of fair usage in the protection of Copyright. Perhaps the most comprehensive piece of copyright legislation, which seeks to balance the interests of both the copyright holder and the end users, while promoting the idea described above, may be Jamaica’s Copyright Act of 1993 (Copyright Act 01/09/1993, No.4), which clearly outlines the idea of fair dealing described above and gives detailed factors for the courts to consider in analysing infringement. This act gives the end user a number of permissions to use works fairly and without fear, while giving significant protection to the holders.

The St Lucia Copyright Act (Copyright Act 06/09/1995, No.10) also provides a comprehensive guide to usage for different purposes making fair allowance for educational and other learning purposes and details the requirements of fair dealing.

The Copyright Act of Trinidad and Tobago follows the Jamaican and St Lucian Acts in its modern outlook but is stricter in permitting the usage of works and does not provide any guiding factors for the analysis of infringement, leaving this to judicial interpretation.

Barbados also allows some amount of fair use in its Copyright Act (Copyright and Related Rights Laws and Treaties Copyright Act, 1998) but is not as detailed as either Trinidad or Jamaica and restricts the use of copies by reprographic means even for educational purposes.

What is clear from this small sampling of the laws in the Caribbean, is that there is considerable recognition of the need to facilitate educational, intellectual and other development by fair use of intellectual property, it is also evident that within the context of the CSME, the variations in the laws will create significant difficulties for the ease of intra-regional business.

In a number of countries in the Caribbean modern laws do not exist, and this creates the wide variations in the rules of Intellectual Property. Guyana is a case in point as it is still governed by the United Kingdom Copyright Act of 1956, while the Copyright Bill of 2003 has not been enacted. This is significantly compounded by the lack of a Regional Arbitral Tribunal for Intellectual Property or Regional court of First Instance for Intellectual Property.

While the idea of fair usage may be an acceptable notion to the end users of works, it may not be as appealing to the producers of works and that will have to be rectified by a balancing of the rights and responsibilities. A regional approach that promotes the idea of fair usage and explains the law will go a long way to creating the cordial nexus between the end users and holders of copyright.

CARICOM must assume its responsibilities in creating the regional policy for Intellectual Property and the region wide promotion of the rights and responsibilities in Caribbean Intellectual Property.