ADDENDUM: Some more Copyright Confusion

wipo_logoResearching the history of the subject of the protection of works of mas by copyright for another article, I was pointed to an article in the Trinidad Guardian dated February 15, 2011 entitled “T&T mas designs to be protected by copyright” outlining the efforts of the Trinidad and Tobago Copyright Collection Organisation (TTCO), the local Intellectual Property Office (IPO), and the National Carnival Development Foundation (NCDF) to successfully pilot “to the World Intellectual Property Organization (WIPO) in Geneva to establish and accept the Works of Mas into the WIPO convention.” Further research in WIPO documents on that organisation’s website shows the progress of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which is “undertaking text-based negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection of [among other things] traditional cultural expressions (TCEs),” of which works of mas is included. This exercise began in 2000.

Since the instalment of the new government in 2010, there have been delegations representing TT to these meetings in Geneva, Switzerland including Regan M. Asgarali and Mazina Kadir, both of the IPO, and Justin Sobion, First Secretary at TT’s permanent mission in Geneva. Interestingly there was a thrust by these delegates to include the specific term ‘works of mas’ in the draft articles of the resulting document under “tangible expressions.” The delegations, in December 2010, negotiated thus:

  1. …It [the delegation] noted the particular importance of the protection of its indigenous carnival…It was aware of contentions to the effect that all the enumerated items would fall under the heading of “art or handicraft” or both, but “works of mas” would fall under neither, it could be gleaned from the definition of the term. “Works of mas” did not fall under the term “material expressions of art” as it was much more than that. They were to be protected as TCEs rather than under copyright. (My emphasis)

The delegation members further argued:

The definition of “works of mas” involved a combination of tangible manifestation, such as a physical costume, and intangible manifestation, such as a style of dance, a style of oratory, etc. It had to be seen as performative acts that comprised elements of tangible and intangible culture. So essential was the performance that they were inseparable and therefore any attempt to separate the two led to faulty policy articulation. Therefore, whatever solution was designed could not suit the situation to which it was applied. Works which received copyright protection usually were the product of the sweat of the brow of an individual; by contrast, with TCEs, the notion of author was absent. It restated that “works of mas” were more than physical items of costume and handicraft; they also included performance, elements of song, lyric, speech and dance, and were undeniable intangible things associated with a culture. In that context, the Delegation was of the view that “works of mas” had to be retained in the article.

Justin Sobion at Twenty-Second Session of IGC.  © WIPO 2012. Photo by Emmanuel Berrod.  All rights reserved by World Intellectual Property Organization (WIPO)
Justin Sobion at Twenty-Second Session of IGC. © WIPO 2012. Photo by Emmanuel Berrod. All rights reserved by World Intellectual Property Organization (WIPO)

In more recent talks in July 2012, “the [TT] Delegation indicated that works of mas in itself did not consist of tangible custom only but also included an intangible manifestation which accompanied that custom.” Our copyright law does not protect intangible manifestations or a “custom.” The local law was cited in the WIPO discussions, so one can assume that our laws still protect works of mas, while the larger global legal document, not concluded as yet, works towards a goal of global recognition and protection. The inclusion of the intangible in the definition of a work of mas at WIPO level may lead to a further amendment of the existing Copyright Act or the creation of a new law. I am unsure.

Of note in the most recent draft document of the IGC is that the definition of works of mas has moved from being a tangible expression to an expression by actions. This strategy seems in conflict with the original intent of our copyright legislation. Original work is protected as noted recently by Tene Reece, Deputy Controller at the IPO.

Ms. Reece in her opinion also suggests interestingly that “bikini-based costumes would not fall under [copyright] protection,” because it is not original! Chris Hamel-Smith on an online message board hosted by American University notes the following:

…the extent of ‘originality’ required to in fact attract protection, the threshold is (for good reason) low in most (if not all) jurisdictions, but particularly low in jurisdictions which apply traditional English common law precedent (as does T&T) where even pure or nearly pure “sweat of the brow” copyright has been recognised in some cases. Even disregarding the controversial “sweat of the brow” approach, however, it is hard to see how even those “works of mas” which consist mainly of bikinis with beads or feathers and which Ivor [Andrew Greene] describes as identical to those created year after year for over two decades by many different “designers” do not qualify for copyright protection, as they meet the admittedly low threshold of “originality”…from the view of the artistic critic (or mas critic) it may be legitimate to complain of the tired and “unoriginal” designs, but from the perspective of copyright law (certainly in T&T) the “originality” test is satisfied.

The confusion continues at all levels.

Where the law goes from here is anyone’s guess although one can assume that the Ministry of Legal Affairs has an agenda for intellectual property law in light of the government’s stated mission to use creative industries as a growth pole for the economy. Creative industries benefit from modern, fair and effective intellectual property laws. This conversation of originality, creative expression and compensation for exploitation of those expressions has only just begun in earnest as we transition from oil and gas to the inevitable knowledge-based economy.

© 2013, Nigel A. Campbell. All Rights Reserved.

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