Just before Carnival, a collective management society, The Trinidad and Tobago Copyright Collection Organisation (TTCO) that includes the National Carnival Development Foundation (NCDF) among its members released a statement warning photographers against posting “Carnival photos” on Facebook for fear that those photos would be exploited by a third party for potential profit through publication. This news was greeted with guffaws and concern by writers and readers on social media to the point that blog postings and memes were being generated to denigrate TTCO, and to persuade others that the organisation was ignorant of the law, greedy to commercial excess, and just downright boldface and out of place. In Trinidad, it probably was.
The intent of copyright legislation like other intellectual property laws is to give creators control of and the ability to profit from their new works. In a society that consistently breaks or handily ignores intellectual property laws possibly because the fear of getting caught is so low, copyright recognition has become an inconvenience. The growth and spread of vendors illegally plying their trade in pirated CDs and DVDs has created a willing market up and down the social ladder for the resulting low cost product. Public and certainly, official attitude to intellectual property will have to change. Whether it was the NCC trying to ignore Eddy Grant’s broadcasting rights in 1996 or CNMG CEO, Ken Ali trying to supersede NCBA’s broadcast rights in 2013, the story remains the same.
Adding to the confusion is the “the proliferation of several collective management societies … This has caused much confusion amongst the general public and stakeholders,” as stated by our Intellectual Property Office (IPO) in a country report to the British Copyright Council in 2011. Mediation with the World Intellectual Property Organization (WIPO) in settling this confusion had not begun as of the beginning of this year.
The drivers of our modern copyright legislation were musicians, authors, publishing and broadcasting houses, and protection of music was a main topic for stakeholders. Copyright infringement of local music continues despite the law, so legislation was not a cure all, and current weak enforcement and acknowledgement of the law’s inefficiencies and deficiencies by the IPO does not provide succour. The mas lobby may have gotten the term “work of mas” included in the law, but never enforced any claim, until now. The courts would have to make a precedent ruling if necessary.
The current copyright law, The Copyright Act, 1997 was created to replace an older 1985 Act, and with amendments in 2000 and 2008. The impetus for the 1997 legislation was to accede to a then new Agreement on Trade-Related Aspects on Intellectual Property Rights (TRIPS). A package of intellectual property laws were to be proclaimed with haste. Prime Minister Kamla Persad-Bissessar was Legal Affairs minister when consultations were being held with a Danish advisor. The wording of “work of mas” was coined by the Dane from the knowledge of local masmen.
Today, in 2013 that law is inadequate for our digital age as this brouhaha has shown. Although updated in 2008, I don’t see the word “digital” in the Act much less “online.” Control of your creation in a digital world is harder especially with outdated legislation. The Internet, it is noted, “does not distinguish between copyrightable and non-copyrightable content.” Facebook admits that they “are not in a position to adjudicate disputes between parties,” but will remove or disable access to that material.
Aside from the definition and attribution of a work of mas in the law, there is a lack of specificity in the law as to further details on copyright infringement with regards to works of mas as opposed to audio-visual works and literature. And, certainly, the law seems more interested in the knowing commercial exploitation without license than mundane reproduction on social media. A number of questions arise based on the foregoing:
- Can the TTCO make a claim of copyright infringement on behalf of NCDF? According to the law, yes, once TTCO shows material reproduction and knowing exploitation of the copyrighted material.
- Can a photograph of a costume be the same as material reproduction or simply, can duplicating a photo of a masquerader on the street be the same as duplicating a costume? I seek learned counsel. On social networks like Facebook and YouTube, simply sharing copyrighted material such as US and UK television shows has been met with removal of access to the works by the networks. There could be precedent.
- Can the TTCO come after Facebook photograph posters for infringement? Maybe they can, but it seems foolhardy. The archaic reporting regulations would tie up this organisation in tedium and minutiae. Going after the resulting derivative work publisher seems to be an easier task. Act No. 5 to amend the Copyright Act, 1997 clarifies “infringing copies” and suggests “communication to the public” to include the internet, however, critical to copyright infringement is knowingly exploiting those copies for commercial gain.
A part of the thrust by the government to establish creative industries as a growth pole is the suggested plan to get the stakeholder organizations to a point where they are “commercial vehicles and commercially attractive to the private sector.” Persons have equated playing mas in the street as carte blanche for taxpayers’ permitted use and allowable exploitation. Using that flawed logic, an entrepreneur could record a favourite steelband running through their winning piece on the drag before going on stage for Panorama and duplicate and distribute. You and I know someone would have to pay dearly for that infringement. Emory Cook came and recorded steelband on the streets in the 1950s. We are no closer to creating an industry of those legacy projects than before.
We continue to live in ignorance at our own peril. As an advocate for creative industry enhancement, this copyright issue between the TTCO and the media, photographers and now Facebook posters has shown, we also need wise legislators to create modern fair legislation that works for us, the citizens. Failing that, the world will continue to pass us by.
- An edited version of this piece was published in the Trinidad and Tobago Guardian Newspaper on Monday, February 25, 2013, A36.
© 2013, Nigel A. Campbell. All Rights Reserved.