The month of September began with a bang as Trinidadian violinist and performer, Shiva Chaitoo aka “Milli Violini” was accused of passing off an instrumentally-synchronised performance of American violinist and YouTube sensation, Rhett Price, as his own. Chaitoo claims that the video that started this episode was not one of a professional compensated gig: “It wasn’t a hustle. It was just me having my instrument at a bar, and deciding to have fun. And I ended up playing over the track in the yard.”
Despite apologies and assurances that “there would be no repeats of this,” the implications of this sham goes beyond simple “fun” and points to a continuing lack of understanding and respect by the public and music professionals of intellectual property rights including neighbouring rights. Neighbouring rights in Trinidad and Tobago — the rights of performers, broadcasters and producers of sound recordings — have a history of confusion and perplexity, official disregard and a grasp of the economic exploitation that is behind-the-curve. Among local collective managements organisations (CMOs), the Trinidad and Tobago Copyright Collection Organisation (TTCO) established in 2000 by Dr. Vijay Ramlal Rai is recognized by the Intellectual Property Office of the Ministry of Legal Affairs (IPO) as the agency that has responsibility for neighbouring rights in the music industry. But recently, music consultant Fabien Alfonso exploded on Facebook to sound the death knell to the TTCO.
Alfonso, a popular music business advocate and “lobbyist for appropriate Music Industry and IP rights structure in Trinidad and Tobago,” according to his Facebook page, was contracted by TTCO to consult with the organisation on neighbouring rights management as it prepared to work towards building credibility in the local music industry. Despite one or two successes in the past — infamously the controversial right to issue exclusive music licenses for Carnival fetes over the objection of longstanding CMO and rightful designee, Copyright Music Organisation of Trinidad and Tobago (COTT) — TTCO has been bogged down by disastrous interfaces with music promoters and the NCC, and lacked the kind of transparency necessary for the successful management of a CMO. Member lists and repertoires were kept secret, fete closure threats were a frequent tactic at Carnival time, and a defiant CEO, Richard Cornwall — now former CEO having resigned at the end of July — on many occasions defended these actions for many years without any legal precedent to back up his claims.
Alfonso may have been somewhat successful during his tenure since there were no fete closure threats in 2017, and the member lists were now online moving towards a global standard for CMOs called the TAG Compendium. The TAG Compendium is “a WIPO initiative which is intended to be an international voluntary instrument of certification of best practice for CMOs. It is projected to assist CMOs on how to improve and adopt transparency, accountability and governance practices for the benefit of all stakeholders.” The breaking point for Alfonso, however, was the continuing governance deficits. He says, “no AGM has been called for years, there are skewed bye-laws, an unconstitutional board and elections were never held.” Alfonso tendered his resignation after a hectic eight month contract as he lacked confidence that governance methods would improve, as he highlights in his Facebook post.
I spoke to the two other parties in this fiasco, Cornwall and Ramlal Rai, who went on the record to refute and also concur with some of Alfonso’s statements of organisational misgovernance. Both men made claims and counter-claims that suggest that all is not well in TTCO, and that Alfonso’s allegations may have merit. Although Ramlal Rai said he did not have direct dealing with Alfonso, both men also acknowledged Alfonso’s acumen and advice allowed the organisation to achieve TAG compliance as a hallmark of pioneering achievement among T&T CMOs. As noted above, the TAG Project is voluntary, and notably, COTT follows CISAC guidelines for governance and accountability, not WIPO-based TAG. (CISAC – the International Confederation of Societies of Authors and Composers – is the world’s leading network of authors’ societies. WIPO — the World Intellectual Property Organization — is the global forum for intellectual property services, policy, information and cooperation.)
Ramlal Rai acknowledges that there were no elections held, but counters that the bye-laws allow for sitting directors to replace departing directors until the next AGM. He also admits that there has been no AGM for years. A new board, however, was formed after Carnival with attorney Annabelle Davis as new president. The parting of ways between Cornwall and TTCO was said to be a catalyst for Alfonso’s decision to ultimately not renew his consultant contract and depart at the end of July. Ramlal Rai also notes that non-payment of money may have been a catalyst for Alfonso’s abrupt departure. Alfonso acknowledged that he was not paid for the final part of his contract.
Cornwall’s departure was shrouded in the aura of conflicting reports of accountability failures and money mismanagement. Ramlal Rai was dismissive of Cornwall’s administrative skills as he referred to the high percentage of administrative costs deducted from members’ royalties. Cornwall notes that he was responsible for moving TTCO to TAG compliance without assistance from “head office.” There also seems to be a slavish acceptance of suggestions disguised as rules under the TAG Compendium that has clouded the common sense approach to mitigate the confusion that was the governance of TTCO.
What becomes clear from all this cross-talk is the continued atmosphere of “mild chaos and unregulation” that continues to affect this important arm of the creative industries in Trinidad and Tobago. Despite millions of dollars spent by the government over a number of ministries to create that enabling environment necessary for a smooth transition to a profitable creative industries sector, there is this tumult in the sector where relationships are still being negotiated, people are now overcoming decades old systems in an ever-changing and rapidly evolving music scene, and enablers and stakeholders are still reticent to get involved beyond time-worn prescriptions that may have passed their expiration date. (It is noted too that COTT has terminated two CEOs in the space of twelve months since August 2016 highlighting the pervasiveness of the tumult.) All the free consultations and workshops provided by IPO and MusicTT over the past few years must have fallen on barren ground when these important intermediaries in the commercialisation of the music sector are still at ground zero.
In this matter of CMOs, and specifically the nascent neighbouring rights and royalties commercial sector, the IPO has a role to play. The IPO is the “local government agency responsible for handling the registration and conflict resolution of intellectual property rights.” From the IPO’s website, we read:
…the IPO has no statutory responsibility for copyright and related rights. However, the Minister with responsibility for intellectual property may charge the Office with certain responsibilities relative to copyright and related rights and has been doing so over the years.
Of course, the IPO says it is not an agency that regulates CMOs. Since 2011, the IPO has attempted to assist in supporting voluntary mediation among all CMOs to allow for clarity and reduce consumer confusion. Critically, in all this, the IPO officers can advise the Minister of Legal Affairs to change their function to allow for clearer regulation. We saw in the CL Financial implosion and bailout, that the regulator, the Central, Bank was aware of deficiencies within the group and companies under its ambit, but had “no teeth.” After the fact, the government amended the law to give more bite to the regulator to better protect citizens. So in this case, the IPO can advise before this episode takes a turn for the worse.
Of course, the details of this may not affect many people, but activities are happening to clear the way in some form to ease the commercial exploitation of neighbouring rights. (See box below.)
These latest trials and tribulations of the TTCO, and the dismissive attitude of musicians and audiences to rights and ownership of intellectual property, like Shiva Chaitoo’s, point to the continuing work that must be done to make that dream of an enabling environment a reality. Stakeholder and enabler apathy should not be tolerated or encouraged. The policy decision to diversify the economy away from oil and gas started in the late 1990s. In 2017, from top to bottom, from creator to consumer, enabler and intermediary, are all still running wild hoping that one or two musical nuggets land miraculously and opportunistically to make the boast of a local music industry that has global influence. “Fix yourself first” should be an adage that drives the development of the music industry. We deserve better.
© 2017, Nigel A. Campbell. All Rights Reserved.