Copyright protection for the dearly departed

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A year ago, while listening to music at UTT, I had an epiphany on the idea that Lionel Belasco (at right) who died 50 years ago then would have his work in the public domain, and the potential for that heritage and cultural capital to be in the hands of cultural entrepreneurs —local, but especially foreign — to exploit, to expand, to mimic, to monetize. Other jurisdictions have a 70 year postmortem protection for composers’ works. (Jamaica has 90 years, hooray for the Marley legacy!)

I shared my thought on social media (see above) among a cohort who understand the importance of intellectual property in the scheme of a creative economy. A few likes, one share and a couple comments, one being from the Deputy Controller at the Intellectual Property Office (IPO) who noted that “we [IPO] have heard you and others and [your] suggestion is receiving our consideration. You will of course be kept informed.” This was reinforced later in person by the Controller, Regan Asgarali.

Bureaucrats don’t make laws, members of parliament do, including the MP for St Ann’s West, Stuart Young, the Minister of Legal Affairs and line minister for the IPO. I can only assume a year later that the idea of extending the protection for local copyrights via amendment to the Copyright Act is ongoing at a parliamentary level.

However, in the interim, an important workshop/webinar was held at UTT earlier this year on “Copyright in the Digital Age” where, again, the idea of an extension of the protection period from 50 to 70 years was discussed. Controversially, one webinar participant uttered that because of the disparity in protection periods, for example, between T&T and the US (70 years) that there would be a continuing foreign exchange flight from this country as US-based copyrights would continue to be protected for an additional 20 years, and thus royalties would be due.

A couple commentators on my immediate Facebook post (see above) — showcasing the idea of disparate legal systems and my perception of the advantage that pertains, in a global sense, with the American system created by American lawmakers for Americans all over the  world — questioned the logic or veracity of that “foreign exchange flight” statement citing WIPO rules that balance the periods, optionally, towards the shorter protection period, thus eliminating any “upper hand” advantage. The challenge of “working” the existing system was superimposed over the fear-mongering of lax or inefficient legal systems by those commentators. My concern of a foreign interloper making a Rum & Coca Cola musical and taking it to the West End or Broadway or big screen should be tempered with the possibility that I could be that interloper! Sounds like a plan. Note the recorded “Golden Age” calypsonians who died prior to 1967, and whose calypsos are now in the public domain:

sam manning

  • Mighty Destroyer, died 1944,
  • Mighty Growler, died 1952,
  • Lord Executor, died 1952,
  • Mighty Spoiler, died 1960,
  • Sam Manning, died 1960, (resident in US so may still have protection. Photo at right.)
  • Lord Invader, died 1961,
  • Atilla The Hun, died 1962.
Three of these calypsonians’ work may be in the public domain having died more than 50 years ago. (l-r) Lord Invader, d. 1961; Mighty Growler, d. 1952; Attila The Hun, d. 1962. At right is Roaring Lion

Continuing with that recent Facebook post, which also outlines the upper court appeal case of Jay-Z and Timbaland et al versus the heirs of the late Egyptian composer Baligh Hamdi who had his song sampled for Jay-Z’s “Big Pimpin'” hit some years ago, one notes that the American judge in the lower court dismissed the case when she asserted that the heirs did not have standing to pursue the lawsuit: “…because this is America, a plaintiff may only pursue a claim in court based on infringement of economic rights, not moral rights.” The appeal is still ongoing and a conclusion is still to be heard. But if precedent is taken into consideration, the concept of reciprocity cited by the earlier commentators does not seem to hold. Like Egypt, Trinidad and Tobago has moral rights in its Copyright Act., and America doesn’t recognise them for music, yet!

aretha franklinUsing this “logic” it would seem that a song like “Respect” made famous by Aretha Franklin and composed by R&B legend Otis Redding would be ripe for the picking in T&T. You see, Redding died in a plane crash in 1967, (a macabre death image is seen here), and as such, although his copyright is secure for another 20 years, I am being challenged by local and regional commentators that local radio stations, for instance, won’t have to pay copyright royalties any more! Wow, I want a piece of that action! A local musical featuring Redding’s songs exclusively by him including “Respect”  could be exploited here. I fear, however, BMI would be knocking at my door, and our courts would be unprepared for the infringement case that would surely follow. (In 2016, we only just had the first copyright infringement case based on music in this jurisdiction with a 20-year old law!)

In our context, as the country pursues a creative economy expansion to supplant the recession in oil and gas, our laws should reflect the will of the electorate more than the dictates of bilateral agreements and multilateral combines that have proven to be outdated and disadvantageous to our progress. When parliament debated the Copyright (Amendment) Bill, 2008 that amended the Copyright Act, 1997 — “to facilitate Trinidad and Tobago’s accession to the World Intellectual Property Organization Copyright Treaty (WCT) and to the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT), and to strengthen the enforcement provisions of the Act.” — Independent Senator Dr. Jennifer Kernahan, in her contribution in the Senate, declared:

“We have brought these amendments to the Copyright (Amdt.) Bill, and we have to be straight up and frank with the national community. The 1997 Bill and the amendments in 2008 are not of our own volition. It is not something that we dreamt of or thought of. These Bills that are being brought to Parliament are based on international agreements that are imposed on developing countries, in the context of a globalized environment, where the rules regarding international trade and so forth are being set by the most powerful developed countries and the multinationals of these countries, because they are the ones who fuel and power these agreements, these trade agreements; and participation in international trade is now conditioned. Our participation in international trade is now conditioned on issues that are not related to trade at all, such as the issues of the environment, government procurement, labour and now intellectual property rights of which copyright is a part…” (p. 325)

This ain’t have nothing to do with us, and Dr. Kernahan made that clear; “We are forced to comply with these international agreements, because [there] are the international bodies like the WTO that set the rules… Actually, countries such as Korea, Brazil, Thailand, India and the Caribbean were defeated in the WTO negotiations on these issues of enforcing that inclusion of intellectual property rights into trade agreements and so on. So TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights) now is a compulsory requirement of WTO membership and access to international markets..” (Her contribution to the debate should be required reading to get a non-partisan objective analysis of what we wanted and what we got. pp.322-336).

What this sets up in 2018 is that we continue to toe the line on copyright protection, and its implications to things like local content quotas on broadcast media, which we must remember was rejected by the then government in 2004 in promulgating a national policy on Broadcast and the Broadcast industry, still in force, never updated.

“Much argument has taken place regarding a mandatory percentage for local content in the commercial broadcasting sector. The Government is of the view that it is contrary to both the Country’s Constitution and the tenets of free enterprise to legislate content for the broadcast industry. Besides, such a move could be counterproductive, since it could engender complacency and consequential mediocrity. Local output in all fields, including culture, must develop the resilience for the tough competitive environment of the modern world…”

Such arrant bullshit! Since before 1997 we had to do away with legislated quotas per MOUs, bilateral treaties with the US, and TRIPS Agreement. And in 2017, Maxie Cuffie admitted that the State media house CNMG was not commercially successful. So much for developing “the resilience for the tough competitive environment” by the biggest player in the local economy. (See Facebook post below.)

So at the end of it all, if you dead, hope and pray that your estate and heirs have “dual citizenship” because in Trinidad and Tobago, either the copyright law will give you a six for a nine, or we will all be still at square one trying to hang on to dollars and cents, while negotiating to belong to the global family. These are the steps we have to take to build the creative economy. We have to make a few double steps to keep up. Let’s start jumping!

© 2018, Nigel A. Campbell. All Rights Reserved.

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