The Illicit Trade in Music: a response

The Trinidad and Tobago Manufacturers’ Association (TTMA) has an ongoing campaign against the illicit trade of goods. TTMA president Franka Costelloe “cited illicitly trading businesses for operating below the tax radar and thereby reducing competitiveness, limiting employment opportunities and failing to contribute to the economy where they are earning and making profits. ‘It is the citizens of Trinidad and Tobago who are the main victims in all this,’ she said, ‘as those tax dollars are needed for critical services such as health and education programmes.’”

As part of the campaign of educating the public on the illicit trade in goods, I was approached to discuss the illicit trade of music. We know of the years long campaigns on bootleg CDs and DVDs, which became a norm with roadside vendors selling copies of movies and music, the majority if not all without license.

A questionnaire was prepared for responses, which worked towards a press release on the subject, published in the Trinidad and Tobago Guardian and the Trinidad Express. My complete responses are below.


Music piracy and the illicit trade of music
  1. In your opinion, what is meant by “illicit trade” in music?  
    Illicit trade in music is the knowing exploitation of another person’s musical creation; whether via reproduction and duplication for bootleg sale, unauthorized sampling for a new musical work or distribution or unlicensed use in an environment where money will be exchanged, for example, in broadcast, in advertising, in Carnival. Unauthorized public performance anywhere without a license.
  2. It seems like it is a global pervasive issue, especially with the advent in digital music. How prevalent is it in Trinidad and Tobago? 
    A major issue with the T&T music industry is the lack of cogent data on many aspects of the industry, so that conclusions are based on anecdotal evidence and estimates based on comparable economies. That said, the digital transformation of the industry has taken it from a maker of things for sale (CDs, LPs, cassettes) to a licensor of copies for public access (streaming, broadcast).

    The live music industry has not been plagued by illicit trade, however, but the recorded industry sees unauthorized access to music via VPN (virtual private networks) to work around the limited availability of access to geo-fenced major subscriber streaming platforms like Spotify and Tidal. Bootlegging of some rare CDs and DVDs continues in rural areas where legal options for sale are limited, and enforcement seemingly non-existent. Attitudes that pander to the notion that “poor people” should not bear the financial burden of an entrepreneur are too pervasive: “if he rich, he don’t need my money!”

    Competition from cable TV and subscription services like Netflix has softened the market for physical media, but there is a pervasive and underground willful public performance of copyrighted material at unlicensed events. The problems with local collective management organisations (CMO) will be dealt with elsewhere in this questionnaire. 
  3. What are some forms of music piracy and copyright infringement? 
    For many years, the illegal duplication of CDs and mainly DVDs of music and film for sale in stores and on the street was pervasive. With the move towards a digital environment, the exploitation of non-Trinidadian music work in this market continues via services and agencies that skirt the law with an understanding that due to the low enforcement rate, the chances of being caught is next to nil. The convoluted and expensive legal process to redress also does not help.

    Examples of infringements are unlicensed synchronization of music for audio-visual material. Advertisers have been caught having to post facto sign license agreements. Ripping audio from YouTube or other online services to distribute widely, again without license, is also surprisingly pervasive, despite the fact that most people have cellphones that can play music. The relative shallow data penetration allows for some to transfer music to others, without recompense, outside the data divide.

    As noted before, many popular streaming services are not available locally, but people can use workarounds to access music. Although many services offer free ad-supported plans, the lack of official recognition of the T&T market puts any workaround in contravention of international licenses. These contraventions are monitored by the US Trade Representative, for example in its Special 301 Report.
  4. Could you explain how the music industry is adversely affected by piracy and copyright infringement?
    As noted earlier, copyright infringement has moved from bootlegging CDs to unauthorized use of sound recordings via illegal streaming or broadcast distribution, unlicensed public performance and unlicensed synchronization to video on YouTube and other audio-visual media.

    The adverb “adversely” is relative in this sense since the value of the music industry in T&T has swung wildly according to sources. An Entertainment Industry Survey conducted by the Ministry of Trade and Industry that was published by the Music and Entertainment Industry Team of the Standing Committee on Business Development in 2006 valued the industry’s contribution to the T&T economy at TT$169M. WIPO estimated the industry’s value based on domestic and regional market trends and evolution at $43M in 2007 and in 2011 using the value added at constant prices set it at $49M. Sound Diplomacy of the UK, in drafting a strategic plan for the music industry for 2017-2022, estimated the 2016 total industry revenue at TT$76M.

    Digital revenue from streaming royalties are in micro-cents, and has suppressed revenue from recorded music. A number of local artists don’t even sell their music anymore, preferring to freely put their music on YouTube or email directly to radio stations and taste-makers in the hope that live performance opportunities arise. The economic impact of piracy and infringement has not been logged, unfortunately, but some artists can attest to a major drop in their broadcast royalty income and what ever sales figures remain.

    The seemingly lax attitude to music with it short shelf life exacerbated by the Carnival seasonality, is not helped by the inefficiencies apparent in the management of the local CMOs. The draft strategic plan for the music industry notes: “The current small size of the domestic market challenges the existence of 3 competing collecting societies from an endurance perspective. Stakeholders demand a collective voice for the CMOs of Trinidad and Tobago that allow standardised rates, reciprocal agreements with international organisations, and a streamlined music licensing process for artists and promoters.

    All said, the piracy situation exists in an environment that appears ad hoc to other industry observers, and possibly Ministry of Trade officials too. The space for illicit trade does not exist in a shop or over the counter anymore, but within the corridors of official broadcast media houses. There is evidence in the past of official reluctance to honour broadcasting rights agreements that would accrue royalties to publishers and neighbouring rights holders. In 1996, the NCC were taken to court to prevent the broadcast of Carnival that year for choosing not to honour a contract with rights holder Eddy Grant.

    The excuse of “poverty” was used by the NCC, which “said they didn’t have the money to pay my publisher’s share of the monies that were owed for the use of [Grant’s] copyrights.” The further claim that the “NCC claimed that they were not making money from the international broadcasting of Carnival events,” adds to an attitude of the devaluation of music in T&T.

    CNMG in 2013 had to be stopped by the NCBA from streaming Carnival via its internet portal as the contract did not include streaming. The battle for rights holders’ enforcement of those rights has seen a precedence where simple chauvinism looks to supersede contractual obligations. That is not a milieu for the business of music. The music business in 2020 is about contracts, and those obligations have been met with resistance to support rights protected by law.
  5. Do you believe there is sufficient copyright laws in Trinidad and Tobago to prevent the illegal use of music (in all forms)? 
    There are enough laws. T&T hurriedly acceded to the demand to update its Intellectual property laws including the Copyright Act, “well in advance of the deadline required by the World Trade Organization.” Our Copyright Act was passed in 1997, and amended three times — 2000, 2008 and 2020 — to give effect to obligatory WIPO treaties including TRIPS. The laws have not been used enough due to its convoluted remedies, the nature of local creators NOT willing to engage in legal battles, and possibly due to the non-recognition of the value of their IP in relation to the larger economic demands on the artists’ pocket. 

    The amount of laws is not the problem, it is the lack of enforcement. The USTR Special 301 Report for 2020 states, in relation to T&T: “Moreover, the United States remains concerned about the lack of enforcement action against companies in Trinidad & Tobago violating the agreement, particularly the two state-owned telecommunications networks that broadcast unlicensed U.S. content. Other concerns include optical disc music and video piracy and nonpayment of copyright royalties, as well as online piracy…” Further, T&T has never used the WTO trade dispute mechanism to settle any claims. We are at a disadvantage internationally, and locally, we are stymied by too many regulations.
  6. Music piracy is enormous and growing, however, the criminal sanctions for breach of copyright and trademark legislation bear little relation to the extent and nature of the criminality involved and are of minimal deterrent value. Do you agree with this statement, and what can be done to restrict this illegal trade from happening? 
    There is some merit to the statement. The laws are not the problem, it is the enforcement of those laws. The illicit trade of tangible things can be an easier situation to monitor, The illicit trade in intellectual property, especially copyright, is a little harder to monitor. A reconfiguration of the industry to align the demands of creators with the wishes of the consumer is a large task in the relatively unstructured industry. Despite over 100 years of music business in T&T, the attitudes that follow the recognition of a music industry as an important cog in the economy have to become the new normal, from both the public and private sector.

    Local illicit trade is “encouraged” when consumers believe they are being gypped. High taxes on imported goods, high penalties for infringement relative to perceived value don’t work to encourage compliance. Demands to government to create the enabling environment for fair trade of music with effective remedies is the task ahead.
  7. On the issue of intellectual property, how can artistes continue to protect themselves? 
    The current business relationships with the local CMOs seems tarnished for many, and the exploration of alternative revenue streams outside of broadcast and public performance royalties should be a buffer towards the declining fortunes of regular royalty streams in a changing environment, and one now beset by COVID-19 which has all but killed the live music industry from a mass audience perspective.

    A new focus towards ownership of podcasting and streaming rights would be a better business decision than to wait for the authorities to get their act together. As a new way forward in an entrenched ecosystem locally, insistence of mandatory registration of copyrights should be a forward thinking action. Part of the continual problem, I believe, is the recognition by creators of the effort to prove ownership of a musical creation that is not “logged in a document.” The registration would ease procedures for remedy of infringement. (See Q.11.)
  8. Is there a greater need for collaboration amongst artistes and performers who are affected by piracy and copyright infringement? 
    YES. I can’t say this enough. The major “flaw” with the creative stakeholder is the lack of an industry advocacy collective, like a Chamber of Commerce. Organisations like TUCO, PanTrinbago or even COTT with 4,000 members, do not act as effective interlocutors with government, which has shown askance recognition of the value of the music industry, as noted by the under-resourcing and low investment of the state-owned company, MusicTT.
  9. What can the Government/Police Service do to help curb piracy and copyright infringement? 
    Do their job! The law already prescribes remedies. Stakeholders have identified deficiencies in the law as it affects LOCAL producers. The judiciary also has a role to play. Training in IP law determination and cases to be decided should be ongoing. The paucity of both is more a reflection of the systems in place than the laws on the books.
  10. At what time of the year do you estimate piracy is more prevalent? Does this happen frequently during Carnival time, or throughout out the year? 
    Music creators make original music throughout the year. At Carnival time, the majority of new music is created, and exploited, legally and otherwise. However, license breaches can happen throughout the year.
  11. Is there anything else you would like to add? 
    Our law recognises copyright on creation. Unlike the US, we do not register the copyright for it to become real. The task of registering allows for smoother and easier recognition if courts are to be used to determine ownership issues. Despite having a Copyright Act since 1997, in the year 2015 was the first time “the invocation of the Court’s jurisdiction to determine an issue of intellectual property protection” was used. 18 years to use the law, and the claimant lost! In a small country like ours, precedence creates a lasting impact. The case was filed on April 2015 and the verdict delivered on January 2017 by Justice Frank Seepersad. That span of time is money down the drain. An economic benefit can not be gained while in limbo for years. A possible new IP mediation mechanism may be a possibility going forward. 

    Public education of copyright misuse should be mandatory in the education system from primary level upward. Decades of bad behaviour buying bootlegged CDs and DVDs has to be reversed. The society’s attitude towards littering or wearing masks properly during the pandemic is a guide to the difficulty ahead.

    Much reporting on the T&T music industry focuses on our infringement of foreign music copyrights and neighbouring rights. But this illicit trade works both ways. There has been evidence of Panamanian singers taking our soca tunes wholesale and recording and performing them, in Spanish to a new market, with no reciprocal agreement signed. Non-licensing of foreign venues have robbed our artists of public performance rights royalties. Our laws must work for us, not  to only satisfy WIPO minimum standards.

    As noted before, our acquiescence to WIPO demands does not work to our benefit. Trade in music in a borderless digital world must be accompanied by adherence to agreements. Our posture as obsequious and compliant within the WTO trade dispute mechanism — we have never used it to settle a dispute — provides us no benefits. The limited scope of our local courts in working our laws to provide precedence puts the industry at a disadvantage against manufacturers, for example. The Ministry of Trade and Industry, which is responsible for the music industry growth and development, has dropped the baton with its limited implementation of a strategic plan that had input from stakeholders, under-funding of the implementing agencies, and limited focus towards building an indigenous industry from which exportable services and products can fairly benefit from trade agreements. 

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