As a law student currently pursuing a Master's in law specialising in comparative intel- lectual property law, I regularly scour local newspapers and the Internet for interesting articles related to copyright issues. When I came across Mark Lyndersay's article, "Artists contemplate copyright," published on January 31, it immediately raised some red flags in my head in relation to some of the issues raised. In my view, several of the issues discussed in the article are either completely incorrect or only tell part of the story. The article quoted Allison Demas as saying that "copyright law in Trinidad and Tobago has some unique characteristics." It is worthy to note that the overall T&T copyright regime is hybrid in that it combines elements of both traditional common law and civil law approaches to copyright law. Regardless, the examples that Demas gave to support her claims are rather suspect.
In particular what was highlighted includes the assertion that copyright vests with the creator upon creation, no requirement of fixation for copyright protection to subsist and a claim that T&T is the only country that protects "works of mas." It can be argued that none of the above examples justifies the conclusion that T&T's copyright law is unique. Generally speaking, when an authorial work is created the first owner is always the author (author used here as a general term for the person responsible for creating the work) subject to any employment contracts or other con- tractual agreements. Having said that there are instances where the creator may not be the first owner, as is the case with sound recordings and films. However, this is distinguishable as these are related or neighbouring rights adjacent to copyright. Therefore the suggestion that the author is the first owner under copyright is not unique. In fact, under the French droit d'auteur system (droit d'auteur or author's right is their equivalent of copyright), the author of a work can enjoy ownership even if it is produced under a contract for hire or service (Art L 111- 1 French Intellectual Property Code).
Similarly, the absence of a requirement of fixation for copyright to subsist in a work is not unique. In most civil law countries that adopt the droit d'auteur approach, there is no requirement of fixation. Moreover, under Art 2(2) of the Berne Convention 1971 there is no requirement of fixation. This has been incorporated into the TRIPS Agreement 1994 and WIPO Copyright Treaty 1996. As for the protection of "works of mas," it may be novel in terms of terminology, but to say that Trinidad is the only country that protects such works is slightly inaccurate. Under a number of copyright and/or droit d'auteur regimes that employ the open list system of protection (as opposed to the UK approach of specific subject matter), "works of mas" would indeed be protected. Although the UK may not use an open list and as such may not afford protection to "works of mas," the USA and France, just to give two examples, both have open lists in relation to copyright subject matter.
In the case of France, the Intellectual Property Code explicitly states that "creations of the seasonal industries and articles of fashion" are protectable subject matter. This can be seen as analogous subject matter, as "works of mas" can be interpreted as a creation of a seasonal industry (vis-a-vis the annual Carnival indus- try) giving impetus to the argument that protecting "works of mas" is not really novel other than the terminology itself. While I have highlighted the fact that the claims of uniqueness posed by Allison Demas may not be unique at all, there is one further point to note. It was said in the article that there is a requirement of registration in the UK for full protection of copyright works. This is absolutely wrong since no such requirement exists under the 1988 Copyright, Designs and Patent Act of the UK. Furthermore, had this requirement existed under UK law, it would have placed UK authors in a less favourable position than that of foreign authors within the UK. This is especially so since Art 5(2) of the Berne Convention 1971 prohibits the use of formalities as a prerequisite for the protection of foreign authors.
Be that as it may, there is a registration requirement in the USA but only for its own nationals. Notwithstanding my criticisms of the claims made by Demas, it must be said that I am in support of providing better copyright protection and raising awareness of copyright law in T&T. This is important because there is an apparent gap in knowledge-evidenced by the fact that the article itself stated that "the questions tended to be quite specific" and represents a general lack of understanding of the wider context of copyright law and its application not only in the art industry but in general. As a resident of T&T and secondly a law student, I am very concerned about the overall state of awareness in relation to copyright law among the general public. I do believe one of the best means of developing copyright protection in T&T is through raising public awareness, as was the intention of the reported panel discussion. However, this requires the dissemination of correct and well-informed information.
King's College, London