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.

Justin Koo

King's Col­lege, Lon­don