Copyright and the Music Industry in Trinidad and Tobago

COPYRIGHT AND THE MUSIC INDUSTRY IN TRINIDAD AND TOBAGO

Presented by:Shiveta SooknananLegal Officer IIIntellectual Property Office

OUTLINE Copyright and Neighbouring Rights Exclusive rights of the copyright owner Individual management of rights Collective management

Models of collective management: Traditional CMO, One-stop-shop, Rights Clearance Centre

CMOs in the Caribbean CMOs Legislation/Regulations Licensing Formats/Royalties Copyright infringement Issues faced by the music industry in Trinidad and Tobago Proposed solutions

IP refers to expressed creations of the mind

World Intellectual Property Organization (WIPO)

WHAT IS COPYRIGHT?

Copyright- protection for original literary, dramatic, musical, artistic works

WHAT IS THE GOVERNING LEGISLATION IN

TRINIDAD AND TOBAGO?

o Copyright Act, Chap 82:80 and Copyright Regulations

You may view the Copyright Act online

at: - http://www.legalaffairs.gov.tt

WHAT CAN BE PROTECTED BY

COPYRIGHT?

Copyright is vested in the following works (Section 5(1) CA):

(a) Books, pamphlets, articles, computer

programs and other writings;

(b) Speeches, lectures, addresses, sermons and other works of the

same nature;

(c) Dramatic works, dramatico-musical works, pantomimes, choreographic works and other works created for stage productions;

Copyright is vested in the following works (Section 5(1) CA):

(d) Stage productions of works mentioned in paragraph (c); (e) Musical works, with or without

accompanying words; (f) Audiovisual works; (g) Works of architecture; (h) Works of drawing, painting, sculpture, engraving, lithography, tapestry and

other works of fine art; (i) Photographic works;

Copyright is vested in the following works (Section 5(1) CA):

(j) Works of applied art;

(k) Illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

WHAT CANNOT BE PROTECTED BY

COPYRIGHT?

Section 7(1) CA:o Any idea, procedure, system, method

of operation, concept, principle, discovery or mere data (basic facts e.g.. Name, D.O.B.)

o Any official text of a legislative, administrative or legal nature (Laws of any country) as well as any official translation

Political speeches and speeches delivered in the course of legal proceedings

However, collections of texts or speeches are protected by copyright if the collections are original by reason of the selection, co-ordination or arrangement of their contents (e.g. Encyclopedia)

HOW LONG IS THE TERM OF PROTECTION FOR A

COPYRIGHTABLE WORK?

The general rule is life of the author plus 50 years

For works of joint ownership, the period of protection is life of the last surviving author plus 50 years after his death

For collective works (created by 2 or more persons) and audiovisual works (eg. film), the period of protection is 75 years from the date on which the work was first published

HOW TO PROTECT YOUR COPYRIGHT?

oUnder the Berne Convention for the Protection of Literary and Artistic Works, copyright protection is automatic, so long as it is fixed

oNo registration requirement

Ways to assert copyright protection:

Copyright legend © COPYRIGHT OWNER, 2016. All rights

reserved. No part of this TYPE OF WORK (manual, book etc) may be reproduced, or stored in a retrieval system without the prior permission of the copyright owner

Poor man’s copyright

Statutory Declaration

WHAT ARE THE RIGHTS OF A COPYRIGHT

OWNER?

Economic Rights:

o Economic rights are the commercial rights of the copyright owner

o The copyright owner has the exclusive right to do, authorise or prohibit the: -

(a) Reproduction; (b) Translation; (c) Adaptation, arrangement or other transformation of his work;

(d) Distribution; (e) Importation of his work; (f) Public display of the original or a

copy of his work; (g) Public performance; (h) Broadcasting; (i) Communication to the public of his work.

CARD Rights

Moral rights:

• Right to be named as author/creator• Right to not have work distorted• Retained after work expired • Can be waived in writing

Leonardo da Vinci

NEIGHBOURING RIGHTS

o Neighbouring rights are property rights that subsist in: Performances Sound Recordings and Broadcasts

Rights of Performers

• Performers own their performances• Exclusive rights to do, authorise or

prohibit:• The broadcasting to the public of their

performance • The right of reproduction• The right of distribution• The right of rental to the public of a

fixation of his performance or copies thereof

• The right of making available to the public of his fixed performance

Rights of Producers of Sound Recordings

• Producers of sound recordings have the right to do, authorise or prohibit: Direct or indirect reproduction of sound

recording in any manner or form Importation of copies of sound recording Adaptation or other transformation of the

sound recording Rental of original or copy of the sound

recording Making available of the sound recording to

the public

Broadcasting

Rights of Broadcasting Organisations

Broadcasting organisations have the right todo, authorise or prohibit:

The rebroadcasting of its broadcast; The communication to the public of its

broadcast; The fixation of its broadcast; The reproduction of a fixation of its

broadcast.

HOW CAN COPYRIGHT OWNERS BENEFIT FROM USE OF THEIR WORK(S)?

Copyright owners can obtain royalties that are generated by the licensing/assigning of their exclusive rights in their works

Licence – grants permission to use of the copyrightable work, subject to terms and conditions, and the licensor retains ownership of the work

Assignment – a transfer of ownership of the work

HOW CAN A COPYRIGHT OWNER OBTAIN

ROYALTIES?

Individual rights managementCollective management

Traditional CMOsOne-stop-shopsRights clearance centres

INDIVIDUAL RIGHTS MANAGEMENT

Problems with Individual Management of Rights

• Impractical for both the copyright owner and user

• Difficult for a copyright owner to contact every single radio or television station to negotiate licences and remuneration for the use of his works

• It is not practical for a broadcasting organization to seek specific permission from every author for the use of every copyrighted work

COLLECTIVE MANAGEMENT

WHAT IS COLLECTIVE MANAGEMENT?

Collective management is the exercise of copyright and related rights by organisations acting in the interest and on behalf of the owners of rights.

Source: World Intellectual Property Organization (WIPO)

WHAT IS A COLLECTIVE MANAGEMENT

ORGANISATION (CMO)?

Organisations that act on behalf of their members, negotiate rates and terms of use with users, issue licences authorizing uses, collect and distribute royalties.

Source: World Intellectual Property Organization

A CMO is appointed by the copyright owner (via an agreement) to: Licence the use of the rights they

manage; Monitor that use in order to enforce the

conditions upon which the licence has been granted; and

Collect and distribute the royalties payable as a result of the licensed use.

Source: The Role of Collective Management Organisations, CISAC

WHAT ARE THE BENEFITS OF USING A CMO?

Individual management of rights is difficult

Collective management of rights through a CMO achieves efficiencies in administration and licensing

Collective administration of rights beneficial where there is a need to manage the interaction of many copyright owners, a variety of authors’ rights/ copyright users and many instances of use requiring a licence

Source: The History of Collective Management, CISAC

MODELS OF COLLECTIVE MANAGEMENT

The models of collective management of rights include:

Traditional CMOs One-stop-shops Rights clearance centres

Traditional CMOs

Act on behalf of their members, negotiate rates and terms of use with users, issue licences authorizing uses, collect and distribute royalties

Traditional CMOsCMOs most commonly take care of the following rights:

The right of public performance (music played or performed in discotheques, restaurants, and other public places);The right of broadcasting (live and recorded performances on radio and television);The mechanical reproduction rights in musical works (the reproduction of works in CDs, tapes, vinyl records, cassettes, mini-discs, or other forms of recordings);The performing rights in dramatic works (theater plays);The right of reprographic reproduction of literary and musical works (photocopying);Related rights (the rights of performers and producers of phonograms to obtain remuneration for broadcasting or the communication to the public of phonograms).

One-stop-shops

• "One-stop-shops" are a coalition of separate CMOs which offer users a centralized source where authorizations can be easily and quickly obtained

UNITED KINGDOM

THE COPYRIGHT LICENSING AGENCY-UK

• Established in 1983, owned by the Author’s Licensing and Collecting Society Ltd. (ALCS) and the Publishers’ Licensing Society Ltd. (PLS) to issue licences to copy and re-use published works, this includes authors, publishers, visual artists

• A CLA licence is the only way to get blanket clearance that enables you (within limits) to copy what you want, when you want, rather than having to obtain permission from the copyright owners each time

Rights clearance centres

• Rights clearance centres grant licences to users that reflect the conditions for the use of works and the remuneration terms are set by each individual holder of rights who is a member of the centre

• Here, the centre acts as an agent for the owner of the rights who remains directly involved in setting the terms of use of his works

RIGHTS CLEARANCE CENTRE MODEL

COPYRIGHT CLEARANCE CENTRE

• The CCC is a US company which provides collective copyright licensing services for corporate and academic users of copyrighted materials. CCC procures agreements with rights holders, primarily academic publishers

• CCC acts as their agent in arranging collective licensing for institutions and one-time licensing for document delivery services, course packs, and other access and uses of texts

CMOs IN THE CARIBBEAN

CMOs in Trinidad and Tobago

Multiple society system:

1 for reprographic rights: Trinidad and Tobago Reprographic Rights Organisation

(TTRRO)

3 CMOs for musical works: Copyright Music Organisation of Trinidad and Tobago

(COTT) Trinidad and Tobago Copyright Collection Organisation

(TTCCO) Awesome Intel

Media Releases IPO has and continues to issue several media

newsletters to inform the public about issues regarding licenses and CMOs.

The public is advised that in light of the fact that there are three (3) CMOs with respect to musical works, permission must be obtained from the respective organisation that is appointed by the owners of these works to administer the licensing of rights, collection of royalties and reinforcement of rights on their behalf.

CMOs in Jamaica Single society system (1 CMO for the licensing of each type

of copyrightable work):

Jamaica Association of Composers, Authors and Publishers (JACAP); Manages performing and mechanical (reproduction) rights in

musical works

Jamaican Copyright Licensing Agency (JAMCOPY); and Manages the reproduction rights of creators of image and text-

based works (writers, poets, journalists etc.) and publishers

Jamaica Music Society (JAMMS) Manages performance rights on behalf of sound recording

copyright owners

CMOs in other Caribbean Countries

OECS – Eastern Caribbean Collective Organisation (ECCO) Manages writers and publishers of music

Barbados – Copyright Society of Composers Authors and Publishers (COSCAP) Manages performances, broadcasts and reproduction of

rights

CMOs AND LEGISLATION/REGULATIONS

CMOs in Trinidad and Tobago CMOs in TT are largely non-profit organizations

which are incorporated under the Companies Act, Chap 81:01

There is no legislative requirement for Government approval and supervision

CMOs in Trinidad and Tobago

Copyright Act, Chap 82: 80: Section 49 defines “licensing body” Section 52 – where there is a dispute with

licensing bodies regarding the refusal of the grant of a licence or the terms and conditions of the licence, the matter can be referred to Court

Section 53 – right of appeal to the Court of Appeal

Copyright Music Organisation of Trinidad and Tobago (COTT) v Columbus Communications Trinidad Limited (FLOW)(2011)

• COTT claimed copyright infringement by FLOW on the grounds that FLOW broadcasted and/or transmitted and/or authorized the transmission and/or re-transmission to its subscribers via its cable television programmes musical works in COTT’s repertoire without getting a licence

• COTT sought an injunction to restrain FLOW from broadcasting and damages for copyright infringement

Copyright Music Organisation of Trinidad and Tobago (COTT) v Columbus Communications Trinidad Limited (FLOW)(2011)

• High Court held that:• COTT is the exclusive licensee of the musical

works • As an exclusive licensee COTT is empowered

to institute an action of infringement of its rights to musical works, rights granted to it under reciprocal agreements

• Awarded damages for copyright infringement

CMOs in Jamaica

Currently, there is a proposal to regulate CMOs via the adoption of Regulations which is to be taken to Parliament, the Jamaican Copyright (Amendment) Act, 2015

CMOs in Jamaica

Some of the proposed key provisions include: A society or organization that intends to carry on

operations as a licensing body must apply to the Executive Director (of the JIPO) for a certification of registration and submit a fee

The Executive Director cannot register more than one licensing body at the same time to carry on operations in respect of the same class of rights

The Executive Director retains the right to grant, refuse, suspend or revoke a certificate of registration that has been issued

• Application for registration as a CMO• Grant and renewal of registration as a CMO• Refusal/suspension and revocation of

registration• Royalties• Record Keeping• Accounts and audits

Basic Provisions in Regulations:

LICENSING FORMATS AND ROYALTIES

LICENSING FORMATS

• Public Performance LicenceA licence granting the right to perform the work in, or

transmit the work to the public

• Mechanical LicenceA licence granting the right to reproduce the musical

composition in CDs, tapes, vinyl records, cassettes, mini-discs, or other forms of recordings

• Synchronization LicenceMusic Publisher issues a licence granting the right to

synchronize the musical composition in timed relation with audio-visual images on film or videotape eg. Use of music in TV and films

•Broadcasting and onlineA licence granting the licensee permission to use a portion of the radio frequency spectrum in a given geographical area for broadcasting purposes

•Master Use Licence An agreement by which the copyright owner of a sound recording (usually, the record company) grants permission to someone else to use the sound recording in a visual work

Blanket licence

A general licence covering the repertoire of a CMO

The Mechanical-Copyright Protection Society (“MCPS”) grants blanket licenses to music users in the UK for all works in MCPS Repertoire

Excludes: unauthorised arrangements, parodies, derogatory treatments, first licenses and dramitco-musical works without prior approval from publisher

MUSIC IN ADVERTISING AND FILM

COMMERICAL ADVERTISINGThe Advertiser must obtain a licence to use the

copyrighted work

A synchronization licence from the publisher is required

Permission to use the song and the fee are at the discretion of the copyright owners, so an artist/publisher earns whatever he can negotiate for the use of his music in the advertisement

TV AND FILM

A synchronization licence is required to use copyrighted material in TV and FilmsThe synchronization licence grants the authority to

reproduce a musical composition only

A master-use licence would be required to use a Master Recording. In order to use a track in full, the master licence is needed along with the synchronization licence

A mechanical license would be required if the song appears on the soundtrack album of the film

ROYALTIES

How are Royalties determined by a CMO?

Nigerian Regulations – CMO must take into consideration: monetary advantage obtained from exploitation; value of the copyright material; the purpose for which and the context in which the copyright material is used; the manner or kind of use of the copyright material; the proportion of the utilization of a work in the context of exploitation; any relevant Court decision

EU Directive - Article 16(2) states that “Licensing terms shall be based on objective and non-discriminatory criteria”

BCC Codes of Conduct – CMO must explain the frequency of distribution and explain what information will be provided in individual royalty statements to members (eg. the source of royalties and the period to which the royalty relates); deductions for administration

Licensing Approach of PRS for Music (UK)

Balancing the needs of their members with the needs of music users

Tariffs and policies need to be relevant and practical

Formal consultation and notification process 41 tariffs

Source: PRS for Music

41 Public Performance Tariffs

Source: PRS for Music

41 Public Performance Tariffs

Source: PRS for Music

Tariff Objectives of PRS for Music

1. Revenue generating 2. Relevant 3. Cost-effective 4. Current and future proof 5. Clear and simple 6. Aligned 7. Consistent 8. Promote the use of PRS music 9. Agreed 10. Strategic 11. Fair and reasonable 12. Verifiable

Source: PRS for Music

Sector 2009£million

2008£million

%

Pubs and Clubs 37.6 39.7 -5.3%

Live 22.3 21.5 3.7%

Hotels and restaurants

18.5 18.0 2.8%

Shops 17.8 17.3 2.9%

Workplaces 15.0 12.8 17.2%

Cinemas 6.4 6.3 1.6%

Other 32.6 31.0 5.2%

TOTAL 150.2 146.6 2.5%

Public Performance Income

Source: PRS for Music

COPYRIGHT INFRINGEMENT

o Copyright infringement arises when a person exercises any of the copyright owner’s rights, for which, the copyright owner’s permission is required

o Some common examples of acts that constitute infringement include:o Photocopying books for sale or distribution;o Plagiarism;

• Reprinting a text book without the permission of the copyright owner;

• Making a work available on the Internet or Intranet without the copyright owner’s permission if such use is not covered by the terms of the licence;

• Publicly performing a play without the writer’s permission;

• Playing music in a public place without a copyright licence

Public Performance

What is a public performance?

• In simple terms- whenever music is played outside the ‘domestic sphere’, this is a public performance and permission from the rights holder is normally required.

• Includes performances by any means: live, recorded music, music from TV and radio.

Source: PRS for Music

• Public performance

• Jennings v Stephens [1936] Ch 469, [1936] 1 All ER 409, CA – public performance is where the work is performed in the presence of persons who are not part of the ‘domestic or quasi-domestic circle’

• Music played in a private members club found to be in the public

Remedies for infringement• Penalties • Injunctions• Seizure, forfeiture and destruction of all

infringing copies

WHAT ARE THE ISSUES FACED BY THE MUSIC INDUSTRY IN TRINIDAD AND TOBAGO?

• Piracy/digital piracy• Increased IP education and awareness• Greater enforcement of the law• Greater co-operation amongst

stakeholders• Clarification by local CMOs as to the

rights they represent and the adoption of principles of transparency, accountability and governance (TAG) in their operations

• Increased licensing opportunities

PIRACY AND COUNTERFEIT

Piracy v Counterfeit

Pirated – copyright violation

Counterfeit – industrial property violation – trademarks, patents, industrial designs

Imports of counterfeit and pirated goods are worth nearly half a trillion dollars (USD) a year, or around 2.5% of global imports, with US, Italian and French brands the hardest hit and many of the proceeds going to organised crime.

Fake products crop up in everything from handbags and perfumes to machine parts and chemicals. Footwear is the most-copied item though trademarks are infringed even on strawberries and bananas. Counterfeiting also produces knockoffs that endanger lives – auto parts that fail, pharmaceuticals that make people sick, toys that harm children, baby formula that provides no nourishment and medical instruments that deliver false readings.

Source: Organisation of Economic Co-Operation and Development (2016)

• Global music piracy causes $12.5 billion of economic losses every year, 71,060 U.S. jobs lost, a loss of $2.7 billion in workers’ earnings, and a loss of $422 million in tax revenues, $291 million in personal income tax and $131 million in lost corporate income and production taxes• The Recording Industry Association of

America (RIAA) 2014

Piracy and Enforcement of IPRs

Piracy is a major problem

Local artists face a tremendous loss of legitimate revenue

Problem is not legislative Section 8 and 41 of the Copyright Act Chap 82:80

prohibits piracy; sale or rental of CDs/DVDs is illegal

Piracy prohibited in the Customs Act Chap 78:01

Piracy and Enforcement of IPRs Challenges:

Lack of enforcement by Police and Customs Treated as “soft crime” Lack of money, resources Lack of education/public awareness Failure of copyright holders to enforce their rights

Section 48 of the Copyright Act requires that a Notice must be filed with Customs requesting that the goods be treated as prohibited and must not be imported into the country before Customs can seize any goods

Prosecution of criminals is difficult Face the challenge of copyright owners not being

present in Court to give evidence (Warner Bros., Universal etc)

LICENSING

Available services iTunes (except video) Amazon Prime Music Amazon Kindle Books Amazon Prime Video (Amazon originals only) Audible Rdio Deezer TuneIn Youtube (standard except where geographically

restricted by content owner) Netflix

Non-available services iTunes movies Spotify Pandora Tidal Hulu YouTube Red (premium subscription service) Xbox Video PlayStation Video Amazon Prime Video (Titles not owned by Amazon)

SOLUTIONS

IP education and training

Recognition that piracy is part of organized crimes, money laundering, human trafficking etc.

Exploring licensing agreements with Spotify,

Apple, Netflix

Replacing Piracy with Partnership

“In Paris my partner started out in the music business in my kitchen – launching a website called blogmusik.net. He soon received letters from bodies representing rights holders saying the service was illegal and must be shut down. He did that and then I sat down with him and the rights holders to work out a way forward.”- Jonathon Benassaya, CEO of Deezer

The result was Deezer, a licensed and legal website that

users can access anywhere using a browser.

“If you take one per cent of all radio advertising and display advertising revenue and you put it into the digital music market then you have the equivalent of 16-20 per cent of the UK digital music market.”

- Daniel Ek, CEO of Spotify

Spotify today offers registered users free access to more than 6.5 million tracks to stream.

Spot and Identify

Anti-piracy Campaign- IPO

Co-operation with the USPTO IP Attaché

Round table discussions with stakeholders eg. Bureau of Standards, Customs, Police

Exploring strategies used by other jurisdictions to combat online piracy

Notice and take down provisions Increased responsibility on ISPs (Digital

Millennium Act (USA), Digital Economy Act (UK)

Solutions

Working with local CMOs for the adoption of a voluntary MOU/Code of Conduct to clarify the representation of rights and to adhere to international standards of best practices as outlined in the WIPO TAG Compendium

WIPO TAG Compendium

The Compendium is a WIPO initiative which is intended to be an international voluntary instrument of certification of best practice for CMOs

The Compendium includes guidelines in areas such as the primary functions and role of the CMO; providing information for the public; membership: information, adherence and withdrawal; member’s rights and obligations

WIPO TAG Compendium The IPO has been encouraging local CMOs to

incorporate the TAG Compendium into their by-laws as this will hopefully serve to improve the administration of CMOs in Trinidad and Tobago, potentially reduce confusion in the market place

On May 25, 2016, Trinidad and Tobago hosted the first Caribbean Regional Consultation on the World Intellectual Property Organization (WIPO) Transparency, Accountability and Governance (TAG) Compendium

Address: 3rd Floor, Capital Plaza, 11-13 Frederick Street, Port of Spain.

Email: info@ipo.gov.ttPhone: 625-1907; 627-0706

www.ipo.gov.tt