Making mas with copyright

Dr Emir Crowne

Carnival contributes immensely to our local economy. Some estimates put the annual revenue at $2 billion, and quite frankly that figure is low. The plain truth of the matter is that Carnival is not properly monetized. In turn, our artistes and the cultural/creative sectors as a whole are robbed of the fruits of their collective labour.

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Copyright is essential to the proper monetisation and incentivisation of Carnival. Copyright protects original literary, dramatic, musical and artistic works. It also protects broadcasts and transmissions of works derived from such literary, dramatic, musical and artistic works.

Authors and other creators of works can either license those works directly (to radio stations, fetes and the like), or entrust that function to a collective management organisation (CMO). In turn, the CMO licenses the artiste’s work and collects royalties for same.

The CMO also enforces the artiste’s intellectual property rights should a licence not be secured. Remedies can include damages, and even an injunction to stop the event in question. In exchange for which, the artiste pays the CMO a percentage of the royalties collected from their work(s) and the CMO remits the remainder of the royalties to the artiste in question.

Locally we have four CMOs – all private companies – that act on behalf on various creators of works (whether musical, literary or otherwise). The repertoire of works covered by each CMO does not overlap. In fact, they cannot overlap.

Three of those CMOs cover works that are relevant to Carnival: the Copyright Music Organisation of TT (COTT), the TT Copyright Organisation (TTCO) and Awesome Copyright. A Carnival event in question may require licences from one of those CMOs, two of them, or all. It all depends on the content of that particular event.

Theoretically this is how it is supposed to work. In practice, however, some CMOs have been lapse in their accounting of royalties and in their remittance of same to artistes.

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Some CMOs have implicitly overstated their repertoire and suggested that a licence may be required from them, or them only. All of this with little or no accountability to artistes, event promoters or the general public. In my view, this state of affairs cannot continue.

Government regulations are needed to deal with an unaccountable CMO regime. A regime keen on holding others to account, with little internal self-governance.

Consider the recent unreported decision in TTCO v AG & Comptroller of the Intellectual Property Office, CV2018-04838, January 14, 2019 (oral reasons), February 7, 2019 (written reasons). In that case, the TTCO took issue with a press release by the Intellectual Property Office (IPO) on January 24, 2018 which correctly stated that “Event promoters bear the responsibility to determine which CMO(s) represents the copyrighted musical works and sound recordings to be used…”. The TTCO blamed its declining revenue on the release and sought, among several other items of relief, “A declaration… compelling the defendants to issue an official public statement/media release advising [event promoters and the like] … where soca, and/or calypso and/or chutney music or works of mas, must obtain a CMO licence from the intended claimant”. The court dismissed the application outright as there was no realistic prospect of success.

The court also agreed with the relevant contents of the press release, namely, that it was the “duty of the event promoters to be aware of the different CMOs and it was their responsibility to obtain the necessary licences”.

Despite what seemed to be an unequivocal dismissal of the proposed action in favour of the AG and the Comptroller of the IPO, the TTCO sent an urgent communication to the Promoters Association and others on February 1 indicating that “in her ratio decidendi, her Ladyship stated that the press release identified the rights of the TTCO…”. With respect, this is wrong and misleading. The ratio decidendi of the decision was the absence of any realistic prospect of the TTCO demonstrating that the IPO’s press release – which the court found to be accurate – could reasonably be the cause of the TTCO’s declining revenue.

Why does all of this matter? It matters because our agricultural and oil/gas sectors are in serious decline. A properly monetized and incentivised cultural and creative sector is one of our last major economic sectors. We can no longer stick our heads in the sand and pretend like copyright is a foreign concept to us.

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It is, in fact, vital to our economic viability going forward. We must properly educate event promoters, broadcasters and the public at large on the importance of copyright and of seeking the appropriate licence(s) where applicable.

In turn, the Government must enact regulations to protect our artistes and the cultural/creative sectors as a whole from CMO mismanagement, miscommunication and an overall lack of accountability.

EDITOR’S NOTE: The column above was submitted and published before Dr Crowne issued his latest statement, on Saturday, on mas and copyright. The statement appears below.

Mas Confusion

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Works of mas have come into the spotlight recently. In particular, the right to photograph, record or broadcast such works during Carnival. The TT Copyright Organisation (TTCO), the collective management organisation (CMO) that claims responsibility for administering the copyright in “works of mas”, has suggested that photography, videography and/or broadcasting of such works is illegal without authorization and anyone wishing to do same must first obtain permission from them or face claims of copyright infringement. That is partly true.

Trinidad and Tobago was the first jurisdiction to recognise “works of mas” as a copyright protected work. It is a meaningful way of protecting aspects of our culture that don’t readily fall into the traditional copyright model and agenda promoted by European countries. Sometimes, as a nation, we don’t give ourselves enough credit. This is a notable example. Under the Copyright Act a “work of mas” is defined under as:

“an original production intended to be performed by a person or a group of persons in which an artistic work in the form of an adornment or image presented by the person or persons is the primary element of the production, and in which such adornment or image may be accompanied by words, music, choreography or other works, regardless of whether the production is intended to be performed on stage, platform, street or other venue.”

In other words, it is a derivative work that comprises all of the primary features of mas (ie, the underlying artistic, dramatic and musical works). A notable example would be Peter Minshall’s Tan Tan and Saga Boy. This is the type of work, and originality, that affording copyright protection to works of mas was intended to safeguard against misappropriation. Consider too that Minshall is credited with creating the “tube man” or “tall boy” – a familiar sight at events, car dealerships and the like – but failed to garner the international respect he deserves since the mechanics of it was patented by a later collaborator.

On the flip side, however, are the non-original or utilitarian aspects of works of mas. Wining in a bikini covered in feathers and routine ornamentation is unlikely to attract protection as a “work of mas”. Those aspects of Carnival are familiar to all bands. They are not ‘owned’ by anyone, nor should they be. Something beyond those utilitarian or commonplace aspects of mas is required. What precisely that is remains to be seen as the legal scope of a “work of mas” has not yet been tested in court.

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Now it is true that the TTCO is the CMO responsible for administering and protecting “works of mas”. It is also equally true that it can only administer and protect works of mas within their repertoire. In other words, if the creator of a work of mas has not contracted with the TTCO to enforce their rights, then the TTCO has no claim or jurisdiction to enforce the rights in that work of mas. The CMO regime is entirely voluntary. With that said, if there are works of mas that are within the TTCO’s repertoire and an appropriate license has not been secured from them for the commercial use of that work, then yes, they can seek remedies and damages for that ostensible breach of copyright.

However, if a work of mas is outside of the TTCO’s repertoire then they have no jurisdiction to allege copyright infringement. Furthermore, even if a work of mas is within the TTCO’s repertoire, and the photograph or video is done purely for personal use, without commercial gain, then there is no liability under the Copyright Act. To suggest otherwise, even implicitly, is wrong and misleading. Furthermore, persons reporting on Carnival can reproduce or broadcast short excerpts of a work of mas if such reproduction or broadcasting is needed to help achieve the “informatory purpose” of the story.

In sum, the protections afforded to works of mas under the Copyright Act were designed to safeguard creators against the unauthorized commercial exploitation of their works. They were not designed to discourage Carnival goers at large who, purely for personal purposes, seek to enjoy, photograph or otherwise memorialise their time at Carnival. Copyright law, like everything in life, is about balance.

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Source: Newsday https://newsday.co.tt/2019/02/17/making-mas-with-copyright/

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