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Thursday 18 April 2019
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Commentary

An IP perspective from the top

“WE ARE actively looking at regulation,” said Regan Asgarali, controller at the Intellectual Property Office, in response to a direct question about issues arising from this year’s Carnival copyright confusion.

“It doesn’t mean that by having regulations, that problems will get solved, it’s about working with CMOs (copyright management organisations) to create a unified approach moving forward.”

I’d responded to a summoning from his office at the Ministry of the Attorney General and Legal Affairs with a certain measure of concern, inviting photographer Maria Nunes along to mollify any bouff that might be in the offing.

Instead, in a wide-ranging discussion about the scope of the IP office and some startling but unfortunately off-the-record clarifications, the controller sought to bring clarity to very muddy copyright waters.

Asgarali noted that CMOs previously resisted regulation, which would constitute government oversight of what is, at its core, a private sector business proposition.

But recent challenges in the local IP sector, not limited to works of mas by any means, have led to a more accommodating stance among some CMOs.

The IP office has been having discussions with CMOs since 2010 about establishing a code of conduct that would govern the operations of copyright collection agencies in TT.

CMOs are businesses, most operating as non-profits, so their businesses are governed by company law.

“A CMO is market driven,” Asgarali said, “it must inspire confidence and to do that it must be transparent and accountable in its operations.”

The TT IP office has studied the IP practices of 45 countries worldwide.

“In Thailand, there are 26 CMOs for music and recordings alone. Some countries are completely free market. Some have made it a function of government. I cannot say that this has worked seamlessly anywhere in the world.”

“There is a need for more oversight and guidance and to bring (local) CMOs into line with international practices.”

Part of the problem locally lies in the reality that vast swaths of copyright law as enacted in Trinidad and Tobago have never been tested in court and there’s no local precedent to guide jurisprudence.

Everyone is currently interpreting the law, and some parties are clearly reading into the words a perspective that favours their own position.

Asgarali pointed to a recent case that moved interpretation into jurisprudence (PDF here: http://ow.ly/gFHz30nU3n7) after the IP office was challenged on the wording of a press release that the TTCO (TT Copyright Collection Organisation) claimed had reduced their capacity to collect income.

“There is now jurisprudence that clarifies the scope of a CMO after the suit,” Asgarali said. A key point of resistance in the debate over the TTCO’s insistence on charging a “royalty fee” in advance of photography to cover anticipated use drew a careful response from the IP controller.

“We are doing the research into whether it is possible to charge a fee for copyright in advance of use,” he responded.

“We are clear that use in the public interest, such as newspapers, is not covered by copyright limitations (on publishing).

“There is no collective licensing. A CMO can only represent those who have authorised it to do so, in writing.

There must be a document; we have certainty in Trinidad and Tobago law.

“This is a healthy discussion that’s moving the country forward. Copyright is a balancing act that’s meant to reward, and to address all interests involved and benefit all rights holders. “Eventually there will be jurisprudence on it that will clarify some of these matters; the US has had more than a 100 years to refine and define their law.

“These are growing pains, IP is still developing; we are still very new in it.”

Mark Lyndersay is the editor of technewstt.com. An expanded version of this column can be found there

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