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    Inside Views
    Inside Views: Fair Usage In Caribbean Intellectual Property

    Published on 16 January 2011 @ 1:48 pm

    Disclaimer: the views expressed in this column are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors.

    Intellectual Property Watch

    By Abiola Inniss LLB,LLM,ACIArb

    At almost any time that the issue of intellectual property is discussed by peoples of the Caribbean there is considerable confusion and uncertainty to be found about what the law says, what it means and what the rights of usage are.

    This is not surprising or unexpected since many lawyers are themselves hard put upon to provide pertinent answers to the many arising issues. This is not aided in the least by broad statements on intellectual property such as the definitions given by the World Intellectual Property Organization (WIPO), which are a general aid to understanding the subject area but which cannot deal with the variations in national laws and which do not explain that with any of the rights described, responsibilities also exist.

    With the starkness of the non-existence of a regional policy on intellectual property and the absence in several countries of comprehensive, modern laws, the situation becomes an interesting mixture of self preservation, individual moral direction (or misdirection), opportunism, and even some attempts at the enforcement of individual concepts of justice in parallel existence with the other elements of the normal system of justice.

    A panoramic view of the IP situation in the Caribbean would present to the observer a carnival of Olympic size replete with politicians, diplomats, rights advocates, consumer groups, law enforcement, and impotent jurists, all gyrating discordantly to the WIPO band while Caribbean citizens look on, or are pulled or shoved in.

    A panoramic view of the IP situation in the Caribbean would present to the observer a carnival of Olympic size replete with politicians, diplomats, rights advocates, consumer groups, law enforcement, and impotent jurists, all gyrating discordantly to the WIPO band while Caribbean citizens look on, or are pulled or shoved in.

    It is in such a scenario that the concept of fair usage must be adumbrated and placed within the context of the WIPO outlines on intellectual property. While such a topic would undoubtedly require at least a chapter or more for proper discussion, a useful outline can be provided here.

    The term fair use or fair dealing, where it exists in intellectual property law, is used to describe the defences under English law (Copyright Designs and Patents Act 1988) to alleged infringement of copyright or if preferred, it describes permitted acts. Dealing in this sense means that someone has made use of the work and is not an implication of any arrangement between the parties. In fair dealing under the Act the following are permitted:

    1. Fair dealing for the purpose of research or private study
    2. Fair dealing for the purpose of research or criticism
    3. Fair dealing for the purpose of reporting current events.

    Under United States law, the 1976 Copyright Act (17 U.S.C , S 107) permits the some copying and distribution without the permission of the copyright holder or payment to the holder. While the statute does not clearly define fair use, it established four principles or factors which are described as non-exclusive and are intended to be used in analysing whether fair use has occurred or not. These are as follows:

    1. The purpose and character of the use;
    2 The nature of the copyrighted work;
    3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4. The effect of the use upon the potential market for or value of the copyrighted work.

    In many Commonwealth countries, the notion of fair usage was developed through Common Law or legislation and is intended to allow intellectual and other development through the fair use of information. This is based on the idea that there can only be substantial innovation, change and progress where knowledge is shared freely for legitimate purposes of learning and criticism which then contribute significantly to the body of knowledge of a subject area.

    [Updated]In Australia, the Copyright Act of 1968 allows a limited use of copyright material without requiring permission from the holder of a copyright. Fair dealing applies only to certain categories of use and there are certain other limitations and conditions which apply even then. The following purposes are allowed within the fair dealing exceptions: fair dealing for the purpose of research or study; fair dealing for the purpose of criticism or review; fair dealing for the purpose of parody or satire; fair dealing for the purpose of reporting news; reproduction for the purpose of judicial proceedings or professional advice (Copyright Act 1968, ss40-43).

    It is interesting that across the Caribbean there are varying degrees of the idea of fair usage in the protection of copyright. Perhaps the most comprehensive piece of copyright legislation which seeks to balance the interests of both the copyright holder and the end users, while promoting the idea described above, may be Jamaica’s Copyright Act of 1993 ( Copyright Act 01/09/1993, No.4), which clearly outlines the idea of fair dealing described above and gives detailed factors for the courts to consider in analysing infringement. This act gives the end user a number of permissions to use works fairly and without fear, while giving significant protection to the holders.

    The St. Lucia Copyright Act (Copyright Act 06/09/1995, No.10) also provides a comprehensive guide to usage for different purposes making fair allowance for educational and other learning purposes and details the requirements of fair dealing.

    The Copyright Act of Trinidad and Tobago follows the Jamaican and St. Lucian Acts in its modern outlook but is stricter in permitting the usage of works and does not provide any guiding factors for the analysis of infringement, leaving this to judicial interpretation. Barbados also allows some amount of fair use in its Copyright Act (Copyright and Related Rights Laws and Treaties Copyright Act, 1998) but is not as detailed as either Trinidad or Jamaica and restricts the use of copies by reprographic means even for educational purposes.

    What is clear from this small sampling of the laws in the Caribbean is that there is considerable recognition of the need to facilitate educational, intellectual and other development by fair use of intellectual property. It is also evident that within the context of the CSME (Caricom Single Market and Economy), the variations in the laws will create significant difficulties for the ease of intra-regional business.

    In a number of countries in the Caribbean modern laws do not exist, and this creates the wide variations in the rules of intellectual property. Guyana is case in point as it is still governed by the United Kingdom Copyright Act of 1956, while the Copyright Bill of 2003 has not been enacted. This is significantly compounded by the lack of a Regional Arbitral Tribunal for Intellectual Property or Regional Court of First Instance for Intellectual Property.

    While the idea of fair usage may be an acceptable notion to the end users of works, it may not be as appealing to the producers of works and that will have to be rectified by a balancing of the rights and responsibilities. A regional approach which promotes the idea of fair usage and explains the law will go a long way to creating the cordial nexus between the end users and holders of copyright.

    Caricom (the Caribbean Community) must assume its responsibilities in creating the regional policy for intellectual property and the region-wide promotion of the rights and responsibilities in Caribbean intellectual property.


    Ms. Abiola Inniss LLB, LLM (Business Law), ACIArb mediator and arbitrator, and is a graduate of The DeMontfort University School of Law UK and a member of the Chartered Institute of Arbitrators UK. She is a legal consultant in business law, law teacher, internationally published legal writer and speaker on Caribbean intellectual property, general business law and ADR, and is a mediator of the Guyana Supreme Court. She resides both in Georgetown, Guyana and New York.

     

    Comments

    1. Fair Usage In Caribbean Intellectual Property | Intellectual … | Property Prowlers says:

      [...] the original post: Fair Usage In Caribbean Intellectual Property | Intellectual … This entry was posted in Uncategorized and tagged all-gyrating, caribbean, consumer-groups, [...]

    2. N3 says:

      Thank you for the informative article! Does each country have its own respective copyright department? So would you have to file separately with each country?

    3. Abiola Inniss says:

      Thank you N3 for your kind response. each country has its own laws and copyright departments ,so one would have to file in each country under the various laws.

    4. Scholarly Communications @ Duke » A more sensible copyright law says:

      [...] when I saw this blog post about about Fair Usage in Caribbean Intellectual Property I saw an opportunity to consider alternative structures for copyright.  Ms. Inniss observes, in [...]


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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