Promoting Caribbean Intellectual Property Law

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By Abiola Inniss, LLB, LLM, ACIArb

Across the world, the Caribbean is renowned for its unique flavors in music and entertainment, its beaches, cricket, and its commonly acclaimed fun and sun. While these are well-deserved, and are sources of just pride, this common perception provides foliage which bars the examination and explanation of the real problems and needs in intellectual property in the Caribbean, and in fact gives the impression in the developed world, that the region enjoys a laid back, carefree lifestyle based in part on a parasitic relationship with the developed world from which it has no intention of diverting. The ‘yeah mon’ chanting, shirtless, buff bodied citizen portrayed in tourism advertisements has become the symbol of Caribbean life; this, combined with the weak representation and lack of intellectual investment in the issues which affect intellectual property (IP) in the region, has resulted in the volatile state of affairs in which the region finds itself.

Among the problems faced by the Caribbean citizen are the lack of an adequate legal and regulatory framework which encompasses the needs of the Caribbean Single Market and Economy taking into account matters of private international law, consumer law, international trade law, choice of law issues, competition law, as well as the mechanisms for dispute resolution which must include alternative dispute resolution (ADR), in the forms of mediation, arbitration and negotiation.

In the midst of all this, intellectual property and the accompanying laws or lack of them have dogged the Caribbean citizen. In the first instance, the issue of the regulation of intellectual property has not been properly addressed, and the regional body Caricom, has not instituted a holistic plan which will incorporate a legal and regulatory framework complete with dispute resolution mechanisms. In all of this, the Caribbean citizen may be described as trying to play the steel pan without a mallet while politicians conduct the band. The recognition that the intellectual property challenges of the Caribbean are unique and require special and urgent treatment has obtained only in select circles of interest and even then, only as purely academic discourse or as discussion of frustrated artists and producers who find it impossible to have their works protected throughout the Caribbean region and must settle for pockets of protection provided by the legislation of individual countries.

The challenges of the regulation of intellectual property law are multifaceted and begin at the level of the Caribbean states. Each country in the region has some form of IP protection at law and the level of enforcement of these laws varies in accordance with the government’s policy and interests. It is a curious fact that throughout Caricom, the degrees of modernity and stringency of enforcement vary from one to another extreme. Two examples of this are Guyana’s Copyright Act which is actually the UK Copyright Act of 1956 to which Guyana acceded in 1966 after independence, and Jamaica’s Copyright Act of 1993.

While the Guyana Act has the basic requirements for protection of copyright, it is woefully inadequate for dealing with modern needs of modern producers of copyrightable material. Additionally, under the Act copyright infringement is a civil wrong and does not attract criminal liability, which means that the onus lies on the person who was wronged to enforce his or her rights by court action.

The Jamaican Act may be described as a modern, comprehensive piece of legislation which seeks to balance both the interests of the rights holders and end users. The Jamaican government policy also speaks to stringent enforcement of the law in this area. In between these two examples there exist varying degrees of legislative abeyance in the creation of comprehensive policies and rights which are modern and forward-looking and allow for the development of the citizen and the country as a whole. Trademark and patent rights are similarly affected.

The Unique Challenges of Caribbean IP Law

The cultural diversity of the Caribbean, its history and its evolution as a living space are some of the factors which make the issue of intellectual property different from any other place in the world, and while it has been classed as a developing region by international institutions, its challenges are not the same as other developing regions. The Caribbean region is largely tourism-oriented and though there are other industries which make a significant contribution to the regional economy, the region has not evolved an industrialized economy. This has meant that the business of entertainment and tourism for several decades has sustained entire countries within the region.

Tourism does not employ everyone and there are other industries in service, entertainment and agriculture which help to take care of the need for economic viability. Vending is a large source of income for many families, and single parent female-headed households particularly prefer this as a source of income. The vending of everything from food to books, CDs, DVDs and clothing has contributed and continues to contribute in no small part to the income of many Caribbean families. The vending of bootlegged goods, which are cheaper than originals, satisfies a basic need for entertainment, clothing, novelty, luxury or semi-luxury items which may be cheaply replicated. The challenge for policy and law makers is to create the appropriate legislation which will enforce the rights of all holders of copyright while supporting the development of legitimate industry. The registration of patents and trademarks is also problematic for manufacturers and designers because each country has different requirements and processes. Additionally, the lack of a regional patents office which would be responsible for region-wide regulation, implementation and monitoring of trademarks and patents, provides further difficulty for the enforcement of patents and trademarks rights across borders.

The attitudes of end users towards copyright, trademark and patent issues, range from the sympathetic to the uninterested and are directly related to government policies and practices.

Intellectual property encompasses many different areas, all of which affect the Caribbean region to greater or lesser degrees. The issues of traditional knowledge and IP, in which protection is being sought for knowledge indigenous to groups of persons such as Amerindian tribes, Rastafarians, practitioners of certain religions, such as Shango of Trinidad, Jordanites of Guyana, and other traditional medicines and folklore region-wide. This is extremely important in the face of the growing tendency of dilution with western culture, and the unacknowledged and /or unapproved usage of traditional material for commercial purposes.

Promoting the Concept of Caribbean IP law

The concept of Caribbean intellectual property law is different from the idea of intellectual property law in the Caribbean as it currently obtains because it requires the construction of a legal and regulatory framework which encompasses the cultural heritage of the region, considers the requirements of balancing the interests of the society with that of regulation and creates a cumulative process that will facilitate growth and development in the areas critical to the Caribbean economy – one example of which is internet-based industry.

To make the distinction clearer it must be explained that Caribbean intellectual property law must propose a holistic approach to the regulation of intellectual property matters, which may be distinguished from the piecemeal application and adaptation of IP law taken from other jurisdictions and implemented ad hoc in individual territories as currently applies today. The fact of the non-existence of modern laws in a number of countries makes for both an imperative and an excellent opportunity to create a modern, viable legal and regulatory system for IP. This writer has proposed a number of regulatory approaches to bolster the current available systems as well as the creation of a distinctive legal and regulatory framework. (see Essays in Caribbean Law and Policy; a comprehensive discourse, A. Inniss, Lambert Academic Publishing, May 2011.) This concept must be actively discussed and examined in order that both citizenry and government in the Caribbean can begin to understand and recognize the global and local impact of a properly constructed IP policy and framework.

Promoting a culture of rights, responsibilities and respect.

Even as the intellectual examination of IP issues and policy is carried out, the Caribbean citizen should be encouraged to adhere to the universal commandment that ‘thou shalt not steal’. It is after all common moral sense that where someone has produced some music or written a book, or produced anything that one may find useful, it is wrong to take it and use it for one’s own financial gain without their permission, or without paying for it. Children of school age need to be taught that plagiarism is morally wrong as well as illegal in most places, and that works must be properly and suitably acknowledged when used in academic or other presentations. In other words, the universal principle of ‘do onto others as you would have them do onto you’ also applies in promoting respect and responsibility. Further there needs to be a region-wide effort to sensitize the public about IP rights which must be carried out with the same vigor and energy apportioned to other important issues such as HIV/AIDS and human rights.

Finally, it is important to understand that without a Caribbean intellectual property legal and regulatory framework, there is little opportunity for the development of intra-regional and international business and that the aspirations of the Caribbean Single Market and Economy will not be realized where there is piecemeal accountability and regional dissonance. The international community has scant regard for issues which do not serve their interests and little patience with the vagaries of Caribbean life. The task is ours to create the system which will work for us while being compliant with international standards. The WIPO rules are useful guidelines and since most Caribbean countries are signatories to the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement because of the World Trade Organization requirements, this provides a good foundation for a cumulative framework.

The Caribbean cannot succeed without the input of intellectual and financial resources which focus on the particular needs of our region while referencing the international community. It is necessary to create systems which will work for us and gain the respect of the international community; it is time to give the lie to the perception of helpless antipathy common to Caribbean issues.

Note: originally presented as issue brief at the CARIBBEAN AMERICAN LEGISLATIVE CONFERENCE WEEK, June 2011, Washington, DC.

Abiola A. A. Inniss, LLB, LLM (Business Law), ACIArb mediator, and arbitrator, is a graduate of The DeMontfort University School of Law, UK, and 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. She is the author of Copying, Copyright and the Internet; the issue of internet regulation with regard to copying and copyright, Lambert Academic Publishing March 2011, and Essays in Caribbean law and Policy; a comprehensive discourse, Lambert Academic Publishing, May 2011, both available at Barnes & Noble bookstores and worldwide.

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