A presentation by Shiveta Sooknanan, Legal Officer II, Intellectual Property Office at MusicTT, IPO & WIPO's How to Make a Living from Music workshop. 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

1. COPYRIGHT AND THE MUSIC INDUSTRY
IN TRINIDAD AND TOBAGO
Presented by:
Shiveta Sooknanan
Legal Officer II
Intellectual Property Office

2. 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

3. IP refers to expressed creations of the mind
World Intellectual Property Organization (WIPO)

5. WHAT IS COPYRIGHT?

6. Copyright- protection for original
literary, dramatic, musical, artistic
works

7. WHAT IS THE GOVERNING
LEGISLATION IN
TRINIDAD AND TOBAGO?

8. o Copyright Act, Chap 82:80 and
Copyright Regulations
You may view the Copyright Act
online
at: -
http://www.legalaffairs.gov.tt

9. WHAT CAN BE
PROTECTED BY
COPYRIGHT?

10. 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

11. 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;

12. 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.

13. WHAT CANNOT BE
PROTECTED BY
COPYRIGHT?

14. 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

15. 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)

16. HOW LONG IS THE TERM
OF PROTECTION FOR A
COPYRIGHTABLE WORK?

17.  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

18. HOW TO PROTECT YOUR
COPYRIGHT?

19. 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

20. 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

21. WHAT ARE THE RIGHTS
OF A COPYRIGHT
OWNER?

22. 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;

23. (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

24.  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

25. NEIGHBOURING RIGHTS

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

27. Rights of Performers

28. • 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

29. Rights of Producers
of Sound Recordings

30. • 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

31. Broadcasting

32. Rights of Broadcasting Organisations
Broadcasting organisations have the right to
do, 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.

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

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

35. 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

36. HOW CAN A COPYRIGHT
OWNER OBTAIN
ROYALTIES?

37. Individual rights management
Collective management
Traditional CMOs
One-stop-shops
Rights clearance centres

38. INDIVIDUAL RIGHTS
MANAGEMENT

39. 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

40. COLLECTIVE MANAGEMENT

41. WHAT IS COLLECTIVE
MANAGEMENT?

42.  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)

43. WHAT IS A COLLECTIVE
MANAGEMENT
ORGANISATION (CMO)?

44.  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

45.  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

46. WHAT ARE THE BENEFITS
OF USING A CMO?

47.  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

48. MODELS OF COLLECTIVE
MANAGEMENT

49. The models of collective
management of rights include:
 Traditional CMOs
 One-stop-shops
 Rights clearance centres

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

51. Traditional CMOs
CMOs 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).

52. 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

53. UNITED KINGDOM

54. 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

55. 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

56. RIGHTS CLEARANCE CENTRE
MODEL

57. 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

58. CMOs IN THE CARIBBEAN

59. 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

60. 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.

62. 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

63. 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

64. CMOs AND
LEGISLATION/REGULATIONS

65. 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

66. 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

67. 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

68. 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

69. 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

70. 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

71. • 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:

72. LICENSING FORMATS AND
ROYALTIES

73. LICENSING FORMATS

74. • Public Performance Licence
A licence granting the right to perform the work in, or
transmit the work to the public
• Mechanical Licence
A licence granting the right to reproduce the musical
composition in CDs, tapes, vinyl records, cassettes,
mini-discs, or other forms of recordings
• Synchronization Licence
Music 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

75. •Broadcasting and online
A 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

76. 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

77. MUSIC IN ADVERTISING AND FILM

78. COMMERICAL ADVERTISING
The 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

79. TV AND FILM
A synchronization licence is required to use copyrighted
material in TV and Films
The 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

80. ROYALTIES

81. How are Royalties
determined by a CMO?

82. 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

83. 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

84. 41 Public Performance
Tariffs
Source: PRS for Music

85. 41 Public Performance
Tariffs
Source: PRS for Music

86. 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

87. 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

88. COPYRIGHT INFRINGEMENT

89. 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;

90. • 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

91. Public Performance

92. 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

93. • 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

94. Remedies for infringement
• Penalties
• Injunctions
• Seizure, forfeiture and destruction of all
infringing copies

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

96. • 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

97. PIRACY AND COUNTERFEIT

98. Piracy v Counterfeit
Pirated – copyright violation
Counterfeit – industrial property
violation – trademarks, patents,
industrial designs

99.  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)

100. • 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

101. 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

102. 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)

103. LICENSING

104. 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

105. 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)

106. SOLUTIONS

107.  IP education and training
 Recognition that piracy is part of organized
crimes, money laundering, human trafficking etc.
 Exploring licensing agreements with Spotify,
Apple, Netflix

108. 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.

109.  “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

112. Anti-piracy Campaign- IPO

113. 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)

114. 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

115. 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

116. 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

117. Address: 3rd
Floor, Capital Plaza, 11-13 Frederick
Street, Port of Spain.
Email: info@ipo.gov.tt
Phone: 625-1907; 627-0706
www.ipo.gov.tt