Full Blown Entertainment: a missed opportunity for advancing the copyright law of developing Commonwealth countries with hybrid copyright systems

Full Blown Entertainment: a missed opportunity for advancing the copyright law of developing... This author Justin Koo is a Lecturer in Law at The University of the West Indies, St Augustine. This article Trinidad and Tobago’s ninth copyright case, Full Blown Entertainment, was a welcome development. However, the actual decision delivered amounted to a missed opportunity to create desirable precedent to follow in developing Commonwealth countries with hybrid copyright acts based on UK law. As such, the shortcomings of the case are critically analysed and comments for the future development of copyright law in developing Commonwealth countries with hybrid copyright systems are offered. This article sets out to provide lessons for the development of copyright law in developing Commonwealth countries with hybrid copyright systems, using Full Blown Entertainment v Matthews1 as a case study. With this aim in mind, the article is divided into three parts. The first section addresses the context in which Trinidad and Tobago2 copyright law has developed and its consequential hybrid nature. The second section focuses on the structure and substance of the Full Blown Entertainment case. The key aspects of Seepersad J’s decision are highlighted; notably, emphasis is placed on the structure of the decision, the tests employed in finding infringement and the case law used. The third section addresses the problems identified in section two by providing recommendations. They concern: designing an effective hybrid copyright framework; restructuring the framework for copyright infringement; clarifying the tests employed in the determination of copyright subsistence and infringement; and providing training and education for the public and judges. Taken together, these recommendations will provide the means to develop a more coherent copyright law framework for Trinidad and other developing Commonwealth countries with hybrid copyright laws influenced by UK jurisprudence. 1 Trinidad copyright context Trinidad copyright law has its roots in the UK Copyright Act 19113 that was directly applicable.4 The first domestic copyright law statute in Trinidad was the Copyright Act 1985.5 This was later replaced by the Copyright Act 1997,6 which has undergone two amendments to date. In addition to this, Trinidad is signatory to the Berne Convention,7 the Universal Copyright Convention,8 the TRIPS Agreement,9 and the WIPO Copyright Treaty.10 Therefore, copyright law is not a recent development in Trinidad. However, Trinidad courts have only heard nine copyright cases so far.11 Copyright law serves as the primary means of protection for Trinidad’s unique art forms associated with its famous carnival, namely its ‘calypso’ and ‘soca’ music and its carnival costumes together with any associated fine or applied art.12 These art forms are an integral part of the country’s history, culture and identity.13 This is reflected to the extent that a provision on ‘works of mas’14 was pioneered under section 6(1)(c) of the 1997 Copyright Act.15 Consequently, the development of Trinidad copyright law must account for three primary interests—authors, users and culture. While the importance of art and music to Trinidad does not create a unique situation in the international copyright context,16 it is still imperative to state the importance of culture because it ought to be accounted for in equal terms to the concerns of authors/owners and users. Thus, any development in Trinidad copyright law must reflect a predisposition for the protection of local art forms.17 It is also the case that the 1997 Trinidad Copyright Act is hybrid.18 By hybrid, it is meant that Trinidad copyright law encompasses elements from different sources. This includes copyright elements from the UK statute and case law, international copyright treaties and more recently US copyright statute and case law. Thus, Trinidad copyright law has departed from its strict adherence to UK copyright law, similarly to many other Commonwealth countries.19 Unlike the 1985 Trinidad Copyright Act that was based on the 1956 UK Copyright Act,20 the 1997 Trinidad Copyright Act incorporates aspects of both common law copyright and civil law droit d’auteur through its obligations under international treaties, thus differentiating it from the most recent 1988 UK Copyright, Designs and Patents Act.21 There are multiple examples that can be used to illustrate the hybrid nature of the Trinidad Copyright Act: the core concepts of subject-matter; exceptions and limitations; moral rights; and the overall structure of the Act. The structure of the Trinidad Copyright Act remains more reflective of the UK approach than a civil law approach. However, its layout includes a definition section at the beginning similar to the US Copyright Act.22 Furthermore, unlike the civil law droit d’auteur statutes and codes that place more importance on authorship/ownership and moral rights, the Trinidad Copyright Act, like the UK Act, focuses on the economic rights. This difference is portrayed by the placement of the provisions in the statutes and the number of exclusive rights available. If the French IP Code23 is examined, it is seen that both authorship/ownership and moral rights are discussed before the economic rights or ‘patrimonial rights’ as it is termed in the French IP Code. Similarly, the French IP Code only lists two economic rights, reproduction and performance. This is in contrast to the UK that lists: reproduction, distribution, rental and lending, public performance, communication to the public and adaptation.24 These differences are attributable to the differences in the rationale underpinning the protection of copyright. Whereas, in civil law countries like France, droit d’auteur is rooted in natural rights and authorial protection, in contrast common law copyright can be said to have a more economic justification. This philosophical difference equally translates to the substance of the rights in the various statutes, which brings the issue back to the hybridity of the Trinidad Copyright Act. Despite the resemblance in structure, the Trinidad Copyright Act has departed from the UK approach in its substance. Such departure is noticeable with regard to subject-matter, moral rights and exceptions and limitations. The Trinidad Copyright Act employs an open list toward subject-matter similar to droit d’auteur countries and the USA.25 This is discernible from section 5(1) of the Trinidad Copyright Act that provides a non-exhaustive list of subject-matter given that the phrase ‘Copyright is a property right which subsists in literary and artistic works … including in particular–’. This finding is reinforced by section 5(2) that states: ‘works shall be protected by the sole fact of their creation and irrespective of their mode or form of expression, as well as of their content, quality and purpose’. Thus, setting it aside from traditional UK copyright law that employs an exhaustive list of copyright works.26 The consequence of this is that any work that is original can be potentially protected under Trinidad copyright law. As for exceptions and limitations, the issue is more convoluted. A narrow list of exceptions is provided under section 9–17 of the Trinidad Copyright Act. This narrow approach to exceptions and limitations is reminiscent of the droit d’auteur approach, as opposed to the extensive list of the UK CDPA 1988, section 28–76. However, the Trinidad copyright exceptions employ a wording similar to the UK CDPA 1988, including the use of the term ‘fair dealing’.27 The problem this poses for Trinidad courts is determining how wide the scope of the exceptions and limitations should be construed. In this matter, caution will have to be exercised in using UK case law to support the application of the Trinidad copyright statute because the substance of the rights may be different despite similarities in language or terminology.28 Lastly, in terms of moral rights, Trinidad copyright law has provided more extensive protection than the UK CDPA 1988. Although the moral rights available are the same in principle, the right to attribution and the right to integrity,29 the operation of the rights are different. There is no requirement in the Trinidad Act for assertion to activate the right to attribution30 and no exceptions to the rights.31 However, the option of waiving the moral rights is present.32 From this, elements of both the civil law approach to moral rights and the UK approach are conflated.33 In looking at how Trinidad copyright law has diverged from its UK roots via its hybridity, the ultimate conclusion points in the direction of caution in using foreign case law to support the application of Trinidad copyright law. It must also be emphasized that Trinidad courts must understand that they are not necessarily bound to the principles of UK copyright law. Having said that, there is much to learn from the established copyright and droit d’auteur laws of other countries, in particular, other Commonwealth countries that have developed hybrid copyright systems, including Canada,34 Singapore,35 Australia36 and South Africa.37 Furthermore, the Trinidad experience following Full Blown Entertainment can provide valuable lessons to other developing Commonwealth countries with hybrid frameworks, in their pursuit of advancing copyright laws. In particular, other Commonwealth Caribbean countries like Jamaica and Barbados that have departed from the UK statutory approach, toward an approach that resembles the one of the USA.38 Despite the importance of copyright law for the protection of the domestic cultural art forms and other works in Trinidad and the potential to develop an effective hybrid copyright system, its use has been limited. There is an ongoing flagrant disregard for copyright law, manifesting itself in the form of mass sales of unauthorized copies of films, music and video games, unauthorized uses of photographs and films in various forms of media and an abhorrence to paying collective licensing fees.39 Perhaps the continued disregard for copyright law is partly attributable to the lack of enforcement, but it is equally plausible to argue that lack of awareness of intellectual property rights is to blame.40 This is evidenced by the small number of copyright cases and, generally, intellectual property cases.41 Seepersad J in Full Blown Entertainment alludes to the lack of cases in the penultimate paragraph of his judgment stating that the bringing of a copyright case before the courts should be applauded and furthermore, going forward there is a need for increased sensitization, appreciation and awareness of intellectual property rights.42 From these statements, it can be inferred that copyright law in Trinidad continues to be esoteric. The consequence of the failure to enforce and develop copyright law in Trinidad and Tobago is not limited to lost financial opportunities, but includes the loss of an opportunity to create and hone a hybrid copyright system that can serve as a model for developing Commonwealth countries with hybrid frameworks. Despite Trinidad’s British colonial history, its foray into a hybrid copyright system has provided the possibility of forging a new or different approach to copyright law that can be tailored to the nuanced needs and desires of the country. However, the fact that Trinidad courts have not had many opportunities to develop its approach to copyright law has largely stalled any judicial and statutory progress.43 The consequences of this are seen in Full Blown Entertainment, the most recent copyright decision in Trinidad and Tobago. 2 Full Blown Entertainment v Matthews Full Blown Entertainment was the first copyright case involving indigenous ‘soca’ music and only the ninth copyright case in Trinidad. Furthermore, the decision was the first case to discuss substantive elements of Trinidad copyright law. The claimant contended that his song ‘No worries’ had been copied by the defendant’s identically titled song. The claim for infringement centred around similarity in lyrical content. It was argued that the defendant copied the phrase ‘wine with no worries’44 and sung this phrase in a similar manner and melody.45 Seepersad J concluded that there was no infringement of copyright in the claimant’s song. Addressing the words ‘wine with no worries’ first, Seepersad J argued that there is no ‘original skill, labour or originality of thought’ associated with those words.46 This claim was supported by the fact that the words themselves are commonplace in the ‘soca’ music genre.47 As a matter of the facts and law before the court, this was the right decision. However, two interesting points arise. It was curious to see the judge depart from the traditional phrase ‘labour, skill and judgement’ that is common to the UK copyright case law.48 It is uncertain whether this was a deliberate move to set an ‘originality’ threshold different to that of the UK approach or simply an interchangeable use of language. Furthermore, the concluding sentence of paragraph 71 seemingly left it open that phrases can be subject to copyright protection in Trinidad. Seepersad J stated: ‘the phrase is not a unique literary expression which can attract copyright protection’. From this, it appears that a ‘unique literary expression’ can be subject to copyright protection. The use of the word ‘unique’, prima facie suggests some essence of novelty. However, this has never been a requirement for copyright law. Therefore, it is uncertain what threshold this sets for copyright protection.49 Moreover, the uncertainty extends to the question whether there is conflict between the phrase ‘unique literary expression’ and the ‘originality’ requirement previously expressed: ‘original skill, labour or originality of thought’. It is unknown whether ‘unique literary expression’ comes within the scope of ‘originality of thought’ or whether a separate threshold is established for the protection of phrases. Consequently, there is a need to clarify the ‘originality’ requirement under Trinidad copyright law. In terms of the melody and delivery of the phrase ‘wine with no worries’, the judge also found no infringement. It was held that ‘it could not be said that the defendants took from the claimant’s work so much of what was pleasing to the ears of the target audience or that there was an unauthorised appropriation for which the defendants should account’.50 The reasoning used by the court in support of this conclusion is convoluted because of its interchangeable use of different infringement standards coupled with the lack of a coherent structure for establishing infringement. The lack of structure is evidenced by the haphazard order of discussion. For example, Seepersad J discussed whether the defendant independently created his work after discussing whether a substantial part of the claimant’s work had been copied.51 This made no sense because an initial finding of independent creation would have made the discussion on substantial part unnecessary and irrelevant. This issue could have been avoided given that Seepersad J cited the decision of the House of Lords in Designers Guild52 in his preliminary discussion,53 which in turn could have been used to provide the structure for determining infringement. For example, the issue of independent creation could have been addressed under the second limb of Designers Guild concerning derivation/access rather than an afterthought. However, it remains the case that the decision lacks a formal structure concerning how to approach infringement proceedings.54 Several UK55 and US56 cases, Copinger57 and Halsbury’s Laws on Copyright58 were cited for the potential establishment of a formal process to address infringement.59 Yet, the actual decision is void of any helpful structure. This is attributable to the courts’ failure to apply these sources in further detail. Furthermore, the lack of domestic copyright case law has not allowed the courts to explore the area of law in any detail. Nonetheless, it is necessary that a formal structure be established. Beyond the lack of structure, Full Blown Entertainment also suffers from particular inconsistencies due to the case law used. At paragraph 73, the UK cases IPC Media and Coffey are cited in support of a preliminary finding of no infringement. Subsequent to this, at paragraph 78, the US standard of ‘what was pleasing to the ears of the target audience’ was used for the ultimate conclusion. All of these cases were used for the purpose of establishing a ‘substantial part’ in order to prove infringement. However, this was not explained, nor was any substantive analysis of the cases conducted. With regards to the UK cases, Coffey is discussed at paragraphs 28–31. However IPC Media is merely noted without any formal citation or referencing. Furthermore, the actual basis for the decision that ‘it could not be said that the defendants took from the claimant’s work so much of what was pleasing to the ears of the target audience or that there was an unauthorized appropriation for which the defendants should account’,60 was not accompanied by any discussion. In fact, paragraph 78 where this standard was applied, did not cite McDonald v West, from which Seepersad J derived the reasoning. This is of serious concern because the use of the US case McDonald v West is subject to three significant criticisms. First, the phrase ‘it could not be said that the defendants took from the claimant’s work so much of what was pleasing to the ears of the target audience’, the so-called ‘lay/ordinary observer test’, was derived from the US case Arnstein.61 Added to the fact that Arnstein is not cited or discussed in the judgment by Seepersad J,62 it is centrally important to note that Arnstein has been subjected to conflicting judicial treatment.63 In Apple Computer v Microsoft Corp,64 the court dismissed the approach to infringement, whereby non-protectable elements of a copyright work should be disregarded for the purposes of a copyright infringement case. Instead, the work as a whole should be looked at for the purpose of determining infringement.65 However, this concern could have been avoided by means of a more extensive analysis of McDonald v West. The court in McDonald v West alluded to the ‘more discerning observer test’66 and also discussed the holistic comparison of the competing works.67 Consequently, the manner in which McDonald v West is used by Seepersad J is restrictive and fails to convey its nuanced reasoning. Therefore, Seepersad J’s use of McDonald v West without any context or further discussion undermines the value of the precedent set in Full Blown Entertainment. However, it should be noted that the issue of substantial part for copyright infringement in US courts remains a contentious debate.68 Secondly, the cases of IPC Media and Coffey conflict with the way McDonald v West is used by Seepersad J. This is because the precedent behind IPC Media and Coffey states that individual aspects of a copyright work should not be isolated for the purpose of determining copyright infringement.69 This is in contrast to Seepersad J’s use of McDonald v West where he limited the precedent to focusing on the aesthetically pleasing elements of the copyright work through the lay/ordinary observer test.70 As such, there is conceptual conflict between the cases used.71 Seepersad J failed to note or engage with this conflict and thereby, carelessly creates an unnecessary conundrum for Trinidad copyright law, which undermines the value of the decision. Consequently, the issue of case law inconsistency arises. Thirdly, if the lay/ordinary observer test as applied in McDonald v West is to be relied on, then Seepersad J makes a fundamental error in allowing expert testimony in Full Blown Entertainment. This point has been the subject of much debate in US courts. However, following Altai72 and Denker73 it would appear that where the lay/ordinary observer test is applied for the purpose of determining a substantial part, the use of expert evidence is irrelevant because the finding is to be made on the basis of an ordinary person in the street with no expert knowledge. Again, this issue could have been avoided by means of a more substantive analysis of the case law relied upon. Thus far, this section isolated the key aspects of the Full Blown Entertainment decision and highlighted several issues. However, the penultimate paragraph of the judgment deserves equal treatment. Seepersad J stated that despite the claimant being unsuccessful, the bringing of an intellectual property claim should be applauded.74 This contextualizes the whole judgment and its problems. As previously mentioned this case was the first ‘soca’ copyright case and the only substantive copyright decision handed down in Trinidad. Seepersad J’s statement confirmed the comment that Trinidad courts have not had a real opportunity to develop its copyright jurisprudence. This is evidenced by the absence of a formal structure for infringement proceedings and the uncertainty about what precedent and tests should be used. Moreover, the back and forth citation of US and UK case law as potential support for the decision making of the court demonstrates the current legal-limbo facing Trinidad copyright law. However, it is not necessarily a bad thing for Trinidad copyright law to be in legal-limbo given its largely infantile stage of development. Instead, Trinidad copyright law can craft its own unique copyright system to reflect its nuances. The primary benefit of this is the ability to learn lessons from other copyright jurisdictions.75 While the best-known jurisdictions may be the UK and US for common law copyright, the countries that have hybrid copyright systems such as Australia, Canada, Singapore and South Africa should also be looked at. It remains the case that the hybrid copyright framework for Trinidad copyright law has much to offer. Another advantage to the infant nature of copyright law in Trinidad is the ability to mould its own copyright jurisprudence. While the statutory law is already in existence, the courts have a wide scope to interpret the statute to suit the needs of the country and its local creative industries. There are no rules or obligations binding Trinidad courts to follow precedent from a specific jurisdiction in relation to copyright law. This is compounded by the fact that the Trinidad copyright statute is hybrid. Despite the general tendency to follow the laws of the UK, the Trinidad Copyright Act has departed in numerous instances as discussed in Section 1, but maintains several features reminiscent of UK copyright law including the general structure and layout of the Act. Similarly, the Trinidad Copyright Act has a unique provision concerning the protection of ‘works of mas’ under section 6(1)(c) of the Trinidad Copyright Act. In this instance, there is no precedent to rely on. Consequently, Trinidadian courts largely have a blank canvas to develop their copyright law. Thus, the question to be answered is what is the best way forward for Trinidad copyright law and by extension what lessons can be learnt by other developing Commonwealth countries with hybrid frameworks. Section 3 will provide some recommendations to this end. It is worth recalling the words of Seepersad J to inform the discussion of developing Trinidad copyright law. In his penultimate paragraph, he emphasized the need to sensitise and expose individuals to intellectual property and its importance, particularly in the local creative industries and by extension he called for an increase in domestic stakeholders enforcing their intellectual property rights.76 This plea would appear to be an invitation to help develop Trinidad copyright law and in doing so boost the sophistication and protection of the creative industries within the country. 3 The way forward The decision in Full Blown Entertainment raises several concerns about the copyright law of Trinidad. In particular, the lack of expertise and absence of rules to follow was identified. In moving forward, it is proposed that the following four themes be addressed to facilitate the development of Trinidad copyright law and moreover the copyright law of any other developing Commonwealth country with a hybrid copyright system: Crafting and maximizing a hybrid copyright framework (Re)structuring copyright infringement case law Clarifying tests used Training and education 3.1 Crafting and maximizing a hybrid copyright framework The Trinidad Copyright Act incorporates aspects of Anglo-American copyright law and civil droit d’auteur. However, despite the hybrid nature of Trinidad copyright law, there is still a UK-centric focus in its application and support. This is demonstrated in Full Blown Entertainment where the majority of sources relied upon were from the UK. The consequence of this is that the full value of a hybrid copyright system is not being realized at present. The benefits of a hybrid copyright system are twofold. Firstly, it allows lawmakers to tailor the copyright system to suit the needs of the country in question. This is important for developing countries that have specific copyright needs.77 Moreover, it allows that country to foster its own philosophical underpinning to guide its copyright law.78 In the context of Trinidad, this has significance for the protection of local cultural works. The consequence of this may be specific laws like the ‘works of mas’ provision. For example, the copyright law of Trinidad may be designed to offer owners of cultural works more stringent protection to encourage more investment. Alternatively, copyright law may be tweaked to allow for freer dissemination of cultural works through broader exceptions and limitations with the intention of showcasing national culture. The second benefit is that a hybrid copyright law has allows for hindsight, whereby lessons learned from other copyright systems can be employed. In this way, incoherent developments in law can be avoided. For example, Trinidad copyright law can be tweaked to avoid definitional issues or the interpretation of a provision can be devised in a way to circumvent/prevent copyright inconsistency and/or incoherence. However, the hybridity of Trinidad copyright law has not really manifested these benefits. It is still unknown what the theoretical underpinning of the Trinidad Copyright Act is and moreover, it is uncertain what the desired direction for Trinidad copyright law is. All that is known is that the cultural works of Trinidad are of importance. Similarly, Trinidad copyright law requires updating to accommodate the ever-expanding use of digital works. Foreign approaches to digital copyright laws can be referenced in this regard, notably the EU’s ongoing proposals related to the development of digital copyright law and the digital single market.79 This has relevance to both Trinidad and the wider CARICOM Single Market and Economy and any other developing Commonwealth country with a hybrid copyright system. Moreover, looking to the EU as a source of inspiration for copyright development has the added incentive that EU copyright law is also hybrid given that it has had to compromise between the common law copyright countries, notably, the UK and the civil law droit d’auteur countries. Despite this, Commonwealth countries such as Trinidad have continued to predominantly rely on the UK and USA to advance their own copyright lawz. Consequently, the practical benefits of having a hybrid copyright framework have not been actualized. That aside, the fact that countries such as Trinidad do not have a definitive justification or clear direction for its copyright framework means that the use of diverse copyright and droit d’auteur ideas collectively can create incoherence. This is particularly borne out in the use of incompatible case law from different countries to achieve a single goal. The application of Trinidad copyright law in the courts has heavily relied on UK and US case law. The issue with this is that the case law relied upon is not necessarily reflective of the statutory law being invoked. Similarly, the ratio of the decisions may be based on different objectives or underlying principles that are not streamlined with Trinidad copyright law. Most of all, where multiple cases are used from different countries, they may be contradictory—as seen in Full Blown Entertainment. Thus, restricting the applicable case law to that of the UK or US restricts the development of Trinidad copyright law to Anglo-American ideals. To extract the benefits of a hybrid copyright system, it is recommended that the case law relied upon must fit the statutory basis of the country in question and must also be aligned with the underlying purpose(s) of that copyright framework. Furthermore, it is required that the application and use of foreign case law has to be interpreted in line with the scope of the country’s copyright law. For example, it would be remiss to apply US case law on fair use in Trinidad because the Trinidad Copyright Act does not employ the language or structure of ‘fair use’. Moreover, the narrow scope of its exceptions and limitations are not in accordance with the wide scope of US fair use.80 Consequently, US case law on fair use is inappropriate for the purposes of Trinidad copyright law. Likewise, care should be exercised in applying UK case law on fair dealing even though similar language is used for the exceptions and limitations, since the provisions are not exactly the same. In addition to using appropriate case law, courts should pursue a manifest goal. The pursuit of a central goal can take the form of interests such as the promotion of cultural works or the increased dissemination of knowledge. Alternatively, the goal pursued can be a general adherence to one of the traditional justifications for copyright law, for example, natural rights or an economic-based justification. Pursuing any goal will have implications for the scope and application of copyright law because it will influence how judges interpret the law, the way in which the law is made in future and subsequently how the overall copyright law develops. Adopting such an approach will allow copyright law to be tailored to suit the nuances and needs of the particular country and moreover, to achieve predetermined targets. However, attaining success in this regard will depend on consistency of policies and decision-making. If the goals are unclear, the consequence will likely be incoherent case law, as there will be no clear guiding principles to follow. Similarly, the courts must be consistent in their application of case law and the resulting interpretations of the law. In this way, the development of copyright law involves more than the cherry-picking of case law from different jurisdictions. There is need for reasoned and careful selection of case law in copyright cases to facilitate the coherent development of copyright law and gain the maximum benefits that a hybrid copyright system has to offer.81 With that in mind, it is submitted that the UK and USA should not be the sole jurisdictions relied upon for copyright case law by Commonwealth countries. It should be open to counsel and the courts to apply the case law of any jurisdiction that meet the established criteria. For example, the case law of Australia, Singapore, Canada and South Africa can be helpful. This is an achievable goal given that the courts of Commonwealth countries such as India,82 Singapore,83 and Australia84 have relied upon case law of other Commonwealth countries in their copyright decisions alongside the traditional UK and US case law. The Trinidad court in COTT v FLOW85 did attempt to apply Australian case law albeit in a limited capacity. This approach was not followed in Full Blown Entertainment. Case law of Commonwealth countries may be more advantageous to apply because of their hybridity and lesser Anglo-American focus. Alternatively, non-Commonwealth countries with hybrid copyright frameworks such as Israel also offer potential applicable case law. Therefore, the onus is on the courts of developing Commonwealth countries to harness the benefits of the hybridity of their copyright frameworks, by breaking the cycle of applying only UK and US case law for the substantive elements of copyright cases.86 However, it remains the case that the courts need to exercise caution in employing the case law. As such, the criteria concerning good statutory fit, consistency and alignment with the central goal of the copyright framework should be adhered to by judges in copyright cases.87 3.2 (Re)structuring copyright infringement case law This subsection will recommend a framework that can be adopted in cases of infringement by means of unauthorized reproductions in developing Commonwealth countries with hybrid copyright systems. As seen in Trinidad, there is no clear approach or structure to its copyright infringement proceedings. Consequently, a clear step-by-step process will be outlined including: the identification of a copyright work; what exclusive right is involved and whether its elements for infringement are met; and the availability of exceptions and limitations. Having such a framework will provide certainty to the parties engaged in copyright infringement litigation and it will also boost the efficiency of the court in making its judgments. This is because the structure of the applicable law will be clearly identifiable, thus making the process a simple one.88 From Full Blown Entertainment, it is clear that the copyright case law of Trinidad lacks a formal structure. The absence of structure relates to the random array of sources cited, the order in which the issues are addressed and the careless use of language. Additionally, the issue of infringement is preliminarily discussed before the determination of whether the subject of infringement, the phrase ‘wine with no worries’ was subject to copyright protection. Furthermore, there is no consistent use of established copyright-specific terminology.89 As a result, no coherent procedure to be used in future cases is identifiable. With this in mind, it is argued that the copyright case law of countries with hybrid copyright frameworks such as Trinidad should follow a carefully laid out structure as will be detailed below.90 The question of whether the allegedly infringed work is subject to copyright protection should be the first issue discussed. At this point, the question of subject-matter and originality should be raised. Using Trinidad as the example, section 5 of the Trinidad Copyright Act provides an open list to subject-matter, thus, the type of work is unlikely to be problematic, unless it falls within the excluded subject-matter under section 7 or is a controversial issue such as scents and tastes. It is the question of originality that provides the first real hurdle in the copyright discussion. Section 5(1) states that copyright subsists in ‘original intellectual creations’. Therefore, it is necessary for the court to establish whether the work meets the originality requirement before any further substantive discussion occurs. In doing this, it will have to be definitively stated what the originality requirement is. In Full Blown Entertainment, it was initially stated that originality means ‘original skill, labour or originality of thought’. However, the court then confusingly made the statement that a phrase may be subject to copyright protection if it was a ‘unique literary expression’.91 Therefore, it is necessary to have a single definition for originality that is clear and consistent. If the work is subject to copyright protection, the next step in an infringement case is to outline what right is infringed and whether the requirements for the infringement are met. This will take the form of whether one of the exclusive rights under section 8 or moral rights under section 18 are infringed. In a reproduction case such as Full Blown Entertainment, invoking the right was largely straightforward. However, in a case concerning communication to the public establishing infringement may not be so simple given the complexity and nuances of that right. Therefore, to be comprehensive it is necessary that the infringement be stated and its constituent elements proven. The UK cases cited in Full Blown Entertainment were relevant to this end, but Seepersad J failed to engage with their specific requirements in any detail.92 It is suggested that the cases of Francis Day & Hunter v Bron93 and Designers Guild v Russell Williams can be followed to establish the structure for determining reproduction infringement. From these two cases, the test should be that the infringing work is objectively similar to the claimant’s work with a causal link,94 be it direct or indirect derivation95 and that the copied part is a substantial part of the claimant’s work.96 Alternatively, the EU approach to reproduction infringement established in Infopaq can be used. That is, reproduction infringement will be established if the part copied ‘contains an element of the work which … expresses the author’s own intellectual creation’.97 Adopting the EU approach will require modification so that infringement will occur where an original part of the work is copied. Despite the difference in structure of these two approaches to reproduction infringement, Arnold J in SAS Institute v World Programming reconciled the two tests by arguing that part of a copied work being labelled an expression of the author’s own intellectual creation will also amount to a substantial part of the copied work.98 Therefore, it is plausible for the Trinidad courts to apply either of these tests. Apart from choosing a test definitively, it is also important to note that the supporting case law to prove infringement should not be limited to the law of the UK and USA. As discussed in the previous subsection, the case law that has the best fit should be employed. Therefore, having a clearly laid out test for infringement together with the possibility of applying case law from a wide array of jurisdictions provides for a proactive and flexible copyright infringement framework, while still maintaining certainty.99 Lastly, where infringement is established, the court should then consider the availability of any exceptions or limitations as detailed under section 9–17.100 If the proposed structure for reproduction infringement is followed, the copyright infringement case law of Trinidad will become more coherent. This has value for members of the public who have prospective claims, and it will boost the efficiency of the courts as there will be set criteria to follow. 3.3 Clarifying copyright tests Following Full Blown Entertainment, two major points of contention arose with regards to the tests employed in determining ‘originality’ and ‘substantial part’. In order to develop a coherent copyright framework, it is essential to have clear and precise standards for determining subsistence and infringement. This subsection will propose what Seepersad J should have done in Full Blown Entertainment and, in doing so, provide options for developing Commonwealth countries with hybrid copyright frameworks, so that they avoid the problems created in Trinidad’s copyright case law. The ‘originality’ requirement Seepersad J defined originality to mean ‘original skill, labour or originality of thought’.101 This interpretation departed from the traditional UK approach of labour, skill and judgment set out in Ladbroke v William Hill. Seepersad J did not engage in any discussion about what ‘original skill, labour or originality of thought’ meant, nor was any case law cited in support. As such, it is unclear what threshold was set for the ‘originality’ requirement. It is particularly an issue that the word ‘originality’ was used in the phrase ‘originality of thought’ in explaining what the concept of ‘originality’ means. It thus creates speculation whether the phrase ‘originality of thought’ equates to some notion of novelty. However, novelty has never been a requirement for copyright law.102 Furthermore, it is bad practice to define or interpret any concept by using the same word. Consequently, it is advised that the phrase ‘originality of thought’ be replaced and the overall concept of originality clarified. It is open to the court to adopt any originality standard it chooses. However, it must be clear and precise. Given that there are options available for adoption, it is unnecessary to reinvent the wheel by introducing a substantively new approach to ‘originality’. It would be more efficient to rely on an ‘originality’ standard that has been tried and tested. This can be done by employing the traditional UK approach of labour, skill and judgment, which has a long history of precedent. Alternatively, and more preferably the EU approach of author’s own intellectual creation can be adopted.103 This is the most preferable option for a hybrid copyright framework such as that of Trinidad because the EU standard, which reflects the higher civil law approach, has been applied with success in common law countries such as the UK.104 However, it has been argued that the concept of author’s own intellectual creation should be limited to photographs,105 databases,106 and computer programs107 in the context of the Directives where the phrase is expressly stated.108 Furthermore, the use of author’s own intellectual creation in Infopaq amounted to the CJEU overstepping its remit by creating/harmonizing EU law through its decisions rather than simply interpreting the existing Directives.109 Thus, author’s own intellectual creation did not qualify the UK’s long standing tradition of labour, skill and judgment.110 Despite the arguments against the concept of author’s own intellectual creation being the all-encompassing originality standard, Derclaye and Rosati have embraced the notion of author’s own intellectual creation being harmonized at the EU level for all types of works through the CJEU’s teleological interpretation of the Information Society Directive.111,112 The arguments concerning the validity of author’s own intellectual creation as the all-encompassing originality standard in the EU aside, it is open to Trinidad to adopt it as their originality standard. The originality standard must be clear, precise and used consistently for all types of copyright works. It should not be repeated as in Full Blown Entertainment that special requirements are invoked for different types of subject-matter. In considering whether the phrase ‘wine with no worries’ should attract copyright protection, Seepersad J stated that ‘no originality can be attributed to the words “wine with no worries” as the phrase was not “a unique literary expression which can attract copyright protection”’.113 The requirement of being a ‘unique literary expression’ would again suggest the imposition of a novelty requirement which has been refuted. In fact, Proudman J in NLA v Meltwater stated that it is ‘wrong in principle to suggest that the court must conduct some sort of assessment of whether the extract [newspaper headline] is itself novel or artistically worthwhile’.114 Therefore, Seepersad J should have employed the same ‘originality’ requirement that he previously set out, as well as, he should have cited Meltwater to illustrate by analogy that the lyrics of a song can attract copyright protection.115 Conversely, if UK precedent is not to be relied upon, the simple approach should have been to apply the chosen ‘originality’ threshold without the need for any further subsistence requirements. In advising developing Commonwealth countries with hybrid copyright frameworks about ‘originality’, it is advocated that there is no reason to invent a new standard. There is a plethora of academic literature and case law pertaining to established ‘originality’ thresholds, such as author’s own intellectual creation. ‘Substantial part’ Seepersad J in Full Blown Entertainment utilized two distinct approaches for the determination of a ‘substantial part’. In the first instance, reliance was placed on the UK approach following the cases of IPC Media and Coffey, adding to the discussion that what was subject to the infringement proceedings had to be capable of copyright protection. Subsequent to this, Seepersad J applied the US lay/ordinary observer test: ‘it could not be said that the Defendants took from the Claimant’s work so much of what was pleasing to the ears of the target audience or that there was an unauthorised appropriation for which the defendants should account’,116 indirectly citing McDonald v West in support.117 It has already been discussed that the UK and US cases conflict, thus, the lesson to be learnt again pertains to consistency. Going forward, the courts of developing Commonwealth countries with hybrid copyright frameworks need to clearly articulate the requirement of ‘substantial part’. Whether the UK, USA, or some other approach is adopted, courts need to carefully analyse the precedent being applied and account for its nuances and philosophical underpinnings. Having said that, a potential work around to avoid this situation is to rely on the EU approach to infringement outlined in Infopaq, whereby, if the part copied is ‘author’s own intellectual creation’ then it will amount to an infringement of the reproduction right.118 This approach is desirable because it directly links ‘originality’ with ‘substantial part’ and avoids the contentious issue of separating protectable and non-protectable elements of the work beforehand. Instead, focus is placed on the aspect that is subject to the infringement claim and its fit within the work that is infringed as a whole. However, it is worth reiterating that no aesthetic judgment should be rendered in copyright law.119 Therefore, in defining ‘substantial part’, it should be made clear that the whole work must be accounted for and aesthetic judgments should be avoided. 3.4 Training and education Whereas, the recommendations above target the restructuring of the copyright laws and its application, indirect developments are also required. This translates into increased training and education for judges and stakeholders. In developing countries where intellectual property laws continue to be esoteric in nature, there is a need for public education campaigns to raise awareness. This should be conducted throughout schools, places of commerce and to the wider public by the resident intellectual property office and/or the government. The aim of the programme should be to make individuals aware of their rights and to foster respect for the institution of intellectual property. This can be seen as a proactive approach to combatting the wonton intellectual property infringement culture seen in many developing countries. Similarly, judges also need to be trained. In countries such as Trinidad where intellectual property cases are few and far between, judges do not have much incentive to develop their knowledge in the area. This is manifested in incoherent decisions such as Full Blown Entertainment. As such, it is proposed that local judges should undergo specialist intellectual property training either through formal university education and/or (re)training by specialist judges of more experienced courts. For example, this can be facilitated through WIPO. The desired outcome of such a (re)training programme is more coherent judgments and potentially, a more efficient judicial system. However, without such a training and education intervention, it is unlikely that judges in developing countries such as Trinidad will develop the necessary copyright competencies. Conclusion Trinidad copyright law has not had the opportunity to develop primarily due to the lack of cases litigated. This was illustrated in Full Blown Entertainment where the copyright framework (or lack thereof) employed was very limited, superficial and uncertain. Thus, a critical opportunity was missed by the court in Full Blown Entertainment to get Trinidad copyright law on the track to coherence and efficiency and moreover, provide an example for other Commonwealth countries with hybrid copyright laws to follow. The consequence of this is that the potential benefits of Trinidad’s hybrid copyright framework remain untapped. As a result, this article sought to provide recommendations for the development of effective copyright jurisprudence in relation to developing Commonwealth countries with hybrid copyright systems. In the Trinidad context, Seepersad J’s penultimate paragraph in Full Blown Entertainment, appears to welcome the challenge of developing Trinidad copyright law. Therefore, it is this author’s hope that the recommendations set out in the article are contemplated upon in Trinidad and Tobago and further in other developing Commonwealth countries. Acknowledgement Thanks to Dr Althaf Marsoof and Ms Emma Perot for their comments on various drafts of this article. Footnotes 1 Full Blown Entertainment Co Ltd v Devon Matthews and others (2017) HC No Cv 2015-1073. 2 Hereafter referred to as ‘Trinidad’. 3 The UK Copyright Act 1911 was adopted across the British Empire. It is argued that this was a means of ensuring a uniform copyright regime across the Empire – U Suthersanen, ‘The first global copyright act’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 7. 4 Copyright Act 1911, Chapter 46 (UK). D Daley, ‘Shades of grey: uncovering the century old imperial imprint on Jamaica’s modern Copyright Act’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 168. 5 Copyright Act 1985, Act No 13 of 1985 (TT). 6 Copyright Act 1997, Act 8 of 1997, Chapter 82:80 (as amended by Acts 18 of 2000 and 5 of 2008) (TT). 7 Berne Convention for the Protection of Literary and Artistic Works 1971. 8 Universal Copyright Convention 1952. 9 Agreement on Trade-Related Aspects of Intellectual Property Rights 1994. 10 WIPO Copyright Treaty 1996. 11 Whiteman v Stephens & Scott (1893–1910) 1 TLR 115 (reprint 137), Columbia Pictures Industries Inc v Talib Khan (trading as ‘Video Shack’) (1983) HC No 1927 of 1983, Rawle Arthur v Roy Boyke and others (1988) HC No 503 of 1984, The Jockey Club v The Betting Levy Board (1992) HCA No 2520 of 1990, In the matter of the terms and conditions of the grant of certain general licences as defined by section 54 of the Copyright Act, 1985 And In the matter of the Copyright Act 1985 between CCN Television Ltd and Prime Radio Ltd v The Copyright Organisation of Trinidad and Tobago Ltd (1993) HCA No 499 of 1993, Rawle Arthur v Joey Lewis and Jovean Recording Ltd (1999) HCA No Cv 322 of 1984, Nation Drivers Co Ltd v The Attorney General (2011) HC No Cv 2007/1730, Copyright Music Organisation of Trinidad and Tobago v Columbus Communications Trinidad Ltd (trading as ‘Flow’) (2011) HC Cv No 4722 of 2009 and Full Blown Entertainment v Matthews (2017). 12 This logic is equally applicable to the art forms of other Commonwealth countries such as: reggae and dancehall music in Jamaica, batik in Asian and African countries and Bollywood movies in India. 13 See S Le Gall, Intellectual Property, Traditional Knowledge and Cultural Property Protection: Cultural Signifiers in the Caribbean and the Americas (Routledge 2014). 14 James describes ‘works of mas’ as the ‘most distinctive feature of the Trinidad and Tobago Copyright Act’ – V James, The Economic Contribution of Copyright-Based Industries in Trinidad and Tobago (WIPO Creative Industries Series No 7, 2012) 3.1.3. 15 It can be argued that the “works of mas” provision is only unique in name because any open list copyright or droit d’auteur system can protect what is defined as ‘works of mas’ under the Trinidad Copyright Act provided it meets the requisite originality criteria. For example, see art L112-2(14) of the French Intellectual Property Code 1992 (consolidated version of January 1, 2014). 16 Countries such as France have vibrant industries like fashion that can implicate copyright law. Alternatively, India developed its own exceptions and limitations to address its ‘social, cultural, educational and religious needs’ – TG Agitha and NS Gopalakrishnan, ‘The Imperial Copyright Act 1911 and the Indian copyright law’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 137,140. 17 This is equally applicable for any country that has an established cultural sector. 18 James (2012) 3.1.2. 19 The hybridity of the Trinidad Copyright Act is not novel, as many other Commonwealth countries have hybrid copyright frameworks including: Canada, Australia, Singapore, South Africa, and India. 20 Copyright Act 1956, Chapter 74 (UK). 21 Copyright, Designs and Patents Act 1988, Chapter 48 (UK). 22 Copyright Act 1976, Title 17 of the United States Code (USA). 23 Intellectual Property Code 1992 (consolidated version of January 1, 2014) - see Articles L111-1, L113-1, L121 and L122. 24 Trinidad follows a similar descriptive approach in expressly stating the economic rights, rather than categorizing them as ‘reproduction’ and ‘performance’ or ‘distribution’, as in France or the USA. 25 J Haynes, ‘Subject-matter of Copyright Protection in the UK: a Road Map to Effectuating Statutory Reform’ (2013) 39 Commonwealth Law Bulletin 19, 328–31. 26 Following Creation Records Ltd and others v News Group Newspapers Ltd [1997] EMLR 444 and Lucasfilm Ltd and others v Ainsworth and others [2011] UKSC 39 the UK has rigidly applied its closed list approach to subject-matter. However, it is arguable that the UK approach is obliged to move toward an open list approach following the introduction and use of the ‘author’s own intellectual creation’ as the standard for originality in Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECLI:EU:C:2009:465. See E Rosati, ‘Closed Subject-Matter Systems are no Longer Compatible with EU Copyright’ (2014) 12 GRUR Int 1112. Author’s own intellectual creation has been applied in the UK in Temple Island Collections Ltd v New English Teas Ltd [2012] ECDR 11 and SAS Institute Inc v World Programming Ltd [2010] EWHC 1829 (Ch), however, it remains to be seen whether it will override the concept of ‘work’ under s 1 of the CDPA 1988. This question may be answered by the Court of Justice of the European Union in the Dutch referred Heks'nkaas case – Case C-310/17 Levola Hengelo (referred 2017). 27 See s 10-11 of the Trinidad Copyright Act 1997. 28 This point was raised in the South African context, to state that UK case law should not be applied where the South African statute has departed from the UK approach—T Pistorius, ‘The Imperial Copyright Act 1911’s Role in Shaping South African Copyright Law’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 208. Also see: Roodepoort United Main Reef GM Co Ltd v Du Toit (1928) AD 66, 71 and Estate Wege v Strauss (1932) AD 76, 80. 29 See s18 Trinidad Copyright Act 1997 and s.77 and 80 CDPA 1988. 30 See s78 CDPA 1988. 31 See s79 and 81 CDPA 1988. 32 See s 18(3) Trinidad Copyright Act 1997 and s 87 CDPA 1988. 33 Note, it is unclear whether moral rights under Trinidad copyright law protect the ‘spirit’ of the work as in droit d’auteur countries. 34 Although Canadian copyright law resembles the UK approach, ambivalence to the UK approach has been illustrated from the beginning. This is evidenced by Canada choosing to adopt its own copyright law in lieu of the UK Copyright Act 1911—Y Gendreau, ‘No Copyright Law is an Island’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 227. Canada’s copyright Acts have generally borrowed from the UK approach and the international copyright conventions. 35 Singapore copyright law was developed using the Australian approach and indirectly, the UK approach. Furthermore, US influence is illustrated by ‘fair use’ styled exceptions and limitations—N Wee Loon, ‘The Imperial Copyright Act 1911 in Singapore: Copyright Creatures Great and Small, this Act it made them all’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013). 36 Australian copyright law can be said to be the result of endogenous solutions, so that any mistakes were truly Australian—S Ricketson, ‘The Imperial Copyright Act 1911 in Australia’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 82. 37 South African copyright law largely resembles UK copyright law except where it has followed the Paris Revision of the Berne Convention – Pistorius in Suthersanen and Gendreau (2013) 207. 38 Daley in Suthersanen and Gendreau (2013) 170. 39 Full Blown Entertainment v Matthews (2017) para 85. Also, note that Trinidad and Tobago was placed on the IPR ‘Watch List’ published in: USTR, 2013 Special 301 Report (2013) <https://ustr.gov/sites/default/files/05012013%202013%20Special%20301%20Report.pdf> accessed 21 May 2017. 40 Full Blown Entertainment v Matthews (2017) para 85. 41 To date, there have been nine copyright cases, thirteen trade mark cases and two patent cases that have been fully litigated before Trinidad courts. 42 Full Blown Entertainment v Matthews (2017) para 85. 43 This situation is not unique to Trinidad as Commonwealth countries like New Zealand also experience low usage of copyright laws—G McLay, ‘New Zealand and the Imperial Copyright Tradition’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 32. 44 Full Blown Entertainment v Matthews (2017) para 70. 45 ibid para 72. 46 ibid para 71. 47 ibid. 48 See Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273. 49 The traditional requirement for copyright protection has been ‘originality’. Although the threshold varies by country, it is agreeable that for a work to be protected it must not have been copied from another work—University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601, 608. In other words, it was independently created. This is well explained in using a concept such as “author’s own intellectual creation” as employed by the CJEU - Infopaq [2009]. 50 Full Blown Entertainment v Matthews (2017) para 78. 51 Seepersad J should have begun his analysis with whether copyright subsisted in the subject-matter that was subject to the claim for infringement and then how the defendant’s work was created. It is perhaps arguable that the drafting of the infringement claim was equally unclear and thus gave rise to this problem. 52 Designers Guild Ltd v Russell Williams (Textiles) Ltd [2001] FSR 11. 53 Full Blown Entertainment v Matthews (2017) para 36. 54 From the decision, it is not clear that the court is following any particular formula or precedent to establish infringement. Rather, the judgement appears to be exploring options for how infringement should be determined. 55 The UK cases cited include: Creagh v Hit and Run Publishing Ltd [2002] EWHC 2512, Baigent and another v Random House Group Ltd [2007] EWCA Civ 247, Designers Guild v Russell Williams [2001], IPC Media Ltd v Highbury-Leisure Publishing Ltd [2004] EWHC 2985 (Ch) and Elizabeth Coffey v Warner/Chappell Music Ltd [2006] EWHC 449 (Ch). 56 The US cases cited include: Laureyssens v Zdia Group Inc (1992) 964 F 2d 131, Repp v Webber (1997) 132 F 3d 882 and Joel McDonald v Kanye West (2016) 15-3489cv. 57 K Garnett, G Davies and G Harbottle (eds), Copinger and Skone James on Copyright (Fifteenth Edition, Sweet & Maxwell Ltd 2004). 58 E Derclaye (ed), Halsbury’s Laws of England – Copyright (2016) Volume 23. 59 Full Blown Entertainment v Matthews (2017) paras 22-36. 60 ibid para 78. 61 Arnstein v Porter (1946) 154 F 2d 464, 473. 62 Seepersad J cites McDonald v West (2015) 138 F Supp 3d 448 in support. McDonald v West cites Repp v Webber (1997) 132 F 3d 882 and Arnstein on this point. 63 L Kurtz, ‘The Scope of Copyright Protection in the United States’ (1995) 6(3) Ent LR 88, 92–93. 64 Apple Computer Inc v Microsoft Corp and Hewlett-Packard Co (1991) 779 F Supp 133, 135. 65 Computer Associates International Inc v Altai Inc (1995) 982 F 2d 693, para 8. 66 McDonald v West (2015) para 19. 67 ibid para 24. 68 B Sookman, ‘Copyright Law: Rights of Reproduction, “Substantiality” and Fair Dealing by the Supreme Court in Robinson v Cinar’ (2014) 20(3) CTLR 83, 84–87. 69 IPC Media [2004] paras 11 and 22 and Coffey v Warner [2006] paras 9–13. 70 Note, this applies more widely to the general US approach to establishing reproduction infringement and its determination of what constitutes a substantial part. 71 A further point of contention between the UK and US approaches can be raised in relation to the idea of what is aesthetically pleasing. Following Hadley v Kemp, argument can be made that an aesthetically pleasing or memorable part of a song will not necessarily amount to copyright protection or consequently infringement – Hadley and others v Kemp and another [1999] EMLR 589. 72 Altai (1995) para 9 73 Henry Denker v Alfred Uhry and others (1992) 820 F Supp 722, para 5. 74 Full Blown Entertainment v Matthews (2017) para 85. 75 Commonwealth countries such as India have experienced or are experiencing very similar issues to those raised in Full Blown Entertainment – N Ahmad and S Chaturvedi, ‘Originality Requirement and Copyright of Music: a Comparative Overview of Indian Perspective’ (2013) 19 CTLR 209. 76 Full Blown Entertainment v Matthews (2017) para 85. 77 The copyright needs and concerns of developing countries have historically been an issue for the development of copyright law at the international level—S Ricketson and J Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (Oxford University Press 2006) 3.64. 78 As opposed to legally transplanting substantive parts of the copyright law of another country. 79 See Commission, Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (COM (2016) 593 final, 2016) and Commission, Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes (COM (2016) 594 final, 2016). 80 This will however be more relevant for Jamaica and Barbados that interpret ‘fair dealing’ using the US ‘fair use’ criteria. 81 This is in contrast to the approach seen in Full Blown Entertainment where the conflicting cases of IPC Media, Coffey and McDonald v West were applied with no attempt at reconciliation. 82 See The Chancellor, Masters & Scholars of the University of Oxford and others v Rameshawari Photocopy Services and another (2016) CS(OS) No 2439/2012. 83 See RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and others [2010] SGCA 43. 84 See ICETV Pty Ltd and another v Nine Network Australia Pty [2009] HCA 14. 85 Copyright Music Organisation of Trinidad and Tobago v Columbus Communications Trinidad Ltd (trading as ‘FLOW’) (2011) para 49. 86 It is accepted that the foundation of some jurisdictions’ case law may be rooted in UK or US law, however, this is not the case for all aspects of copyright law. If it is the case that UK or US law meet the criteria for the application of case law in a specific case then that should be followed. 87 Recommendations to develop and achieve the potential of the hybrid Trinidad copyright framework exceeds the scope of this article. As such, this is an introduction to what is required. 88 For a similar approach see the Rosati Checklist - E Rosati, ‘Stuggling to understand how to address a copyright infringement issue?’ (IPKat, 24 November 2014) <http://ipkitten.blogspot.co.uk/2014/11/struggling-to-understand-how-to-address.html> accessed 25 April 2018. 89 For example, the court failed to use key terms such as ‘substantial part’ and ‘independent creation’, instead, opting for ‘unauthorised appropriation for which the Defendants should account’ and ‘independent provenance’. 90 The individual tests to be used and their resultant thresholds will be discussed in the next subsection. 91 Full Blown Entertainment v Matthews (2017) para 71. 92 ibid para 78. 93 Francis Day & Hunter Ltd and another v Bron and another [1963] Ch 587. 94 The issue of causal link was discussed in paragraphs 80-81 of Full Blown Entertainment as an afterthought. 95 This includes conscious and unconscious copying. 96 See Francis Day & Hunter v Bron [1963] 611–15 (per Willmer LJ) and Designers Guild v Russell Williams [2001] paras 38–41 (per Lord Millett). 97 Infopaq [2009] para 48. 98 SAS Institute v World Programming [2010] para 243. 99 Allowing the use of case law from a range of countries is desirable because it increases the pool of experience from which judges can draw. This is particularly helpful in cases involving new technologies or controversial subject-matter. 100 It is worth noting that for Trinidad case law to have persuasive weight in other Commonwealth Caribbean islands such as Jamaica and Barbados, it is necessary to consider US case law and its fair use approach. See s.54 Copyright Act, Act 5 of 1993 (Jamaica) and s.53 Copyright Act, Chapter 300 of 1998 (Barbados) that adopt the US ‘fair use’ approach for the interpretation of the ‘fair dealing’ defences. 101 Full Blown Entertainment v Matthews (2017) para 71. 102 University of London Press v University Tutorial Press [1916] 608-609. Should a novelty requirement be introduced into copyright law this will have implications for the idea/expression dichotomy and the protection of works in the future. A monopoly type situation on works will be created similar to patent law, thus changing the operation of copyright law. 103 This approach is gaining traction in the UK where courts have been increasingly open to its application and moreover, it can be used for both subsistence and infringement. 104 See SAS Institute [2010] and Temple Island [2012]. 105 Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version), OJ L 372/12. See Recital 16. 106 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77/20. See art 3(1). 107 Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (codified version), OJ L 111/16. See art 1(3). 108 A Rahmatian, ‘Originality in UK Copyright Law: the Old “Skill and Labour” Doctrine Under Pressure’ (2013) 44 IIC 4, 6 and S Vousden, ‘Infopaq and the Europeanisation of Copyright Law’ (2010) 1 WIPO Journal 197, 201. 109 Rahmatian, ibid 6. 110 Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others [2011] EWCA Civ 890, para 20 (per Sir Andrew Morritt C). 111 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167/10. 112 E Derclaye, ‘Infopaq International A/S v Danske Dagblades Forening (C-5/08): Wonderful or Worrisome? The Impact of the ECJ Ruling in Infopaq on UK Copyright Law’ (2010) 32 EIPR 247, E Rosati, ‘Originality in a Work, or a Work of Originality: the Effects of the Infopaq Decision’ (2011) 33 EIPR 746, 749 and 754 and E Rosati, Originality in EU Copyright: Full Harmonization through Case Law (Edward Elgar Publishing 2013). 113 Full Blown Entertainment v Matthews (2017) para 71. 114 Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others [2010] EWHC 3099 (Ch) para 80 (per Proudman J) and Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others [2011] EWCA Civ 890, para 22 (per Sir Andrew Morritt C). 115 NLA v Meltwater [2010] para 71 (per Proudman J), affirmed by Sir Andrew Morritt C in the Court of Appeal – NLA v Meltwater [2011] para 22. 116 Full Blown Entertainment v Matthews (2017) para 78. 117 Indirect support because McDonald v West is not stated in para 78 where the test from the case is used. 118 Infopaq [2009] para 48. 119 NLA v Meltwater [2010] para 80 (per Proudman J). © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Intellectual Property Law & Practice Oxford University Press

Full Blown Entertainment: a missed opportunity for advancing the copyright law of developing Commonwealth countries with hybrid copyright systems

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1747-1532
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Abstract

This author Justin Koo is a Lecturer in Law at The University of the West Indies, St Augustine. This article Trinidad and Tobago’s ninth copyright case, Full Blown Entertainment, was a welcome development. However, the actual decision delivered amounted to a missed opportunity to create desirable precedent to follow in developing Commonwealth countries with hybrid copyright acts based on UK law. As such, the shortcomings of the case are critically analysed and comments for the future development of copyright law in developing Commonwealth countries with hybrid copyright systems are offered. This article sets out to provide lessons for the development of copyright law in developing Commonwealth countries with hybrid copyright systems, using Full Blown Entertainment v Matthews1 as a case study. With this aim in mind, the article is divided into three parts. The first section addresses the context in which Trinidad and Tobago2 copyright law has developed and its consequential hybrid nature. The second section focuses on the structure and substance of the Full Blown Entertainment case. The key aspects of Seepersad J’s decision are highlighted; notably, emphasis is placed on the structure of the decision, the tests employed in finding infringement and the case law used. The third section addresses the problems identified in section two by providing recommendations. They concern: designing an effective hybrid copyright framework; restructuring the framework for copyright infringement; clarifying the tests employed in the determination of copyright subsistence and infringement; and providing training and education for the public and judges. Taken together, these recommendations will provide the means to develop a more coherent copyright law framework for Trinidad and other developing Commonwealth countries with hybrid copyright laws influenced by UK jurisprudence. 1 Trinidad copyright context Trinidad copyright law has its roots in the UK Copyright Act 19113 that was directly applicable.4 The first domestic copyright law statute in Trinidad was the Copyright Act 1985.5 This was later replaced by the Copyright Act 1997,6 which has undergone two amendments to date. In addition to this, Trinidad is signatory to the Berne Convention,7 the Universal Copyright Convention,8 the TRIPS Agreement,9 and the WIPO Copyright Treaty.10 Therefore, copyright law is not a recent development in Trinidad. However, Trinidad courts have only heard nine copyright cases so far.11 Copyright law serves as the primary means of protection for Trinidad’s unique art forms associated with its famous carnival, namely its ‘calypso’ and ‘soca’ music and its carnival costumes together with any associated fine or applied art.12 These art forms are an integral part of the country’s history, culture and identity.13 This is reflected to the extent that a provision on ‘works of mas’14 was pioneered under section 6(1)(c) of the 1997 Copyright Act.15 Consequently, the development of Trinidad copyright law must account for three primary interests—authors, users and culture. While the importance of art and music to Trinidad does not create a unique situation in the international copyright context,16 it is still imperative to state the importance of culture because it ought to be accounted for in equal terms to the concerns of authors/owners and users. Thus, any development in Trinidad copyright law must reflect a predisposition for the protection of local art forms.17 It is also the case that the 1997 Trinidad Copyright Act is hybrid.18 By hybrid, it is meant that Trinidad copyright law encompasses elements from different sources. This includes copyright elements from the UK statute and case law, international copyright treaties and more recently US copyright statute and case law. Thus, Trinidad copyright law has departed from its strict adherence to UK copyright law, similarly to many other Commonwealth countries.19 Unlike the 1985 Trinidad Copyright Act that was based on the 1956 UK Copyright Act,20 the 1997 Trinidad Copyright Act incorporates aspects of both common law copyright and civil law droit d’auteur through its obligations under international treaties, thus differentiating it from the most recent 1988 UK Copyright, Designs and Patents Act.21 There are multiple examples that can be used to illustrate the hybrid nature of the Trinidad Copyright Act: the core concepts of subject-matter; exceptions and limitations; moral rights; and the overall structure of the Act. The structure of the Trinidad Copyright Act remains more reflective of the UK approach than a civil law approach. However, its layout includes a definition section at the beginning similar to the US Copyright Act.22 Furthermore, unlike the civil law droit d’auteur statutes and codes that place more importance on authorship/ownership and moral rights, the Trinidad Copyright Act, like the UK Act, focuses on the economic rights. This difference is portrayed by the placement of the provisions in the statutes and the number of exclusive rights available. If the French IP Code23 is examined, it is seen that both authorship/ownership and moral rights are discussed before the economic rights or ‘patrimonial rights’ as it is termed in the French IP Code. Similarly, the French IP Code only lists two economic rights, reproduction and performance. This is in contrast to the UK that lists: reproduction, distribution, rental and lending, public performance, communication to the public and adaptation.24 These differences are attributable to the differences in the rationale underpinning the protection of copyright. Whereas, in civil law countries like France, droit d’auteur is rooted in natural rights and authorial protection, in contrast common law copyright can be said to have a more economic justification. This philosophical difference equally translates to the substance of the rights in the various statutes, which brings the issue back to the hybridity of the Trinidad Copyright Act. Despite the resemblance in structure, the Trinidad Copyright Act has departed from the UK approach in its substance. Such departure is noticeable with regard to subject-matter, moral rights and exceptions and limitations. The Trinidad Copyright Act employs an open list toward subject-matter similar to droit d’auteur countries and the USA.25 This is discernible from section 5(1) of the Trinidad Copyright Act that provides a non-exhaustive list of subject-matter given that the phrase ‘Copyright is a property right which subsists in literary and artistic works … including in particular–’. This finding is reinforced by section 5(2) that states: ‘works shall be protected by the sole fact of their creation and irrespective of their mode or form of expression, as well as of their content, quality and purpose’. Thus, setting it aside from traditional UK copyright law that employs an exhaustive list of copyright works.26 The consequence of this is that any work that is original can be potentially protected under Trinidad copyright law. As for exceptions and limitations, the issue is more convoluted. A narrow list of exceptions is provided under section 9–17 of the Trinidad Copyright Act. This narrow approach to exceptions and limitations is reminiscent of the droit d’auteur approach, as opposed to the extensive list of the UK CDPA 1988, section 28–76. However, the Trinidad copyright exceptions employ a wording similar to the UK CDPA 1988, including the use of the term ‘fair dealing’.27 The problem this poses for Trinidad courts is determining how wide the scope of the exceptions and limitations should be construed. In this matter, caution will have to be exercised in using UK case law to support the application of the Trinidad copyright statute because the substance of the rights may be different despite similarities in language or terminology.28 Lastly, in terms of moral rights, Trinidad copyright law has provided more extensive protection than the UK CDPA 1988. Although the moral rights available are the same in principle, the right to attribution and the right to integrity,29 the operation of the rights are different. There is no requirement in the Trinidad Act for assertion to activate the right to attribution30 and no exceptions to the rights.31 However, the option of waiving the moral rights is present.32 From this, elements of both the civil law approach to moral rights and the UK approach are conflated.33 In looking at how Trinidad copyright law has diverged from its UK roots via its hybridity, the ultimate conclusion points in the direction of caution in using foreign case law to support the application of Trinidad copyright law. It must also be emphasized that Trinidad courts must understand that they are not necessarily bound to the principles of UK copyright law. Having said that, there is much to learn from the established copyright and droit d’auteur laws of other countries, in particular, other Commonwealth countries that have developed hybrid copyright systems, including Canada,34 Singapore,35 Australia36 and South Africa.37 Furthermore, the Trinidad experience following Full Blown Entertainment can provide valuable lessons to other developing Commonwealth countries with hybrid frameworks, in their pursuit of advancing copyright laws. In particular, other Commonwealth Caribbean countries like Jamaica and Barbados that have departed from the UK statutory approach, toward an approach that resembles the one of the USA.38 Despite the importance of copyright law for the protection of the domestic cultural art forms and other works in Trinidad and the potential to develop an effective hybrid copyright system, its use has been limited. There is an ongoing flagrant disregard for copyright law, manifesting itself in the form of mass sales of unauthorized copies of films, music and video games, unauthorized uses of photographs and films in various forms of media and an abhorrence to paying collective licensing fees.39 Perhaps the continued disregard for copyright law is partly attributable to the lack of enforcement, but it is equally plausible to argue that lack of awareness of intellectual property rights is to blame.40 This is evidenced by the small number of copyright cases and, generally, intellectual property cases.41 Seepersad J in Full Blown Entertainment alludes to the lack of cases in the penultimate paragraph of his judgment stating that the bringing of a copyright case before the courts should be applauded and furthermore, going forward there is a need for increased sensitization, appreciation and awareness of intellectual property rights.42 From these statements, it can be inferred that copyright law in Trinidad continues to be esoteric. The consequence of the failure to enforce and develop copyright law in Trinidad and Tobago is not limited to lost financial opportunities, but includes the loss of an opportunity to create and hone a hybrid copyright system that can serve as a model for developing Commonwealth countries with hybrid frameworks. Despite Trinidad’s British colonial history, its foray into a hybrid copyright system has provided the possibility of forging a new or different approach to copyright law that can be tailored to the nuanced needs and desires of the country. However, the fact that Trinidad courts have not had many opportunities to develop its approach to copyright law has largely stalled any judicial and statutory progress.43 The consequences of this are seen in Full Blown Entertainment, the most recent copyright decision in Trinidad and Tobago. 2 Full Blown Entertainment v Matthews Full Blown Entertainment was the first copyright case involving indigenous ‘soca’ music and only the ninth copyright case in Trinidad. Furthermore, the decision was the first case to discuss substantive elements of Trinidad copyright law. The claimant contended that his song ‘No worries’ had been copied by the defendant’s identically titled song. The claim for infringement centred around similarity in lyrical content. It was argued that the defendant copied the phrase ‘wine with no worries’44 and sung this phrase in a similar manner and melody.45 Seepersad J concluded that there was no infringement of copyright in the claimant’s song. Addressing the words ‘wine with no worries’ first, Seepersad J argued that there is no ‘original skill, labour or originality of thought’ associated with those words.46 This claim was supported by the fact that the words themselves are commonplace in the ‘soca’ music genre.47 As a matter of the facts and law before the court, this was the right decision. However, two interesting points arise. It was curious to see the judge depart from the traditional phrase ‘labour, skill and judgement’ that is common to the UK copyright case law.48 It is uncertain whether this was a deliberate move to set an ‘originality’ threshold different to that of the UK approach or simply an interchangeable use of language. Furthermore, the concluding sentence of paragraph 71 seemingly left it open that phrases can be subject to copyright protection in Trinidad. Seepersad J stated: ‘the phrase is not a unique literary expression which can attract copyright protection’. From this, it appears that a ‘unique literary expression’ can be subject to copyright protection. The use of the word ‘unique’, prima facie suggests some essence of novelty. However, this has never been a requirement for copyright law. Therefore, it is uncertain what threshold this sets for copyright protection.49 Moreover, the uncertainty extends to the question whether there is conflict between the phrase ‘unique literary expression’ and the ‘originality’ requirement previously expressed: ‘original skill, labour or originality of thought’. It is unknown whether ‘unique literary expression’ comes within the scope of ‘originality of thought’ or whether a separate threshold is established for the protection of phrases. Consequently, there is a need to clarify the ‘originality’ requirement under Trinidad copyright law. In terms of the melody and delivery of the phrase ‘wine with no worries’, the judge also found no infringement. It was held that ‘it could not be said that the defendants took from the claimant’s work so much of what was pleasing to the ears of the target audience or that there was an unauthorised appropriation for which the defendants should account’.50 The reasoning used by the court in support of this conclusion is convoluted because of its interchangeable use of different infringement standards coupled with the lack of a coherent structure for establishing infringement. The lack of structure is evidenced by the haphazard order of discussion. For example, Seepersad J discussed whether the defendant independently created his work after discussing whether a substantial part of the claimant’s work had been copied.51 This made no sense because an initial finding of independent creation would have made the discussion on substantial part unnecessary and irrelevant. This issue could have been avoided given that Seepersad J cited the decision of the House of Lords in Designers Guild52 in his preliminary discussion,53 which in turn could have been used to provide the structure for determining infringement. For example, the issue of independent creation could have been addressed under the second limb of Designers Guild concerning derivation/access rather than an afterthought. However, it remains the case that the decision lacks a formal structure concerning how to approach infringement proceedings.54 Several UK55 and US56 cases, Copinger57 and Halsbury’s Laws on Copyright58 were cited for the potential establishment of a formal process to address infringement.59 Yet, the actual decision is void of any helpful structure. This is attributable to the courts’ failure to apply these sources in further detail. Furthermore, the lack of domestic copyright case law has not allowed the courts to explore the area of law in any detail. Nonetheless, it is necessary that a formal structure be established. Beyond the lack of structure, Full Blown Entertainment also suffers from particular inconsistencies due to the case law used. At paragraph 73, the UK cases IPC Media and Coffey are cited in support of a preliminary finding of no infringement. Subsequent to this, at paragraph 78, the US standard of ‘what was pleasing to the ears of the target audience’ was used for the ultimate conclusion. All of these cases were used for the purpose of establishing a ‘substantial part’ in order to prove infringement. However, this was not explained, nor was any substantive analysis of the cases conducted. With regards to the UK cases, Coffey is discussed at paragraphs 28–31. However IPC Media is merely noted without any formal citation or referencing. Furthermore, the actual basis for the decision that ‘it could not be said that the defendants took from the claimant’s work so much of what was pleasing to the ears of the target audience or that there was an unauthorized appropriation for which the defendants should account’,60 was not accompanied by any discussion. In fact, paragraph 78 where this standard was applied, did not cite McDonald v West, from which Seepersad J derived the reasoning. This is of serious concern because the use of the US case McDonald v West is subject to three significant criticisms. First, the phrase ‘it could not be said that the defendants took from the claimant’s work so much of what was pleasing to the ears of the target audience’, the so-called ‘lay/ordinary observer test’, was derived from the US case Arnstein.61 Added to the fact that Arnstein is not cited or discussed in the judgment by Seepersad J,62 it is centrally important to note that Arnstein has been subjected to conflicting judicial treatment.63 In Apple Computer v Microsoft Corp,64 the court dismissed the approach to infringement, whereby non-protectable elements of a copyright work should be disregarded for the purposes of a copyright infringement case. Instead, the work as a whole should be looked at for the purpose of determining infringement.65 However, this concern could have been avoided by means of a more extensive analysis of McDonald v West. The court in McDonald v West alluded to the ‘more discerning observer test’66 and also discussed the holistic comparison of the competing works.67 Consequently, the manner in which McDonald v West is used by Seepersad J is restrictive and fails to convey its nuanced reasoning. Therefore, Seepersad J’s use of McDonald v West without any context or further discussion undermines the value of the precedent set in Full Blown Entertainment. However, it should be noted that the issue of substantial part for copyright infringement in US courts remains a contentious debate.68 Secondly, the cases of IPC Media and Coffey conflict with the way McDonald v West is used by Seepersad J. This is because the precedent behind IPC Media and Coffey states that individual aspects of a copyright work should not be isolated for the purpose of determining copyright infringement.69 This is in contrast to Seepersad J’s use of McDonald v West where he limited the precedent to focusing on the aesthetically pleasing elements of the copyright work through the lay/ordinary observer test.70 As such, there is conceptual conflict between the cases used.71 Seepersad J failed to note or engage with this conflict and thereby, carelessly creates an unnecessary conundrum for Trinidad copyright law, which undermines the value of the decision. Consequently, the issue of case law inconsistency arises. Thirdly, if the lay/ordinary observer test as applied in McDonald v West is to be relied on, then Seepersad J makes a fundamental error in allowing expert testimony in Full Blown Entertainment. This point has been the subject of much debate in US courts. However, following Altai72 and Denker73 it would appear that where the lay/ordinary observer test is applied for the purpose of determining a substantial part, the use of expert evidence is irrelevant because the finding is to be made on the basis of an ordinary person in the street with no expert knowledge. Again, this issue could have been avoided by means of a more substantive analysis of the case law relied upon. Thus far, this section isolated the key aspects of the Full Blown Entertainment decision and highlighted several issues. However, the penultimate paragraph of the judgment deserves equal treatment. Seepersad J stated that despite the claimant being unsuccessful, the bringing of an intellectual property claim should be applauded.74 This contextualizes the whole judgment and its problems. As previously mentioned this case was the first ‘soca’ copyright case and the only substantive copyright decision handed down in Trinidad. Seepersad J’s statement confirmed the comment that Trinidad courts have not had a real opportunity to develop its copyright jurisprudence. This is evidenced by the absence of a formal structure for infringement proceedings and the uncertainty about what precedent and tests should be used. Moreover, the back and forth citation of US and UK case law as potential support for the decision making of the court demonstrates the current legal-limbo facing Trinidad copyright law. However, it is not necessarily a bad thing for Trinidad copyright law to be in legal-limbo given its largely infantile stage of development. Instead, Trinidad copyright law can craft its own unique copyright system to reflect its nuances. The primary benefit of this is the ability to learn lessons from other copyright jurisdictions.75 While the best-known jurisdictions may be the UK and US for common law copyright, the countries that have hybrid copyright systems such as Australia, Canada, Singapore and South Africa should also be looked at. It remains the case that the hybrid copyright framework for Trinidad copyright law has much to offer. Another advantage to the infant nature of copyright law in Trinidad is the ability to mould its own copyright jurisprudence. While the statutory law is already in existence, the courts have a wide scope to interpret the statute to suit the needs of the country and its local creative industries. There are no rules or obligations binding Trinidad courts to follow precedent from a specific jurisdiction in relation to copyright law. This is compounded by the fact that the Trinidad copyright statute is hybrid. Despite the general tendency to follow the laws of the UK, the Trinidad Copyright Act has departed in numerous instances as discussed in Section 1, but maintains several features reminiscent of UK copyright law including the general structure and layout of the Act. Similarly, the Trinidad Copyright Act has a unique provision concerning the protection of ‘works of mas’ under section 6(1)(c) of the Trinidad Copyright Act. In this instance, there is no precedent to rely on. Consequently, Trinidadian courts largely have a blank canvas to develop their copyright law. Thus, the question to be answered is what is the best way forward for Trinidad copyright law and by extension what lessons can be learnt by other developing Commonwealth countries with hybrid frameworks. Section 3 will provide some recommendations to this end. It is worth recalling the words of Seepersad J to inform the discussion of developing Trinidad copyright law. In his penultimate paragraph, he emphasized the need to sensitise and expose individuals to intellectual property and its importance, particularly in the local creative industries and by extension he called for an increase in domestic stakeholders enforcing their intellectual property rights.76 This plea would appear to be an invitation to help develop Trinidad copyright law and in doing so boost the sophistication and protection of the creative industries within the country. 3 The way forward The decision in Full Blown Entertainment raises several concerns about the copyright law of Trinidad. In particular, the lack of expertise and absence of rules to follow was identified. In moving forward, it is proposed that the following four themes be addressed to facilitate the development of Trinidad copyright law and moreover the copyright law of any other developing Commonwealth country with a hybrid copyright system: Crafting and maximizing a hybrid copyright framework (Re)structuring copyright infringement case law Clarifying tests used Training and education 3.1 Crafting and maximizing a hybrid copyright framework The Trinidad Copyright Act incorporates aspects of Anglo-American copyright law and civil droit d’auteur. However, despite the hybrid nature of Trinidad copyright law, there is still a UK-centric focus in its application and support. This is demonstrated in Full Blown Entertainment where the majority of sources relied upon were from the UK. The consequence of this is that the full value of a hybrid copyright system is not being realized at present. The benefits of a hybrid copyright system are twofold. Firstly, it allows lawmakers to tailor the copyright system to suit the needs of the country in question. This is important for developing countries that have specific copyright needs.77 Moreover, it allows that country to foster its own philosophical underpinning to guide its copyright law.78 In the context of Trinidad, this has significance for the protection of local cultural works. The consequence of this may be specific laws like the ‘works of mas’ provision. For example, the copyright law of Trinidad may be designed to offer owners of cultural works more stringent protection to encourage more investment. Alternatively, copyright law may be tweaked to allow for freer dissemination of cultural works through broader exceptions and limitations with the intention of showcasing national culture. The second benefit is that a hybrid copyright law has allows for hindsight, whereby lessons learned from other copyright systems can be employed. In this way, incoherent developments in law can be avoided. For example, Trinidad copyright law can be tweaked to avoid definitional issues or the interpretation of a provision can be devised in a way to circumvent/prevent copyright inconsistency and/or incoherence. However, the hybridity of Trinidad copyright law has not really manifested these benefits. It is still unknown what the theoretical underpinning of the Trinidad Copyright Act is and moreover, it is uncertain what the desired direction for Trinidad copyright law is. All that is known is that the cultural works of Trinidad are of importance. Similarly, Trinidad copyright law requires updating to accommodate the ever-expanding use of digital works. Foreign approaches to digital copyright laws can be referenced in this regard, notably the EU’s ongoing proposals related to the development of digital copyright law and the digital single market.79 This has relevance to both Trinidad and the wider CARICOM Single Market and Economy and any other developing Commonwealth country with a hybrid copyright system. Moreover, looking to the EU as a source of inspiration for copyright development has the added incentive that EU copyright law is also hybrid given that it has had to compromise between the common law copyright countries, notably, the UK and the civil law droit d’auteur countries. Despite this, Commonwealth countries such as Trinidad have continued to predominantly rely on the UK and USA to advance their own copyright lawz. Consequently, the practical benefits of having a hybrid copyright framework have not been actualized. That aside, the fact that countries such as Trinidad do not have a definitive justification or clear direction for its copyright framework means that the use of diverse copyright and droit d’auteur ideas collectively can create incoherence. This is particularly borne out in the use of incompatible case law from different countries to achieve a single goal. The application of Trinidad copyright law in the courts has heavily relied on UK and US case law. The issue with this is that the case law relied upon is not necessarily reflective of the statutory law being invoked. Similarly, the ratio of the decisions may be based on different objectives or underlying principles that are not streamlined with Trinidad copyright law. Most of all, where multiple cases are used from different countries, they may be contradictory—as seen in Full Blown Entertainment. Thus, restricting the applicable case law to that of the UK or US restricts the development of Trinidad copyright law to Anglo-American ideals. To extract the benefits of a hybrid copyright system, it is recommended that the case law relied upon must fit the statutory basis of the country in question and must also be aligned with the underlying purpose(s) of that copyright framework. Furthermore, it is required that the application and use of foreign case law has to be interpreted in line with the scope of the country’s copyright law. For example, it would be remiss to apply US case law on fair use in Trinidad because the Trinidad Copyright Act does not employ the language or structure of ‘fair use’. Moreover, the narrow scope of its exceptions and limitations are not in accordance with the wide scope of US fair use.80 Consequently, US case law on fair use is inappropriate for the purposes of Trinidad copyright law. Likewise, care should be exercised in applying UK case law on fair dealing even though similar language is used for the exceptions and limitations, since the provisions are not exactly the same. In addition to using appropriate case law, courts should pursue a manifest goal. The pursuit of a central goal can take the form of interests such as the promotion of cultural works or the increased dissemination of knowledge. Alternatively, the goal pursued can be a general adherence to one of the traditional justifications for copyright law, for example, natural rights or an economic-based justification. Pursuing any goal will have implications for the scope and application of copyright law because it will influence how judges interpret the law, the way in which the law is made in future and subsequently how the overall copyright law develops. Adopting such an approach will allow copyright law to be tailored to suit the nuances and needs of the particular country and moreover, to achieve predetermined targets. However, attaining success in this regard will depend on consistency of policies and decision-making. If the goals are unclear, the consequence will likely be incoherent case law, as there will be no clear guiding principles to follow. Similarly, the courts must be consistent in their application of case law and the resulting interpretations of the law. In this way, the development of copyright law involves more than the cherry-picking of case law from different jurisdictions. There is need for reasoned and careful selection of case law in copyright cases to facilitate the coherent development of copyright law and gain the maximum benefits that a hybrid copyright system has to offer.81 With that in mind, it is submitted that the UK and USA should not be the sole jurisdictions relied upon for copyright case law by Commonwealth countries. It should be open to counsel and the courts to apply the case law of any jurisdiction that meet the established criteria. For example, the case law of Australia, Singapore, Canada and South Africa can be helpful. This is an achievable goal given that the courts of Commonwealth countries such as India,82 Singapore,83 and Australia84 have relied upon case law of other Commonwealth countries in their copyright decisions alongside the traditional UK and US case law. The Trinidad court in COTT v FLOW85 did attempt to apply Australian case law albeit in a limited capacity. This approach was not followed in Full Blown Entertainment. Case law of Commonwealth countries may be more advantageous to apply because of their hybridity and lesser Anglo-American focus. Alternatively, non-Commonwealth countries with hybrid copyright frameworks such as Israel also offer potential applicable case law. Therefore, the onus is on the courts of developing Commonwealth countries to harness the benefits of the hybridity of their copyright frameworks, by breaking the cycle of applying only UK and US case law for the substantive elements of copyright cases.86 However, it remains the case that the courts need to exercise caution in employing the case law. As such, the criteria concerning good statutory fit, consistency and alignment with the central goal of the copyright framework should be adhered to by judges in copyright cases.87 3.2 (Re)structuring copyright infringement case law This subsection will recommend a framework that can be adopted in cases of infringement by means of unauthorized reproductions in developing Commonwealth countries with hybrid copyright systems. As seen in Trinidad, there is no clear approach or structure to its copyright infringement proceedings. Consequently, a clear step-by-step process will be outlined including: the identification of a copyright work; what exclusive right is involved and whether its elements for infringement are met; and the availability of exceptions and limitations. Having such a framework will provide certainty to the parties engaged in copyright infringement litigation and it will also boost the efficiency of the court in making its judgments. This is because the structure of the applicable law will be clearly identifiable, thus making the process a simple one.88 From Full Blown Entertainment, it is clear that the copyright case law of Trinidad lacks a formal structure. The absence of structure relates to the random array of sources cited, the order in which the issues are addressed and the careless use of language. Additionally, the issue of infringement is preliminarily discussed before the determination of whether the subject of infringement, the phrase ‘wine with no worries’ was subject to copyright protection. Furthermore, there is no consistent use of established copyright-specific terminology.89 As a result, no coherent procedure to be used in future cases is identifiable. With this in mind, it is argued that the copyright case law of countries with hybrid copyright frameworks such as Trinidad should follow a carefully laid out structure as will be detailed below.90 The question of whether the allegedly infringed work is subject to copyright protection should be the first issue discussed. At this point, the question of subject-matter and originality should be raised. Using Trinidad as the example, section 5 of the Trinidad Copyright Act provides an open list to subject-matter, thus, the type of work is unlikely to be problematic, unless it falls within the excluded subject-matter under section 7 or is a controversial issue such as scents and tastes. It is the question of originality that provides the first real hurdle in the copyright discussion. Section 5(1) states that copyright subsists in ‘original intellectual creations’. Therefore, it is necessary for the court to establish whether the work meets the originality requirement before any further substantive discussion occurs. In doing this, it will have to be definitively stated what the originality requirement is. In Full Blown Entertainment, it was initially stated that originality means ‘original skill, labour or originality of thought’. However, the court then confusingly made the statement that a phrase may be subject to copyright protection if it was a ‘unique literary expression’.91 Therefore, it is necessary to have a single definition for originality that is clear and consistent. If the work is subject to copyright protection, the next step in an infringement case is to outline what right is infringed and whether the requirements for the infringement are met. This will take the form of whether one of the exclusive rights under section 8 or moral rights under section 18 are infringed. In a reproduction case such as Full Blown Entertainment, invoking the right was largely straightforward. However, in a case concerning communication to the public establishing infringement may not be so simple given the complexity and nuances of that right. Therefore, to be comprehensive it is necessary that the infringement be stated and its constituent elements proven. The UK cases cited in Full Blown Entertainment were relevant to this end, but Seepersad J failed to engage with their specific requirements in any detail.92 It is suggested that the cases of Francis Day & Hunter v Bron93 and Designers Guild v Russell Williams can be followed to establish the structure for determining reproduction infringement. From these two cases, the test should be that the infringing work is objectively similar to the claimant’s work with a causal link,94 be it direct or indirect derivation95 and that the copied part is a substantial part of the claimant’s work.96 Alternatively, the EU approach to reproduction infringement established in Infopaq can be used. That is, reproduction infringement will be established if the part copied ‘contains an element of the work which … expresses the author’s own intellectual creation’.97 Adopting the EU approach will require modification so that infringement will occur where an original part of the work is copied. Despite the difference in structure of these two approaches to reproduction infringement, Arnold J in SAS Institute v World Programming reconciled the two tests by arguing that part of a copied work being labelled an expression of the author’s own intellectual creation will also amount to a substantial part of the copied work.98 Therefore, it is plausible for the Trinidad courts to apply either of these tests. Apart from choosing a test definitively, it is also important to note that the supporting case law to prove infringement should not be limited to the law of the UK and USA. As discussed in the previous subsection, the case law that has the best fit should be employed. Therefore, having a clearly laid out test for infringement together with the possibility of applying case law from a wide array of jurisdictions provides for a proactive and flexible copyright infringement framework, while still maintaining certainty.99 Lastly, where infringement is established, the court should then consider the availability of any exceptions or limitations as detailed under section 9–17.100 If the proposed structure for reproduction infringement is followed, the copyright infringement case law of Trinidad will become more coherent. This has value for members of the public who have prospective claims, and it will boost the efficiency of the courts as there will be set criteria to follow. 3.3 Clarifying copyright tests Following Full Blown Entertainment, two major points of contention arose with regards to the tests employed in determining ‘originality’ and ‘substantial part’. In order to develop a coherent copyright framework, it is essential to have clear and precise standards for determining subsistence and infringement. This subsection will propose what Seepersad J should have done in Full Blown Entertainment and, in doing so, provide options for developing Commonwealth countries with hybrid copyright frameworks, so that they avoid the problems created in Trinidad’s copyright case law. The ‘originality’ requirement Seepersad J defined originality to mean ‘original skill, labour or originality of thought’.101 This interpretation departed from the traditional UK approach of labour, skill and judgment set out in Ladbroke v William Hill. Seepersad J did not engage in any discussion about what ‘original skill, labour or originality of thought’ meant, nor was any case law cited in support. As such, it is unclear what threshold was set for the ‘originality’ requirement. It is particularly an issue that the word ‘originality’ was used in the phrase ‘originality of thought’ in explaining what the concept of ‘originality’ means. It thus creates speculation whether the phrase ‘originality of thought’ equates to some notion of novelty. However, novelty has never been a requirement for copyright law.102 Furthermore, it is bad practice to define or interpret any concept by using the same word. Consequently, it is advised that the phrase ‘originality of thought’ be replaced and the overall concept of originality clarified. It is open to the court to adopt any originality standard it chooses. However, it must be clear and precise. Given that there are options available for adoption, it is unnecessary to reinvent the wheel by introducing a substantively new approach to ‘originality’. It would be more efficient to rely on an ‘originality’ standard that has been tried and tested. This can be done by employing the traditional UK approach of labour, skill and judgment, which has a long history of precedent. Alternatively, and more preferably the EU approach of author’s own intellectual creation can be adopted.103 This is the most preferable option for a hybrid copyright framework such as that of Trinidad because the EU standard, which reflects the higher civil law approach, has been applied with success in common law countries such as the UK.104 However, it has been argued that the concept of author’s own intellectual creation should be limited to photographs,105 databases,106 and computer programs107 in the context of the Directives where the phrase is expressly stated.108 Furthermore, the use of author’s own intellectual creation in Infopaq amounted to the CJEU overstepping its remit by creating/harmonizing EU law through its decisions rather than simply interpreting the existing Directives.109 Thus, author’s own intellectual creation did not qualify the UK’s long standing tradition of labour, skill and judgment.110 Despite the arguments against the concept of author’s own intellectual creation being the all-encompassing originality standard, Derclaye and Rosati have embraced the notion of author’s own intellectual creation being harmonized at the EU level for all types of works through the CJEU’s teleological interpretation of the Information Society Directive.111,112 The arguments concerning the validity of author’s own intellectual creation as the all-encompassing originality standard in the EU aside, it is open to Trinidad to adopt it as their originality standard. The originality standard must be clear, precise and used consistently for all types of copyright works. It should not be repeated as in Full Blown Entertainment that special requirements are invoked for different types of subject-matter. In considering whether the phrase ‘wine with no worries’ should attract copyright protection, Seepersad J stated that ‘no originality can be attributed to the words “wine with no worries” as the phrase was not “a unique literary expression which can attract copyright protection”’.113 The requirement of being a ‘unique literary expression’ would again suggest the imposition of a novelty requirement which has been refuted. In fact, Proudman J in NLA v Meltwater stated that it is ‘wrong in principle to suggest that the court must conduct some sort of assessment of whether the extract [newspaper headline] is itself novel or artistically worthwhile’.114 Therefore, Seepersad J should have employed the same ‘originality’ requirement that he previously set out, as well as, he should have cited Meltwater to illustrate by analogy that the lyrics of a song can attract copyright protection.115 Conversely, if UK precedent is not to be relied upon, the simple approach should have been to apply the chosen ‘originality’ threshold without the need for any further subsistence requirements. In advising developing Commonwealth countries with hybrid copyright frameworks about ‘originality’, it is advocated that there is no reason to invent a new standard. There is a plethora of academic literature and case law pertaining to established ‘originality’ thresholds, such as author’s own intellectual creation. ‘Substantial part’ Seepersad J in Full Blown Entertainment utilized two distinct approaches for the determination of a ‘substantial part’. In the first instance, reliance was placed on the UK approach following the cases of IPC Media and Coffey, adding to the discussion that what was subject to the infringement proceedings had to be capable of copyright protection. Subsequent to this, Seepersad J applied the US lay/ordinary observer test: ‘it could not be said that the Defendants took from the Claimant’s work so much of what was pleasing to the ears of the target audience or that there was an unauthorised appropriation for which the defendants should account’,116 indirectly citing McDonald v West in support.117 It has already been discussed that the UK and US cases conflict, thus, the lesson to be learnt again pertains to consistency. Going forward, the courts of developing Commonwealth countries with hybrid copyright frameworks need to clearly articulate the requirement of ‘substantial part’. Whether the UK, USA, or some other approach is adopted, courts need to carefully analyse the precedent being applied and account for its nuances and philosophical underpinnings. Having said that, a potential work around to avoid this situation is to rely on the EU approach to infringement outlined in Infopaq, whereby, if the part copied is ‘author’s own intellectual creation’ then it will amount to an infringement of the reproduction right.118 This approach is desirable because it directly links ‘originality’ with ‘substantial part’ and avoids the contentious issue of separating protectable and non-protectable elements of the work beforehand. Instead, focus is placed on the aspect that is subject to the infringement claim and its fit within the work that is infringed as a whole. However, it is worth reiterating that no aesthetic judgment should be rendered in copyright law.119 Therefore, in defining ‘substantial part’, it should be made clear that the whole work must be accounted for and aesthetic judgments should be avoided. 3.4 Training and education Whereas, the recommendations above target the restructuring of the copyright laws and its application, indirect developments are also required. This translates into increased training and education for judges and stakeholders. In developing countries where intellectual property laws continue to be esoteric in nature, there is a need for public education campaigns to raise awareness. This should be conducted throughout schools, places of commerce and to the wider public by the resident intellectual property office and/or the government. The aim of the programme should be to make individuals aware of their rights and to foster respect for the institution of intellectual property. This can be seen as a proactive approach to combatting the wonton intellectual property infringement culture seen in many developing countries. Similarly, judges also need to be trained. In countries such as Trinidad where intellectual property cases are few and far between, judges do not have much incentive to develop their knowledge in the area. This is manifested in incoherent decisions such as Full Blown Entertainment. As such, it is proposed that local judges should undergo specialist intellectual property training either through formal university education and/or (re)training by specialist judges of more experienced courts. For example, this can be facilitated through WIPO. The desired outcome of such a (re)training programme is more coherent judgments and potentially, a more efficient judicial system. However, without such a training and education intervention, it is unlikely that judges in developing countries such as Trinidad will develop the necessary copyright competencies. Conclusion Trinidad copyright law has not had the opportunity to develop primarily due to the lack of cases litigated. This was illustrated in Full Blown Entertainment where the copyright framework (or lack thereof) employed was very limited, superficial and uncertain. Thus, a critical opportunity was missed by the court in Full Blown Entertainment to get Trinidad copyright law on the track to coherence and efficiency and moreover, provide an example for other Commonwealth countries with hybrid copyright laws to follow. The consequence of this is that the potential benefits of Trinidad’s hybrid copyright framework remain untapped. As a result, this article sought to provide recommendations for the development of effective copyright jurisprudence in relation to developing Commonwealth countries with hybrid copyright systems. In the Trinidad context, Seepersad J’s penultimate paragraph in Full Blown Entertainment, appears to welcome the challenge of developing Trinidad copyright law. Therefore, it is this author’s hope that the recommendations set out in the article are contemplated upon in Trinidad and Tobago and further in other developing Commonwealth countries. Acknowledgement Thanks to Dr Althaf Marsoof and Ms Emma Perot for their comments on various drafts of this article. Footnotes 1 Full Blown Entertainment Co Ltd v Devon Matthews and others (2017) HC No Cv 2015-1073. 2 Hereafter referred to as ‘Trinidad’. 3 The UK Copyright Act 1911 was adopted across the British Empire. It is argued that this was a means of ensuring a uniform copyright regime across the Empire – U Suthersanen, ‘The first global copyright act’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 7. 4 Copyright Act 1911, Chapter 46 (UK). D Daley, ‘Shades of grey: uncovering the century old imperial imprint on Jamaica’s modern Copyright Act’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 168. 5 Copyright Act 1985, Act No 13 of 1985 (TT). 6 Copyright Act 1997, Act 8 of 1997, Chapter 82:80 (as amended by Acts 18 of 2000 and 5 of 2008) (TT). 7 Berne Convention for the Protection of Literary and Artistic Works 1971. 8 Universal Copyright Convention 1952. 9 Agreement on Trade-Related Aspects of Intellectual Property Rights 1994. 10 WIPO Copyright Treaty 1996. 11 Whiteman v Stephens & Scott (1893–1910) 1 TLR 115 (reprint 137), Columbia Pictures Industries Inc v Talib Khan (trading as ‘Video Shack’) (1983) HC No 1927 of 1983, Rawle Arthur v Roy Boyke and others (1988) HC No 503 of 1984, The Jockey Club v The Betting Levy Board (1992) HCA No 2520 of 1990, In the matter of the terms and conditions of the grant of certain general licences as defined by section 54 of the Copyright Act, 1985 And In the matter of the Copyright Act 1985 between CCN Television Ltd and Prime Radio Ltd v The Copyright Organisation of Trinidad and Tobago Ltd (1993) HCA No 499 of 1993, Rawle Arthur v Joey Lewis and Jovean Recording Ltd (1999) HCA No Cv 322 of 1984, Nation Drivers Co Ltd v The Attorney General (2011) HC No Cv 2007/1730, Copyright Music Organisation of Trinidad and Tobago v Columbus Communications Trinidad Ltd (trading as ‘Flow’) (2011) HC Cv No 4722 of 2009 and Full Blown Entertainment v Matthews (2017). 12 This logic is equally applicable to the art forms of other Commonwealth countries such as: reggae and dancehall music in Jamaica, batik in Asian and African countries and Bollywood movies in India. 13 See S Le Gall, Intellectual Property, Traditional Knowledge and Cultural Property Protection: Cultural Signifiers in the Caribbean and the Americas (Routledge 2014). 14 James describes ‘works of mas’ as the ‘most distinctive feature of the Trinidad and Tobago Copyright Act’ – V James, The Economic Contribution of Copyright-Based Industries in Trinidad and Tobago (WIPO Creative Industries Series No 7, 2012) 3.1.3. 15 It can be argued that the “works of mas” provision is only unique in name because any open list copyright or droit d’auteur system can protect what is defined as ‘works of mas’ under the Trinidad Copyright Act provided it meets the requisite originality criteria. For example, see art L112-2(14) of the French Intellectual Property Code 1992 (consolidated version of January 1, 2014). 16 Countries such as France have vibrant industries like fashion that can implicate copyright law. Alternatively, India developed its own exceptions and limitations to address its ‘social, cultural, educational and religious needs’ – TG Agitha and NS Gopalakrishnan, ‘The Imperial Copyright Act 1911 and the Indian copyright law’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 137,140. 17 This is equally applicable for any country that has an established cultural sector. 18 James (2012) 3.1.2. 19 The hybridity of the Trinidad Copyright Act is not novel, as many other Commonwealth countries have hybrid copyright frameworks including: Canada, Australia, Singapore, South Africa, and India. 20 Copyright Act 1956, Chapter 74 (UK). 21 Copyright, Designs and Patents Act 1988, Chapter 48 (UK). 22 Copyright Act 1976, Title 17 of the United States Code (USA). 23 Intellectual Property Code 1992 (consolidated version of January 1, 2014) - see Articles L111-1, L113-1, L121 and L122. 24 Trinidad follows a similar descriptive approach in expressly stating the economic rights, rather than categorizing them as ‘reproduction’ and ‘performance’ or ‘distribution’, as in France or the USA. 25 J Haynes, ‘Subject-matter of Copyright Protection in the UK: a Road Map to Effectuating Statutory Reform’ (2013) 39 Commonwealth Law Bulletin 19, 328–31. 26 Following Creation Records Ltd and others v News Group Newspapers Ltd [1997] EMLR 444 and Lucasfilm Ltd and others v Ainsworth and others [2011] UKSC 39 the UK has rigidly applied its closed list approach to subject-matter. However, it is arguable that the UK approach is obliged to move toward an open list approach following the introduction and use of the ‘author’s own intellectual creation’ as the standard for originality in Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECLI:EU:C:2009:465. See E Rosati, ‘Closed Subject-Matter Systems are no Longer Compatible with EU Copyright’ (2014) 12 GRUR Int 1112. Author’s own intellectual creation has been applied in the UK in Temple Island Collections Ltd v New English Teas Ltd [2012] ECDR 11 and SAS Institute Inc v World Programming Ltd [2010] EWHC 1829 (Ch), however, it remains to be seen whether it will override the concept of ‘work’ under s 1 of the CDPA 1988. This question may be answered by the Court of Justice of the European Union in the Dutch referred Heks'nkaas case – Case C-310/17 Levola Hengelo (referred 2017). 27 See s 10-11 of the Trinidad Copyright Act 1997. 28 This point was raised in the South African context, to state that UK case law should not be applied where the South African statute has departed from the UK approach—T Pistorius, ‘The Imperial Copyright Act 1911’s Role in Shaping South African Copyright Law’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 208. Also see: Roodepoort United Main Reef GM Co Ltd v Du Toit (1928) AD 66, 71 and Estate Wege v Strauss (1932) AD 76, 80. 29 See s18 Trinidad Copyright Act 1997 and s.77 and 80 CDPA 1988. 30 See s78 CDPA 1988. 31 See s79 and 81 CDPA 1988. 32 See s 18(3) Trinidad Copyright Act 1997 and s 87 CDPA 1988. 33 Note, it is unclear whether moral rights under Trinidad copyright law protect the ‘spirit’ of the work as in droit d’auteur countries. 34 Although Canadian copyright law resembles the UK approach, ambivalence to the UK approach has been illustrated from the beginning. This is evidenced by Canada choosing to adopt its own copyright law in lieu of the UK Copyright Act 1911—Y Gendreau, ‘No Copyright Law is an Island’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 227. Canada’s copyright Acts have generally borrowed from the UK approach and the international copyright conventions. 35 Singapore copyright law was developed using the Australian approach and indirectly, the UK approach. Furthermore, US influence is illustrated by ‘fair use’ styled exceptions and limitations—N Wee Loon, ‘The Imperial Copyright Act 1911 in Singapore: Copyright Creatures Great and Small, this Act it made them all’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013). 36 Australian copyright law can be said to be the result of endogenous solutions, so that any mistakes were truly Australian—S Ricketson, ‘The Imperial Copyright Act 1911 in Australia’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 82. 37 South African copyright law largely resembles UK copyright law except where it has followed the Paris Revision of the Berne Convention – Pistorius in Suthersanen and Gendreau (2013) 207. 38 Daley in Suthersanen and Gendreau (2013) 170. 39 Full Blown Entertainment v Matthews (2017) para 85. Also, note that Trinidad and Tobago was placed on the IPR ‘Watch List’ published in: USTR, 2013 Special 301 Report (2013) <https://ustr.gov/sites/default/files/05012013%202013%20Special%20301%20Report.pdf> accessed 21 May 2017. 40 Full Blown Entertainment v Matthews (2017) para 85. 41 To date, there have been nine copyright cases, thirteen trade mark cases and two patent cases that have been fully litigated before Trinidad courts. 42 Full Blown Entertainment v Matthews (2017) para 85. 43 This situation is not unique to Trinidad as Commonwealth countries like New Zealand also experience low usage of copyright laws—G McLay, ‘New Zealand and the Imperial Copyright Tradition’ in U Suthersanen and Y Gendreau (eds), A Shifting Empire: 100 Years of the Copyright Act 1911 (Edward Elgar 2013) 32. 44 Full Blown Entertainment v Matthews (2017) para 70. 45 ibid para 72. 46 ibid para 71. 47 ibid. 48 See Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273. 49 The traditional requirement for copyright protection has been ‘originality’. Although the threshold varies by country, it is agreeable that for a work to be protected it must not have been copied from another work—University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601, 608. In other words, it was independently created. This is well explained in using a concept such as “author’s own intellectual creation” as employed by the CJEU - Infopaq [2009]. 50 Full Blown Entertainment v Matthews (2017) para 78. 51 Seepersad J should have begun his analysis with whether copyright subsisted in the subject-matter that was subject to the claim for infringement and then how the defendant’s work was created. It is perhaps arguable that the drafting of the infringement claim was equally unclear and thus gave rise to this problem. 52 Designers Guild Ltd v Russell Williams (Textiles) Ltd [2001] FSR 11. 53 Full Blown Entertainment v Matthews (2017) para 36. 54 From the decision, it is not clear that the court is following any particular formula or precedent to establish infringement. Rather, the judgement appears to be exploring options for how infringement should be determined. 55 The UK cases cited include: Creagh v Hit and Run Publishing Ltd [2002] EWHC 2512, Baigent and another v Random House Group Ltd [2007] EWCA Civ 247, Designers Guild v Russell Williams [2001], IPC Media Ltd v Highbury-Leisure Publishing Ltd [2004] EWHC 2985 (Ch) and Elizabeth Coffey v Warner/Chappell Music Ltd [2006] EWHC 449 (Ch). 56 The US cases cited include: Laureyssens v Zdia Group Inc (1992) 964 F 2d 131, Repp v Webber (1997) 132 F 3d 882 and Joel McDonald v Kanye West (2016) 15-3489cv. 57 K Garnett, G Davies and G Harbottle (eds), Copinger and Skone James on Copyright (Fifteenth Edition, Sweet & Maxwell Ltd 2004). 58 E Derclaye (ed), Halsbury’s Laws of England – Copyright (2016) Volume 23. 59 Full Blown Entertainment v Matthews (2017) paras 22-36. 60 ibid para 78. 61 Arnstein v Porter (1946) 154 F 2d 464, 473. 62 Seepersad J cites McDonald v West (2015) 138 F Supp 3d 448 in support. McDonald v West cites Repp v Webber (1997) 132 F 3d 882 and Arnstein on this point. 63 L Kurtz, ‘The Scope of Copyright Protection in the United States’ (1995) 6(3) Ent LR 88, 92–93. 64 Apple Computer Inc v Microsoft Corp and Hewlett-Packard Co (1991) 779 F Supp 133, 135. 65 Computer Associates International Inc v Altai Inc (1995) 982 F 2d 693, para 8. 66 McDonald v West (2015) para 19. 67 ibid para 24. 68 B Sookman, ‘Copyright Law: Rights of Reproduction, “Substantiality” and Fair Dealing by the Supreme Court in Robinson v Cinar’ (2014) 20(3) CTLR 83, 84–87. 69 IPC Media [2004] paras 11 and 22 and Coffey v Warner [2006] paras 9–13. 70 Note, this applies more widely to the general US approach to establishing reproduction infringement and its determination of what constitutes a substantial part. 71 A further point of contention between the UK and US approaches can be raised in relation to the idea of what is aesthetically pleasing. Following Hadley v Kemp, argument can be made that an aesthetically pleasing or memorable part of a song will not necessarily amount to copyright protection or consequently infringement – Hadley and others v Kemp and another [1999] EMLR 589. 72 Altai (1995) para 9 73 Henry Denker v Alfred Uhry and others (1992) 820 F Supp 722, para 5. 74 Full Blown Entertainment v Matthews (2017) para 85. 75 Commonwealth countries such as India have experienced or are experiencing very similar issues to those raised in Full Blown Entertainment – N Ahmad and S Chaturvedi, ‘Originality Requirement and Copyright of Music: a Comparative Overview of Indian Perspective’ (2013) 19 CTLR 209. 76 Full Blown Entertainment v Matthews (2017) para 85. 77 The copyright needs and concerns of developing countries have historically been an issue for the development of copyright law at the international level—S Ricketson and J Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (Oxford University Press 2006) 3.64. 78 As opposed to legally transplanting substantive parts of the copyright law of another country. 79 See Commission, Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (COM (2016) 593 final, 2016) and Commission, Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes (COM (2016) 594 final, 2016). 80 This will however be more relevant for Jamaica and Barbados that interpret ‘fair dealing’ using the US ‘fair use’ criteria. 81 This is in contrast to the approach seen in Full Blown Entertainment where the conflicting cases of IPC Media, Coffey and McDonald v West were applied with no attempt at reconciliation. 82 See The Chancellor, Masters & Scholars of the University of Oxford and others v Rameshawari Photocopy Services and another (2016) CS(OS) No 2439/2012. 83 See RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and others [2010] SGCA 43. 84 See ICETV Pty Ltd and another v Nine Network Australia Pty [2009] HCA 14. 85 Copyright Music Organisation of Trinidad and Tobago v Columbus Communications Trinidad Ltd (trading as ‘FLOW’) (2011) para 49. 86 It is accepted that the foundation of some jurisdictions’ case law may be rooted in UK or US law, however, this is not the case for all aspects of copyright law. If it is the case that UK or US law meet the criteria for the application of case law in a specific case then that should be followed. 87 Recommendations to develop and achieve the potential of the hybrid Trinidad copyright framework exceeds the scope of this article. As such, this is an introduction to what is required. 88 For a similar approach see the Rosati Checklist - E Rosati, ‘Stuggling to understand how to address a copyright infringement issue?’ (IPKat, 24 November 2014) <http://ipkitten.blogspot.co.uk/2014/11/struggling-to-understand-how-to-address.html> accessed 25 April 2018. 89 For example, the court failed to use key terms such as ‘substantial part’ and ‘independent creation’, instead, opting for ‘unauthorised appropriation for which the Defendants should account’ and ‘independent provenance’. 90 The individual tests to be used and their resultant thresholds will be discussed in the next subsection. 91 Full Blown Entertainment v Matthews (2017) para 71. 92 ibid para 78. 93 Francis Day & Hunter Ltd and another v Bron and another [1963] Ch 587. 94 The issue of causal link was discussed in paragraphs 80-81 of Full Blown Entertainment as an afterthought. 95 This includes conscious and unconscious copying. 96 See Francis Day & Hunter v Bron [1963] 611–15 (per Willmer LJ) and Designers Guild v Russell Williams [2001] paras 38–41 (per Lord Millett). 97 Infopaq [2009] para 48. 98 SAS Institute v World Programming [2010] para 243. 99 Allowing the use of case law from a range of countries is desirable because it increases the pool of experience from which judges can draw. This is particularly helpful in cases involving new technologies or controversial subject-matter. 100 It is worth noting that for Trinidad case law to have persuasive weight in other Commonwealth Caribbean islands such as Jamaica and Barbados, it is necessary to consider US case law and its fair use approach. See s.54 Copyright Act, Act 5 of 1993 (Jamaica) and s.53 Copyright Act, Chapter 300 of 1998 (Barbados) that adopt the US ‘fair use’ approach for the interpretation of the ‘fair dealing’ defences. 101 Full Blown Entertainment v Matthews (2017) para 71. 102 University of London Press v University Tutorial Press [1916] 608-609. Should a novelty requirement be introduced into copyright law this will have implications for the idea/expression dichotomy and the protection of works in the future. A monopoly type situation on works will be created similar to patent law, thus changing the operation of copyright law. 103 This approach is gaining traction in the UK where courts have been increasingly open to its application and moreover, it can be used for both subsistence and infringement. 104 See SAS Institute [2010] and Temple Island [2012]. 105 Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version), OJ L 372/12. See Recital 16. 106 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77/20. See art 3(1). 107 Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (codified version), OJ L 111/16. See art 1(3). 108 A Rahmatian, ‘Originality in UK Copyright Law: the Old “Skill and Labour” Doctrine Under Pressure’ (2013) 44 IIC 4, 6 and S Vousden, ‘Infopaq and the Europeanisation of Copyright Law’ (2010) 1 WIPO Journal 197, 201. 109 Rahmatian, ibid 6. 110 Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others [2011] EWCA Civ 890, para 20 (per Sir Andrew Morritt C). 111 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167/10. 112 E Derclaye, ‘Infopaq International A/S v Danske Dagblades Forening (C-5/08): Wonderful or Worrisome? The Impact of the ECJ Ruling in Infopaq on UK Copyright Law’ (2010) 32 EIPR 247, E Rosati, ‘Originality in a Work, or a Work of Originality: the Effects of the Infopaq Decision’ (2011) 33 EIPR 746, 749 and 754 and E Rosati, Originality in EU Copyright: Full Harmonization through Case Law (Edward Elgar Publishing 2013). 113 Full Blown Entertainment v Matthews (2017) para 71. 114 Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others [2010] EWHC 3099 (Ch) para 80 (per Proudman J) and Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others [2011] EWCA Civ 890, para 22 (per Sir Andrew Morritt C). 115 NLA v Meltwater [2010] para 71 (per Proudman J), affirmed by Sir Andrew Morritt C in the Court of Appeal – NLA v Meltwater [2011] para 22. 116 Full Blown Entertainment v Matthews (2017) para 78. 117 Indirect support because McDonald v West is not stated in para 78 where the test from the case is used. 118 Infopaq [2009] para 48. 119 NLA v Meltwater [2010] para 80 (per Proudman J). © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

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Journal of Intellectual Property Law & PracticeOxford University Press

Published: Oct 1, 2018

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