by Rachael N. Collymore Published Dec 11, 2018
These days IP #intellectualproperty is at the forefront, especially in the wake of the judgement against Mr. Sean Caruth on his lawsuit against the THA back in July 2018 and the recent press release (see below) shared by Mr. Fabien Alfonso.
As discussed with Fabien, I truly believe this could have been a landmark case for the industry and that judgement should have gone in favour of Mr. Caruth. However, a judgement was made based on the presentation of facts by the representing attorneys for each side. The issue that needed to be clarified from the onset was the nature of the agreement with COTT and the rights assigned thereto.
Secondly, for all intents and purposes, at the point of signing such agreement with the CMO, neighbouring rights/ related rights was not a part of its mandate, nor was it a right administered by them. Such right was only written into the By-Laws within recent times.
The question remains, can this be implied (as a bundle of rights under copyright) or applied, retroactively (wouldn’t this constitute, past consideration). However, if this right was outside of the CMO’s purview/jurisdiction, then it stands to reason that Mr. Caruth was within his right to sue for the infringement as the owner of the copyright and therefore, judgement should have been granted to him. The other side of the coin is whether the CMO absconded in its duty to represent and advise its member accordingly (if it applies) and if so, is there any redress and are they exempted from such negligence?
However, the bigger picture here is about the interpretation of the Copyright Act and how one views such assignment. Does the agreement expressly state the terms governing the assignment and the relationship between assignor and assignee. Does it outline the valuable consideration for the transfer of rights, if any?
[AND] Should there be laws governing CMOs and/or a regulatory body to ensure accountability, transparency and fairness in the execution of duties for and on behalf of its members?
Moving forward, it is necessary for there to be guidelines for the administration of intellectual property rights/copyright, in relation to Music/Creative Industries, as opposed to trademarks/ patents. These should be written into the Copyright Act, by way of an Addendum for the avoidance of mischief and misinterpretation.
Rachael N. Collymore | Power Media Hub
Date: Monday December 10th 2018
T&T Songwriter/Entertainer Appeals Music Infringement Ruling
Music Infringement Claim
In October 2016, Songwriter/Entertainer Sean Caruth brought forward an infringement claim against organisers of the Tobago Blue Food Festival for using the sound recording ‘Coal Pot’ in media advertisements without his permission. Advertisements were broadcast on radio, television and also via social media platforms.
Mr. Caruth is seeking exemplary damages for breaches of both his Neighbouring and Moral Rights, which were infringed.
Regrettably, both Neighbouring and Moral rights claims were dismissed by the High Court, when the judgement for [CV 2016-03461] was delivered on July 23rd 2018.
The judge asserted Mr. Caruth did not have legal standing to bring forward claims of infringement of his Neighbouring Rights, since he transferred said rights to the Copyright Music Organisation of Trinidad and Tobago (COTT) by way of an agreement he entered with the organisation in 1997.
Mr. Caruth maintains while he may have assigned his Author/ Composer Rights [Copyright] to COTT, at no time did he assign his rights as a Performer/Producer [Neighbouring Rights] to the organisation as declared in the judgement.
Different Rights Administered by Collecting Agencies
Within T&T’s Music Industry and Intellectual Property Landscapes, there exists misinformation regarding the distinction between Copyright and Neighbouring Rights administration. Caruth says there are 3 Collection Agencies which operate in T&T:
1) The Copyright Music Organisation of T&T (COTT) http://www.cott.org.tt/
2) Awesome Copyright Limited. http://awesomecopyright.co/
3) Trinidad and Tobago Copyright Collection Organisation (TTCO) http://ttco.org.tt/
Furthermore, he states, as far as he’s aware, the only collection agency in T&T that can administer the rights of Performers and Producers [Neighbouring Rights] is the TTCO and not COTT.
COTT’s mandate has never been about Neighbouring Rights. He is calling on COTT to publicly put on record that the agreement he entered with them did not include an assignment or transfer of his Neighbouring Rights.
Decision to be Appealed
As of September 2018 Mr. Caruth has filed a notice of appeal and is awaiting the case to be called.
FABIEN ALFONSO | Copyright & Related Rights Specialist.