Contemplating Carnival copyright

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Above: Stageside crowd control on Carnival Tuesday evening in 1993 as Peter Minshall’s Donkey Derby crosses the Queen’s Park Savannah stage. Photo by Mark Lyndersay.

BitDepth#1081 for February 21, 2017

Copyright is a legal conceit designed to manage the exploitation of intellectual property. It posits, in its simplest form, that a unique creation can be sold for different uses, at different prices, according to the value that its creator sets on each exploitation of the property.

Because it is rarely a single thing sold at a single price, complications can sometimes set in when buyers, used to finding a product at a set price and haggling around that value, must deal with a product that can have different costs depending on how and where it is to be used.

If we are to ground the abstract notion of copyright in something with tangible familiarity, consider it as a loaf of sliced bread.

The creator of the loaf might sell the entire loaf or choose to licence it out as a range of slices, choosing to offer each option at different prices based on what the end user hoped to do with the bread.

The analogy collapses here, though, because once bread is gone, it’s gone. Copyright has a much longer life, and most licenses are limited in duration and use, which means that the bread never really leaves the creator’s hands, it’s just leased.

The most critical aspect of copyright for any creator is the buyout, the full transfer of rights to another person, making them, legally, the creator of the work, vesting them with the power to resell and exploit the property.

The ongoing corruption of the core principles of copyright in Carnival is confusing, annoying and expensive.

There are many rights embedded in every event of the festive season. From the unique designs that give character to a fete, to the music that provides the sound bed of Carnival’s building excitement, there is much that can be considered unique.

But misunderstandings abound in the application of copyright principles to Carnival and I haven’t been immune to them. During a radio discussion on i95FM, copyright lawyer Carla Parris corrected my impression that persons in a public place have a right to their likeness in Trinidad and Tobago.

That’s under discussion in Government legal circles, but is not a protection under law. I’m not sure that I’d be comfortable offering up an image of an identifiable person for commercial use, but there’s a clear difference between politeness and legality.

Carnival costumes are also not protected under traditional intellectual property law but under the locally unique provision for Works of Mas. At this discussion about copyright in Carnival, Richard Aching explained that most Carnival costumes are most properly registered as industrial designs. As of July 2014, according to Aching, exactly two costumes were registered and there’s a window of 12 months for effective registration of such designs.

So given all this, what exactly are the NCC and the stakeholder bodies of Carnival charging photographers and videographers hefty sums of money for?

The NCC offers the figleaf of demanding a fee for access to the stage of the events it convenes, though that fee has never offered more than a small, readily jostled and cordoned off space with no amenities (the NCC warns that the expensive pass doesn’t entitle its bearer to a chair) that most of the people there have stormed.

The National Carnival Bandleaders Association (NCBA), Pan Trinbago and Tribago Unified Calypsonians Organisation (TUCO) charge a copyright fee for recording their events on either still photographs or video that delivers no actual rights to anyone who pays it.

Add to that the untidy facts that not one stakeholder in any of those organisations has ever received a payment representing the tiniest trickle down of any of these copyright payments and the dubious legality of three organisations which are not registered copyright collection agencies collecting funds pretending to be license fees, and you have the makings of a decades-long scam preying on individuals who participate in Carnival as documenters of the event.

This debacle has, over the last two decades, created a chilling effect on the coverage of Carnival and affected the character of the festival itself. Carnival coverage has become focused on its most exploitable elements, sexy bodies in colourful costumes wining to hot soca, because they offer the best return on these now entrenched and soaring advance fees.

Coverage of more traditional elements has drifted to the fringes, with only stickfighting dramatically beating its way back to the forefront of the national consciousness in recent years, largely as a result of two stunning documentaries that skipped commercial return for creative opportunity.

This absurd situation has persisted for so long that it has become a tradition of Carnival all its own, and it’s time it was both challenged and stopped.

A country that was serious about defining, protecting and exploiting the annual explosion of intellectual property that is Carnival would long ago have created systems to streamline the registration of its unique elements and designed accessible licensing regimes for media professionals and documentarians, both local and international, to use when they turn their work to commercial purpose.

The application of the principles of copyright to Carnival by its elected stakeholder representatives is careless, predatory and counterproductive.

The existing system was created as a toll for media organisations – which should have been challenged when it was proposed – and it is now a punishing tax for everyone with a camera or microphone.

It does not reward the actual creators of Carnival. It narrows the scope of independent inquiry into and documentation of the festival unnecessarily. And most compellingly, it is a copyright fee which grants no usable rights whatsoever.