TTCO’s first copyright shot misfires

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It’s Carnival again and the Trinidad and Tobago Copyright Organisation (TTCO) is back on the beat making bold claims about copyright and collection.

But does the organisation have the clout to do what it claims?

You may remember the TTCO as the organisation that demanded outstanding royalties and accreditation fees related to the performance of Works of Mas, a protected right in the T&T legal framework, from the National Carnival Commission in 2011, demanding fees due to the National Carnival Development Foundation, led by Dr Vijay Ramlal and demanded that the NCC obtain licenses from them for future events and performances.

The TTCO renewed its claim in December 2012 in the lead up to Carnival 2013, for fees it believes it is entitled to between 2007 and 2012.

In 2013, the TTCO raised its game by warning the public against posting photos on Facebook. This particular claim was debunked by Tene Reece, the Deputy Controller of the Intellectual Property Office.

On November 20, The Honorable Mr Justice Devindra Rampersad delivered his judgement on claim number CV 2014-02732, a claim before the court laid by the TTCO against the National Carnival Commission and the National Carnival Bands Association.

The following excerpts from the 19 page judgement noted among other things…

To successfully claim that one’s copyright has been infringed it must first be established that (1) copyright subsists in the works in question and (ii) the copyrighted works were used without the consent of the owner of that copyright, These particulars are also required to be able to claim the remedies established by the Copyright Act as the court can only take an account if the extent of the infringement could be ascertained. (from item 50)

A case, therefore, must be based on a specific infrigement or set of infringements to the copyright law.

Further, the failure of the claimant to particularize the extent of the breach by identifying the breaches puts the court and the defendants at a disadvantage if even the claimant is successful in its claim and the court is minded to order an account be taken. (from item 55)

The TTCO could not identify, to the satisfaction of the court, the infringements it claimed it had suffered. This was a consistent problem with the case from the very start, along with the inability of the TTCO and NCDF to identify with supporting documents, its membership, which would have constituted the copyright owners alleged to have been affected.

The court has taken these factors into consideration, and though hesitant to do so, there is no other option available to this court at present based on the established principles but that the amended statement of case and claim form must be struck out. The court has already given the claimant the opportunity to directly address important matters which must form an integral part of the statement of facts as identified above.

This opportunity to rectify the defects in its amended statement of case, even though made at the instance of the second named defendant [the NCBA], addressed crucial elements of the claim necessary as against both defendants and the claimant has failed to take advantage of this opportunity in direct contravention of the court’s order. As it stands, the amended statement of case has not sufficiently made out the cause of action alleged, that is, copyright infringement. (from item 57)

The case is being struck down because the claimant, the TTCO, has been unable to meet the court’s demands for information and documentation relevant to its fundamental claims.

By its failure to provide these particulars, the claimant has exhibited to this court that, even up to now, they are unaware of the true nature and extent of the case which they have brought before the court and are now seeking to identify the elements to construct its case while the court processes are taking place.

Perceived unfairness is not a contestable matter in court unless it can be proven. The TTCO and the NCDF basically went to court because they wanted royalties and payments and didn’t bother to create even a most basic statement of claim.

This is not surprising in the world of local Carnival copyright, which is based on largely baseless threats and the levying of preemptory fines for vaguely defined rights which are stunning in their lack of specificity.

The accreditation agreements set forth by the NCBA and the NCC are astonishing in their lack of specific detail about the rights they grant and on whose behalf they are licensed.

Justice Rampersad notes that the claim was not dismissed on its merits, but rather on “incurable defects” being based on such vagueness that it was not actionable. If the TTCO can sort out its claim, it can refile the claim.

The claimant, the TTCO, was ordered to pay the costs of the action.

In response to questions on the matter, TTCO President Dr. Vijay Ramlal Rai said: “That matter is not completed yet, because the Judge said TTCO has a case and TTCO should refile the matter because there is merit in the claim.”

“TTCO while seeking the official footage to be used in court came late for the initial case, when it was eventually submitted to the court the Judge made it clear that TTCO has the right to refile . The case has merit.”

Which is not exactly what Justice Rampersad noted in his summation. In that document he wrote, “The court has not dismissed the claim on its merits.”

That was noted against repeated statements that theTTCO is still to construct a proper case for the court to consider. Justice Rampersad dismissed the matter because there was no case to answer. That’s not quite the same thing as saying that the TTCO has a case or that it has merit.

The TTCO does intend to refile and according to Dr Ramlal, “TTCO [has] obtained the footage and documents to substantiate the claim. [It] Came late. But the TTCO is refilling as guided by the Judge .”