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Changing the Caribbean Intellectual Property Culture

(by Steve Maximay)

The countries that collectively constitute the Caribbean Community (CARICOM) all enjoy worldwide acclaim as having exotic cultural forms. Their cultural expressions run the full gamut from Reggae in Jamaica, Queh-Queh in Guyana, to Carnival in Trinidad.

Historically, the Caribbean was infamous for swashbuckling pirates who successfully plundered European shipping concerns especially from the 1660s to the 1730s. There are significant intersects with regard to the “New World” as exemplified by the Caribbean, and globalisation as determined by the “new” World Trade Organisation (WTO).

Most of the Anglophone Caribbean countries enacted Intellectual Property legislation to satisfy compliance requirements under the Trade Related Intellectual Property Rights (TRIPs) Agreement as part of their membership in the WTO.

Intellectual Property refers to the “expressed creations of the human mind” and as in the case of any other type of property it can be owned, sold and protected by law. Intellectual property exists in two main forms, industrial property and, copyright and related rights. Any creation of the human mind that is expressed in tangible form is someone’s intellectual property.

If the creation happens to be a piece of machinery, a distinguishing mark, material made by a process, a device, or a tool it would fall in to the category of industrial property. Industrial property would be protected and recognised under the headings of Patents, Utility Certificates, Trademarks/Brands, Industrial Designs, Geographical Indications, Layout Designs (topographies) of integrated circuits and the protection of New Varieties of Plants (plant breeders’ rights).

Copyright refers to creations involving written, visually displayed, performed or recorded works and would be afforded protection under that designation. Copyright has been the most dominant reference to Intellectual Property (IP) in the Anglophone Caribbean.

Whilst the TRIPs-inspired legal and administrative structures within CARICOM are enviable, enforcement is often only a feature of Industrial Property Rights protection. Flagrant copyright infringements are not subjected to the legislative penalties. Unfortunately, music and video piracy has been the public platform upon which IP has been most extensively discussed and in many ways circumscribed.

Copyright infringement with regard to so-called music and video-piracy has been the most widely reported connection between the Caribbean population and IP. There is widespread public and private agreement that copyright protection is an aberration and reflective of capitalistic greed, especially on the part of producers of movies and music. It has become so ingrained in the various denizens that IP immediately conjures up images of infringement and the resultant legal implications. The documented but oft non-pursued penalties for piracy has entrenched the view that IP is about law.

A confluence of circumstances has engrained the public perception that “IP is about law”. The WTO compliant IP legislation, the fact that the IP Office is often within the remit of a legal Ministry or headed by an Attorney, and the requisite need for lawyers to protect the accrued rights has cemented the perception of IP being about law.

Steps taken by CARICOM governments or rights holders to promote better understanding of IP have been sporadic and generally from a “rights protection” perspective as opposed to one of “goods creation”.

The Caribbean has not learned how to make the IP system work for locals as an intrinsic aspect of national development. The majority of the population sees IP as a legal consequence rather than an economic imperative. The pervading culture is one of preoccupation with the protection or avoidance of IP Rights. That culture must perforce change to one of exploring the benefits to be derived for Caribbean nationals, some of the most creative people in the world.

What is needed to change the culture is a thorough and factual public analysis of what the IP System really means. Intellectual Property is the great equaliser; it can bestow rewards on its creator, independent of any other resource or factor of production. Creative, innovative and talented people can reshape the world by leveraging their IP from the comfort of their home, modest office or favourite “liming spot”.

The IP System has shown that even when Landspace is limited, Headspace can be expanded. The Business Journals are replete with analyses of the economic significance of owning “the process” rather than the factory that manufactures the product. The Caribbean, by dint of its host of talented individuals from all spheres of activity in the Arts and Sciences, is poised to be a force in the world of IP, in much the same way as it astounds the world in culture.

The new mantra for the modern inhabitants of the New World ought to be grounded in a desire to find creative and innovative ways to leverage their IP. Economic gains can accrue through copyright remittances for literature, visual works, performances, recordings or other forms of expressed creativity. Concurrently the Region should more systematically and systemically review its ability to own processes, build brands and profit from the technological genius of a small corner of the Globe that was able to develop the only new acoustic instrument of the Twentieth Century.

Steve Maximay was a member of the Cabinet appointed Committee responsible for the Intellectual Property Policy of Trinidad and Tobago.

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  1. I wish it can made clear to the Countries in the Caribbean Region. I attended Workshops that were WIPO sponsored from 2001. Barbados was clearly ahead of the game and saw the need to create the Corporate department as an Independent Corporate entity as investment is the foundation of any independent nation state. There was a Ministerial Meeting in June, 2002 in Suriname where all Nation States Guyana included were prescribed with areas that each nation state had to get in Order and even a Mr. Jan–cannot now remember the surname reviewed Reports that are prepared. Clearly, this is an area of the law that is substantially an intangible asset but because there are trademarks like Cadbury’s, the Coca Cola and Nestle’s brands to be protected it is imperative that we raise public awareness not only on branding but the importance of protection of the creativity of our Natives. I only now see mention of 4 nation states– Barbados, St Lucia, Jamaica and Trinidad.
    See, I was personally in Trinidad in 2000 enquiring about a friend of mine’s registration of her poems. That could not be registered as she was not then a native of Trinidad- so much for CARICOM–as regional institutional machinery obviously failed in providing protection to sistren in the region where laws in other territories were sadly deficient. But one cannot rely on laws that don’t exist so the obvious result is that patented and trademarked brands may be reluctant to take the chance but now there is INTERNATIONAL registration that affords the owner of the brand, idea, creation or product once the fees paid, searches done etc to have protection anywhere on the globe.
    I applaud this article and commend it to the Office of Trade and Negotiation within the Operational Structure of the CARICOM Machinery in the context of trade aspects as well as the umbrella body called CSME–the Caribbean Free Market Zone. See, the last session I attended in 2004 dealt with the CCJ trade aspects with particular reference to Intellectual Property as an asset to the Region. Judges who are au fait with trade, the relatedness to the CSME and legislative framework within the region are required–backgrounds of Judges are very important as their experience will determine the views held by existing and potential trading partners—no one deals with UNSECURE markets.

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