IP Regime in Jamaica
For a more detailed treatment of the intellectual property regime in Jamaica see Jamaica: Intellectual Property by Foga Daley Partner, Dianne Daley in International Encyclopaedia of Laws, Kluwer Law International, Intellectual Property – Suppl. 47 (September 2008)
As a former British Colony with a Common Law tradition Jamaica was governed by the Copyright Act of 1911 of the United Kingdom, the predecessor Imperial Statute which once applied in all the former Colonies of the Caribbean. Jamaica’s first local Copyright Act 1913 incorporated the UK Act of 1911 provisions on copyright offences and sanctions which otherwise would only have applied in the UK. The UK Act of 1911 applied in Jamaica until it was repealed by the Copyright Act No. 4 of 1993.
Post-independence (1962) lobby by the Jamaica Federation of Musicians and Affiliated Artistes Union, led to the tabling and passage of the 1977 Copyright Act, which was never brought into force. This Act did not grant any rights in performances or moral rights. Further lobby by the Union for a more comprehensive Law on copyright that would also address neighbouring rights led to the passage of the current principal Act of 1993. In addition to the Union, the other local copyright interest groups which lobbied for the Act were Book Publishers, Librarians and Performers.
Copyright in Jamaica is governed by the Copyright Act (4/1993) (in force September 1, 1993), a suite of Orders and Regulations and the Amendment Acts of 1999 and 2015.
The Act of 1993 was fashioned off the copyright and related rights provisions of the UK Copyright Designs and Patents Act of 1988 (CDPA) but incorporates of some provisions which are more akin to US Copyright Law than to British Copyright Law. Remnants of the Imperial Copyright Act of 1911 (repealed by 1993 Act) have still applied through savings provisions, to certain material (in particular sound recordings) and infringements occurring prior to the commencement date.
A few provisions were introduced in 1999 by the Copyright Amendment Act pursuant to Jamaica’s bilateral agreement with the USA on Intellectual Property and Investment as well as its membership in the WTO and consequently the TRIPS Agreement (1995). Among other things, compilations of data or original databases gained copyright protection and manufacturing/trading in decoders of encrypted transmissions with the requisite knowledge and without authorization, became a copyright offence.
In 2015 sweeping changes were made to Jamaica’s Copyright Act through the Copyright (Amendment) Act of 2015 in force July 30, 2015 including new and expanded rights for copyright owners and performers and with that, new liabilities, offences and exceptions to infringement and a revival of Crown Copyright. Perhaps, most impactful, is an extension of the already long duration of copyright. Some of the changes brought about by the amendments were gestating for over ten (10) years while others gained momentum in a relatively short space of time.
The Copyright (Amendment) Act of 2015 is the most substantial set of amendments since the 1993 Act. It brought into effect several major substantive & administrative changes including:
- Extension of Duration of Copyright and Rights in Performances
- Express provisions on Ownership of Copyright and Crown Copyright
- New/expanded right for copyright owners
- New rights for Performers and Persons with Exclusive Recording Rights
- Offences for the circumvention of Technological Protection Measures (TPM) and altering of Rights Management Information (RMI).
- Liabilities & Exemptions for ISPs
- Exceptions for the Visually and Hearing Impaired
- New Provisions on Orphan Works
- Exceptions in relation to sound recordings
- Statutory Copyright Registration
- Regulation of Collecting Societies (Regulations still pending)
Main Factors of Change
The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (together known as the WIPO Internet Treaties (1996) to which Jamaica acceded in 2002) were the main catalysts for Jamaica’s copyright amendments. However, the amendments seemed to take on ‘a life of their own’ particularly in the run up to the amendment Act. The result is that the Internet Treaties only account for a ‘handful’ of the amendments, namely the new/expanded rights for copyright owners, performers and persons with recording rights, liabilities/exemptions for ISPs and offences for circumvention and tampering with rights management information. Some provisions mandated by the Treaties were omitted from the 2015 amendments and are expected to be included in a subsequent amendment.
Extension of Term of Copyright
The extension of the term of copyright and related rights could be considered the flagship amendments of the 2015 Act. The Copyright Act of 1993 gave the minimum duration stipulated by the Berne Convention of life plus 50 years for works of authorship and 50 years for entrepreneurial works. Under the 2015 Act the term of copyright has been increased to life plus 95 years across the board. For example:
- Copyright protection for original literary, dramatic, musical or artistic works now lasts for the life of the author plus 95 years (up from 50).
- Copyright in a sound recording, film, broadcast or cable programme now lasts 95 years (up from 50) from the end of the calendar year in which it was made, or where it was made available to the public before the end of that period, the end of the calendar year in which it is so made available.
- Performances previously protected for 50 years now enjoy 95 years from the end of the calendar year in which the performance was recorded or if not fixed in a recording, from the end of the calendar year in which the performance takes place.
This increase was triggered mainly by the local music/recording industry seeking to rescue iconic reggae music from the public domain. Industry stakeholders had lobbied the Government for a longer term extension to preserve Jamaican recordings of iconic songs, like Many Rivers to Cross by Jimmy Cliff and One Love by Bob Marley created in the 1960s which had already fallen or were about to fall into public domain. However, the increased terms could prove problematic particularly because of their retroactive effect.The extensions apply retroactively as at January 1, 2012. Therefore all works for which copyright expired on January 1, 2012 up to July 29, 2015, gain another 45 years, and those thereafter are protected for life plus 95 years or 95 years as the case may be, and 50 years in the case of typographical arrangements.
Ownership of Copyright
Another interesting amendment relates to ownership of copyright. Express provisions on copyright ownership appear consequential to the provisions on term extension, but may create unwelcomed challenges for businesses. The 1993 Act departed from the UK and other copyright laws around the world by not exempting works created in the course of employment from the first ownership rule and the amendments seem to compound the issue.
Under the 1993 Act, the author is deemed to be the first owner of the copyright unless there is an agreement to the contrary. The only statutory exception to the first ownership rule relates to works first published by or under the direction or control of a specified international organization.
The dilemma with this has been that in the case of a work done in the course of employment where one might assume that ownership should be deemed to rest with the employer, the absence of an agreement vesting copyright in the employer would have the effect of it resting with the employee. The 2015 Amendment Act for the first time makes reference to ownership in relation to an employer and the employee, but rather than bringing Jamaica in line with international norms it seems to reinforce the diversion.
It states that where pursuant to an agreement between an employer and employee copyright in a work created by the employee has vested in the employer, the copyright expires 95 years from the end of the calendar year in which the work was made.
Interestingly, the Government ‘climbed its way out’ of this ‘dilemma’ by introducing a provision in the 2015 Amendment Act that copyright in works made by a person employed or engaged by the Crown under a contract of service, a contract of apprenticeship or a contract for services, is first owned by the Crown unless there is an agreement to the contrary.
Crown copyright works are protected, in the case of a typographical arrangement of a published edition, for 50 years from the end of the calendar year in which the work was made; and for any other work, 95 years from the end of the calendar year in which the work was made.
The Copyright Directorate of Jamaica Intellectual Property Office (JIPO) handles policy and implementation of the Copyright Law.
The Copyright Act of 1993 made provision for the establishment of a Copyright Tribunal.
Similar to the UK Copyright Tribunal, Jamaica’s Copyright Tribunal is designed to interface with user groups and collecting societies in the licensing of various rights. It provides a mechanism for the settlement of disputes relating to licensing schemes or licenses, which the parties have not been able to resolve otherwise.
The Copyright Tribunal may hear references concerning licensing schemes operated, or licenses granted by a licensing body in relation to the copyright in literary, dramatic, musical or artistic works or films (or film sound tracks when accompanying a film) which cover works of more than one author. Such licenses or schemes must concern the reproduction, public performance, broadcasting or cable casting of the protected work.
There are three (3) CMOs in Jamaica established pursuant to the Copyright Act of 1993:
The Jamaica Association of Composers, Authors and Publishers (JACAP)
JACAP administers the public performing rights of composers, authors and publishers in their musical works film synchronization rights and recording rights granted to copyright owners under the Act and licenses those rights to users in exchange for licence fees which are in turn distributed to its members and affiliates. Incorporated in early 1998, JACAP succeeded the local agency of the PRS (UK) that operated satellite agencies in former British Colonies like Jamaica. JACAP is a member of the international collective management organization called CISAC.
For more information on JACAP go to: http://www.jacapjamaica.com/
The Jamaican Copyright Licensing Agency (JAMCOPY)
JAMCOPY was established in 1998 and administers the reprographic rights of authors and publishers of works in print media, which concerns licensing the right to make multiple copies/photocopies of such works. The Copyright Act generally restricts copying by a reprographic process. Although copyright in literary works is not infringed by virtue of copying for instructional purposes such copying cannot be done by a reprographic process. Institutions providing tertiary education may make reprographic copies of passages from a published work for instructional purposes without infringing copyright but are limited to five percent (5%) of any work per quarter. This allowance is however rendered inapplicable where a licensing regime exists.
JAMCOPY is a member of the International Federation of Reproduction/Reprographic Rights Organizations (IFRRO) and has foreign reciprocal agreements with several equivalent RROs including Argentina, Australia, Belgium, Brazil, Canada, Finland, Greece, Iceland, Mexico, Slovakia, Spain, United Kingdom, the United States of America and Zimbabwe.
For more information on JAMCOPY go to: http://www.jamcopy.com/
The Jamaica Music Society (JAMMS)
The Jamaica Music Society (JAMMS) was established in July 2006. JAMMS administers the broadcasting and public performance rights in respect of protected sound recordings and represents local and international sound recording copyright holders including independent record labels/record producers as well as the major international label groups and artist-owned labels. JAMMS took over from the now defunct Jamaica Musical Rights Administration Society (JMRAS) and has also assumed the mandate in relation to performers’ rights from the Jamaica Performers’ Administration Society (JPAS).
For more information on JAMMS go to http://www.jammsonline.com
The IPC is a non-profit non-governmental entity which was created in 2000 to provide services to intellectual property rights owners and users of intellectual property with a focus on encouraging and facilitating the documentation of rights which was then lacking largely due to a culture of oral transactions and the absence of a formal registration system.
The aim was to establish and maintain a registry for copyright works and to provide the facility for certification, verification and recordation of copyright rights. As such, the IPC voluntary copyright registration facility was one of its core activities when it was launched.
Other objects of the IPC include:
- To further the education and to increase the awareness of intellectual property rights owners of their rights and obligations and other matters pertaining thereto and to provide for the giving and holding of lectures, exhibitions, seminars, workshops and meetings for the promotion or advancement of intellectual property education;
IPC opened its doors to the public on March 13, 2000 and was officially launched as part of the activities of National Intellectual Property Week (May 14 – 19, 2000) on Monday May 15, 2000 at the Terra Nova Hotel in Kingston.
The Government of Jamaica through the Ministries of Education and Culture, Industry, Commerce & Technology and the Ministry of Tourism and Sports with portfolio for Entertainment publicly supported IPC’s establishment. Officials from WIPO and other industry stakeholders attended the launch.
The IPC was initially funded by Convergent Services Ltd, and run by the Jamaican Musicologist, radio talk show host and cultural activist the late Keith Anthony “Tony” Laing. The IPC Advisory Board which became the Board of Directors when IPC was incorporated as a registered company comprised representatives from the University of the West Indies (UWI), the Government Archives, the Jamaica Intellectual Property Office and the Media Owners’ Association of Jamaica.
The late Professor the Honourable Rex Nettleford – Vice Chancellor UWI, served as IPC’s chairman until a few years before his passing in 2010. Founding IPC director, Mr John Aarons who was a former Executive Director of the National Library of Jamaica (2002) and Government Archivist (since 2009), assumed the IPC chairmanship and served the IPC for several years before his retirement in July 2017.
IPC continues to be supported by volunteers and is currently focused on its intellectual property educational objectives.
The Copyright Claimant is required to fill out a voluntary declaration of the claim to ownership of copyright, containing a brief description of the work and the date and place of creation or first publication. The Declaration must be witnessed by a Justice of the Peace or in the case of a foreign applicant by a Notary Public.
The Claimant is also required to complete an IPC Copyright Claimant Form providing further details of the claim. A copy or true representation of the work must be provided to the IPC for deposit in the National Library.
The IPC makes a publication of the claim in the Jamaica Gazette, issues a certificate of registration and is available to support the certificate in evidence in the event such proof is needed by the copyright claimant in Jamaica.
Works deposited under IPC’s copyright Recordation System are housed in the National Library, while the copyright claims are published in the Jamaica Gazette.