JIS News

The Jamaica Intellectual Property Office (JIPO) with the assistance of the Organized Crime Division of the Jamaica Constabulary Force is intensifying its drive to seek out and bring to justice persons who continue to breach copyright laws.
In an interview with JIS News, Manager of the Copyright Directorate, JIPO, Natalie Wilmot says that as it relates to criminal prosecutions, since May last year, due in great part to the hard work of the members of the police force, “what we have seen is that the police have really taken on, on their own initiative, a number of raids to bring these persons within the law and to redress some of the really flagrant breaches of the copyright law that we can see on the street”.These raids have mainly been carried out on cassette vendors who continue to sell pirate CDs, DVDs and audio cassettes. Over 20 prosecutions have occurred since last year in areas such as Montego Bay, May Pen, Ocho Rios, St. Thomas and Kingston, Miss Wilmot informs. Most of these matters have culminated in varying fines and suspended sentences.
Under the Copyright Act the maximum fine for a breach is $100,000 and or two years imprisonment, per offence or count. Miss Wilmot explains that each song on a CD qualifies as a different count and some five cases are ongoing. Another issue of concern is ‘bootleg’ activities, which refers to an illicit recording of a stage show, from which copies are made and put on the market for sale without the permission of the promoter or artiste.
“We have also seen matters involving piracy with software. It is interesting to see this development and we are certainly looking forward to the outcome of the first trial that has not yet come to fruition,” Miss Wilmot remarks. Where the Internet is concerned, she adds, JIPO has not yet come across any cases in this area.
Asked how the justice system was being prepared to take on copyright cases that would be inevitable given today’s society of free flow information, Miss Wilmot explains that, “the copyright owner may decide to seek redress in the civil courts or he may decide to make a complaint to the Organized Crime Division and the police will then commence an investigation and the matter will then form the basis of a prosecution in the criminal courts. He can do both criminal and civil prosecutions”.
She says that insofar as civil matters are concerned, litigation has been very slow and copyright owners have been either reluctant or hesitant to put forward cases when they do arise. “We have not seen many copyright cases in the civil courts. This may be because it is very costly. There is also the consideration that litigation in the civil courts takes a tremendous amount of time. That’s something that would perhaps discourage a copyright owner seeking redress,” she notes.
Miss Wilmot points out that, “what would encourage him is the fact that the civil court is the only place where you can get certain kinds of remedies. You can get delivery up, damage, destruction of infringing material and most important, you can get an account of profits and that would allow you to get a real picture of just how much stealing has been going on. So that can be quite valuable”.
She added that where the courts were concerned, over the years, JIPO (and previously the Copyright Unit), when it came under the Ministry of Commerce, Science and Technology, made efforts to train members of the judiciary, customs and the police in matters of enforcement as it relates to Intellectual Property Rights (IPR) and the various offences or infringement issues.
Copyright is an author’s right that may be asserted by anyone who is a creator or the author of certain kinds of works, which include, literary, artistic, dramatic, musical, broadcast, films, cable programmes, and typographical arrangements in a published edition. Jamaica’s Copyright Act lists nine categories of works that are protected by copyright and any qualified author with works that fall within one of these categories, may claim or assert copyright.
“Copyright, being an author’s right means that you are entitled to do certain things in relation to your work, exclusively, and the Copyright Act also outlines what those exclusive rights are. It is the right to copy, issue copies, perform, show, play a work, broadcast a work, have it included in cable programme, have the work adapted perhaps into a foreign language and so on,” Miss Wilmot elaborates.
A copyright offence is committed where someone does any of those exclusive acts of the copyright owner or author without his/her permission. Anyone who wants to copy the work would need an assignment or a licence to use the author’s work and the author may grant that permission whether free of cost or for a fee.
“You can assert your copyright the very moment the work is created and the moment it exists in a tangible form. It is not enough to have an idea for a creative work. The creative work must actually exist whether in writing, recording, a photograph.so that what was formerly an intellectual concept, or an intellectual creative thing, now exist in some tangible property”, Miss Wilmot further explains, adding “you have copyright on creation of that thing. From that moment on, there is no need for you to do anything else to assert your exclusive rights in relation to that work,” Jamaica’s Copyright Act has no requirement for registration or deposit of a work and therefore, there is no formality required in order to get copyright or to take advantage of the rights associated with a work.
She states that the author really has two primary responsibilities. “The first is to ensure that the work is properly labeled, so that anyone picking up the work can readily identify the work with the author. This can be done by placing a copyright notice on the work, which include, the author’s name, word ‘copyright’ or the copyright symbol and the date on which the work was created”. The other responsibility is to keep proper records because since there is no requirement for registration, the author must ensure that he takes the necessary steps to keep records of his work.
In order to do that, Miss Wilmot says, authors are encouraged to practice the internationally recognized method, which is loosely referred to as ‘poor man’s copyright’. “It doesn’t require any great skill or large sums of money,” she points out, “It is something that the average ordinary man can do without any assistance and as we know, most of our very talented and creative authors and musicians and so on are very simple people who have to be afforded the possibility to really keep their records in a way that is not prohibitive”.
With poor man’s copyright, the author or owner of the work makes a copy of the work and (that copy should reflect that a copyright notice was on the original work). This copy is then placed in an envelope, sealed with the author’s address on the outside and sent through the registered mail at the post office.
“When you receive that sealed envelope, you keep it in a safe place and you have effectively created a piece of evidence that you can, if the occasion arises, present it to a court of law and the judge will then open the envelope at that time. The whole idea is to keep the envelope sealed. For it to be admissible, the envelope must be kept sealed,” Miss Wilmot advises.
An important pointer is to retain the post office slip and attach it to the envelope when the envelope returns to you. She also recommends that persons should create an index in respect of the various envelopes that they mail back to themselves. “If this is an artiste that has several works, he will have several envelopes, so you want to ensure that if you ever had to open one of these envelopes, you knew exactly which one you were going to open. So if some identifying mark was placed on the envelope and you had an index that accompanied that, then you would know which work was in which envelope,” Miss Wilmot says.
It is not detrimental if the author has to open the envelope. If you have to open an envelope, Miss Wilmot advises, put the old envelope in the new one so that you will still have in your possession, the date on which the first copy of the work was sent through the post. “It allows the author to effectively track time as to how he has been keeping the record of a particular work”.
Jamaica is signatory to the World Intellectual Property Organisation (WIPO) the WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty and it is intended to expand the scope of protection for copyright authors, performers and producers of phonograms insofar as they disseminate their work over the Internet. The WIPO Internet Treaties were put forward in 1996, but in order for it to have force at the international level it required the signature of at least 30 countries, which materialized in recent years.
On the international scene, there are a number of countries that have attempted to amend their legislation to reflect the provisions of the Treaty although they have not ratified. Meanwhile, other countries provide a ministry paper in which they outline what their position would be if they were to ratify and in the meantime, they try to ready their legislation for possible ratification, Miss Wilmot informs.
“At present, we have drafted what we believe will be effective amendments to the Copyright Act to actually implement the provisions of those treaties and this should be put into effect in the very near future,” she discloses.
Meanwhile, amendments to the Patent and Designs Act, she said, are far advanced and a Bill has already been drafted, while the Geographical Indications Act, another piece of important legislation was recently passed.
JIPO does specific training for various interest groups primarily through the JIPO lecture series. The Office has held lectures on copyright in schools (for teachers); broadcasting cable programmes; service marks, and a training session for members of the Organised Crime Investigation Division. “What we have tried to do is to find a way to reach all persons. Now that JIPO is in existence, it is pretty much a one stop shop,” Miss Wilmot says.
Further details on the work of JIPO can be accessed at: www.jipo.gov.jm

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