Mark Lyndersay
“As with bicycles, if you don’t own it, you can’t sell it.” —Jorgen Blomqvist.
On July 17 and 18, the National Carnival Commission played host to two days of seminars on the topic of copyright in Carnival.
What was planned was a definitive airing of the legalities, restrictions and realities of copyright as it is applied to the national festival.
What emerged was some anger, some confusion and a lot of uncertainty about exactly how copyright should be effectively applied to the management, protection and effective exploitation of the annual event.
Both Sonia Cruickshank, senior programme officer, Copyright Development Division of the World Intellectual Property Organisation (Wipo) in Geneva and Jorgen Blomqvist, a well-regarded copyright expert from Copenhagen, who was described as a contributor to the Works of Mas addendum to the T&T copyright act, sought to bring some basic understanding and common agreement on basic copyright concepts as they are applied to the many interests in Carnival.
Cruickshank noted in her opening address that “copyright protects original expression,” and that protection extends for the life of the author plus 50 years. There is no registration needed for new works, but the burden to prove authorship rests with the creator.
Things began to warm up during this session after the Wipo representative explained the difference between an idea and execution as separate concepts under law.
In Cruickshank’s example, which drew the first murmurs from the crowded VIP lounge at the Grandstand, the sketched design of a jacket can be copyrighted but the finished product is only protected under industrial design laws, which protect the look of an object (but not its operation) for 15 years.
In addition, there is a need to protect such designs and trademarks in each jurisdiction in which they are used, a key issue for bandleaders and performers who work outside of T&T after the Carnival season.
After Richard Aching, manager, Technical Examination of the Intellectual Property Office in Port-of-Spain showed a hugely embarrassing video of Trinidad Carnival, presented to Wipo to explain the Works of Mas concept, he proceeded to offer earnest homage to the traditional forms of Carnival, largely absent from that video and either on the verge of disappearing or in severe decline, as examples of creative works clearly protected by the Works of Mas clause of the T&T copyright act.
Both Cruickshank and Aching had stepped gingerly around the possibility that most of the costumes produced for Carnival may not be distinctive enough to be protected as original works.
It wasn’t the first example of the disconnect between the technocrats overseeing Carnival’s copyright and the artists and performers it is supposed to protect to emerge over the 16 hours of seminars, but this early in the game, it was telling.
According to Aching, under the umbrella of industrial design protection, where the legal protection for costumes properly belongs, there have been exactly two costumes registered to date.
For most, it’s already too late, because such protection must be applied for when the work is less than 12 months old.
The IPO manager, who operates out of the Ministry of Legal Affairs, explained that design solutions and devices in the mas camp may prove useful and profitable if they solve problems in other industries and should be protected.
Jorgen Blomqvist, an astute and careful reader of the tone of the local conversation tread carefully when noting that the Works of Mas clause was an example of Sui Generis (class of its own) rights under international copyright conventions and those haven’t tended to work out particularly well.
He noted that one effort to create a class of copyright for computer programmes never materialised and another for databases never caught on. In both cases, a careful and specific reading of mainstream copyright law proved a better and more sustainable option.
“Sui Generis rights regimes collapse,” Blomqvist noted, “You should rethink your copyright law and reconsider.”
Blomqvist would be the first to explain the difference between performances and fixed recordings under copyright law, and it would take repeating by Senator Anthony Viera and Brazil’s Daniel Campello Queiroz before it began to sink in that street parades are not something that can be protected under copyright.
Blomqvist offered the World Cup as an example, noting that a game of football can’t be copyrighted, but access to the stadium can be controlled and the right to record can be constrained through contractual arrangements.
“The football game may not be protected, but a television production of it is a work of authorship,” Blomqvist noted.
“The right that’s sold is not copyright, it is a contractual agreement that grants access.”
But such a contract, Blomqvist warned, binds only the parties who sign it.
The status of Works of Mas, would become one of the flashpoints of the first evening and the next day after Dr Vijay Ramlal rose to claim triumphantly that the Government was pursuing the Works of Mas clause as part of a treaty which would identify T&T as the domain country for such designations.
This prompted Dr Lester Efebo Wilkinson to call on the IPO’s Richard Aching to clarify and then to deny the assertion.
The matter would flare up again the next day after Dr Ramlal circulated a document declaring the matter to be still under consideration at the Wipo and once again prompting a response from Dr Wilkinson.
That matter, which threatened to consume the discussion, ended after a lunch time huddle between the parties involved and an agreement that seemed to satisfy the aggrieved parties but meant little to anyone in the room beyond that exalted circle.
That seemed to be the tone of far too many of the discussions, a focus on high-level governance issues that were abstractions to the creators who hope to be protected by this legislation.
The scale of the disconnect also seemed to affect NCC Chairman Allison Demas who asked the panel at one point, “What about the designers? We don’t seem to be talking about them at all.”
For that matter, nobody seemed to be talking about creators at all, beyond their nebulous presence as creators of copyrightable works and the whole event remained determinedly focused on business and legislators, which left the few actual mas creators in the audience quite annoyed when their turn came at the microphone.
More distractions emerged after the useful though largely parallel discussions about Brazilian carnival introduced by Daniel Campello Queiroz that described a Carnival proscribed by business concerns that may look and sound like T&T’s street party but is quite different (see sidebar).
Senator Anthony Viera offered some hard legal facts to the audience during the second day’s sessions that caused some raised eyebrows.
With a brisk, pointed style, he noted that in T&T, the precedent is English common law and there is no right to privacy. Anyone can take a photograph of a person in a public place.
There is also no law prohibiting the publication of a person’s likeness in an advertisement. Advertisers and the media have a gentleman’s agreement not to do so.
A performer has no intellectual property rights in a performance, only the right to be identified and to not have their performance “distorted.”
It’s only when that performance is fixed, in a still photograph or video recording that it becomes a copyrightable property.
In exploiting such properties, the copyright act notes that consent must be given by the performer or subject, but doesn’t explain how that consent should be given.
These points, rather colourfully raised by the unusually blunt lawyer, got Peter Minshall to his feet for the third time during the event to speak on behalf of the creators who seemed destined to be ants in this elephant’s party of legal speak.
That wouldn’t change in the closing talk of the event, an engagingly presented but hopelessly dense explanation by economist Dr Vanus James on the steps that need to be taken to develop the Carnival industry.
By then, it was way too much for an audience buffeted by revelations, complications and an engagement with a Carnival culture that’s always seemed similar to our own that turns out to have entirely different organisational DNA.
The next step for this worthwhile engagement with Carnival copyright issues would be wider dissemination of the recordings and papers prepared for this event, which need to be seen and considered by more Carnival practitioners before they can begin to grapple with the enormity of Dr James’ recommendations for the future.
About Brazil’s Carnival
Brazil’s Carnival may have elaborate costumes, pretty girls in skimpy outfits and hard driving dance music in common with T&T, but the two events are quite different things.
Copyright lawyer Daniel Campello Queiroz was upfront that his perspective was business and not culture, but his insight into understanding Brazil’s Carnival proved invaluable.
The Brazilian government has no role at all in the annual event, and it’s largely driven by the involvement of GloboTV, the privately owned multimedia conglomerate that oversees the keynote performances of the samba schools at the Sambadrome.
Virtually everything about the event involves a collective assignment of rights. Performers get their costumes for free (except for tourists who pay for the privilege to participate), but they assign their rights to the samba school.
The Samba schools assign their rights, which include those of the song created each year for them, to LIESA, the Independent League of Samba Schools, which negotiates with GloboTV and other bodies that exploit the music and ancillary products that are now emerging as potential sources of revenue.
It’s not a perfect arrangement. The Samba schools are struggling to improve their income through alternative revenue streams and there are cultural strains as well, but Brazil pulls in a million tourists just for Carnival every year, a T&T’s worth of people arriving to party there. Transparency in dealings with a massive private broadcast company are also an issue.
What’s also clear is that trying to find parallels between the local experience and the Brazilian experience is largely useless beyond getting an insight into what might have happened locally if private enterprise had kept control of Carnival through the latter half of the twentieth century and Government had not taken control.
Brazil doesn’t incur a taxpayer-funded quarter-billion dollar deficit every year to host its Carnival, but it does have really expensive Samba school branded caps.
Despite that, the Samba schools have 60 per cent participation by the poor of the country, rising to 90 per cent in the drum bands that drive the bands along the length of their performances.
There are similarities in the management of rights, in the handling of media access to the Sambadrome to the T&T process, but there are also huge differences, which include the need to clear rights before publishing to social media sites like Facebook, which is considered a commercial use because of Brazil’s more restrictive public privacy rights.
GloboTV’s business model was developed in the 1970’s for football and is enabled and guided by The Pelé Law. Section 42 of the Law 9.615/98, states in rough translation, “to the sports entities belongs the right to negotiate, authorise and prohibit the fixation, transmission or retransmission of image of shows or sporting events which are involved.”
Those transmissions include elaborate live video composites of advertising messages, superimposed over a locked down wide camera position showing the performers in the stadium and the massive audience. In a typical band appearance there are more than two-dozen such visual effects inserts, the lion’s share of which are advertisements.
