Abstract: This study problematizes international copyright policy by using a case study that can be said to exist outside of the copyright paradigm. Using works of mas in Trinidad and Tobago as my case study, I examine what a policy with the potential to protect it as a cultural product with commercial value would look like. In other words I am interested in the use of effective copyright policy as cultural security. I posit that a regional strategy with regional economic integration at its core can serve to protect its culture via preservation and commercialization. In this study a deficit in effective policy for works of mas, an integral feature of the Trinidad Carnival, is laid bare. This presents an opportunity for the expansion of culturally sustainable IP infrastructure. I will therefore discuss policy proposals put forth in the relevant literature, highlight current debates and suggest an alternative approach to its assessment.[1]
I sat down in Starbucks just a few days ago, joe in hand, to get some work done. Soon after, my ears perked up as the song “Rum and Coca Cola” floated through the coffee shop. Curious as to who would be listed as the author, I whipped out my phone and hit the Shazam button. Sure enough, a glistening album photo of the Andrews Sisters popped up on my screen.
The song by the American trio shot to number one on the Billboard’s pop hits chart on May 16, 1945. Copyright was registered to Morey Amsterdam in the United States. However two Trinidadian composers, the prominent calypsonian Lord Invader and his associate Lionel Belasco, claimed original authorship of the song’s melody. They claimed that after composing the song in the early 1940s, it was popular among locals during which time Amsterdam visited the island. After a hard won legal battle the plaintiffs were compensated, but Amsterdam still retained copyright. This means that today, it is Amsterdam’s estate that benefits from Starbucks playing a Trinidadian song.
This is just one example of why copyright and original authorship disputes are often also intertwined with issues of political economy, collective authorship and cultural appropriation. My LLM research uses this kind of logic to think about new ways of imagining copyright protection of works of mas in Trinidad and Tobago. This is mainly because the issue of how to protect mas, short form for “masquerade” and exhibited by the folkloric pairing of costumes and sound, poses a challenge to artists and the legal community alike; it is essentially a collective work with no single author and it goes against the very grain of what authorship is supposed to be. In other words legal rationale for mas is harder to pin down than the “Rum and Coca Cola” example. It requires an ingenious way of thinking about the philosophical underpinnings of copyright law to create a plausible policy proposal.
The specificity of a work of mas poses a particular complication for normative copyright claims in Trinidad. This is because a work of mas is not tangible. It is a performance that brings together the costume designer, bandleader, sound recording, choreographer and performers to produce an original creation. A work of mas is a performance which, although featuring original artwork, has a low threshold for certain criteria (such as originality and fixation, “two of the core requirements for securing copyright”[2]). Sharon Le Gall’s exploration of the steel pan, “considered the most important acoustic instrument of the twentieth century, arising from an urban, black underclass,”[3] presents a parallel discussion. It contemplates how the philosophies underpinning global IP practices can be challenged; “the justificatory bases for the grant of patents, particularly utilitarian theories for the encouragement of inventive activity, do not jibe with the origins of the steel pan.”[4]
Carnival stakeholders are now grappling with how to create a copyright policy that understands the complexity of works of mas and which can duly reward its creators. What complicates the matter is that mas has already spread with the Trinidadian diaspora so that people can find mini versions of the Trinidad Carnival worldwide. In this sense, the carnival arts have already been exported from Trinidad. Trade policy analyst Keith Nurse proposed a strategy for the IP protection of the Trinidad Carnival that would expand its industrial and export development where it already has currency in a global market.[5] A recent report published by the Caribbean Development Bank attributed increased interest in IP to “the continued movement of countries to an information-based economy.”[6] However, it states, there is a lack of education in the Caribbean culture industries about the translation of IPRs into economic gains.
Similarly economist and WIPO consultant Vanus James considers the contribution of copyright and related rights in the protection of works of mas to industry.[7] He uses works of mas as a case study to consider how copyright infrastructure can support the unique demands of Trinidad. He proposes growth in labour and import productivity to make Trinidad more competitive in the copyright sector.[8]
So, then, would a copyright policy to protect mas travel from the Caribbean to Nottingham to Miami to Toronto? And what about mas that is only inspired by Trinidadian culture but is arguably not Trinidadian? In my research I take a regional approach to copyright policy that follows the trend of regional trade and economic partnership agreements. In part I was inspired by the works of Eric Williams, renowned Caribbean nationalist. I also echoed the works of Le Gall and Suzanne Burke who call for the integration of preservationist strategies into a copyright policy.[9]
There may be arguments that one need not create more law. For example David Lange calls for benign neglect in the case of folklore and traditional knowldge where an increase in policy could be seen as too intrusive or complicated.[10] In his words, “[w]e would be well advised to act by not acting. We should let sleeping dragons lie.”[11] There is some truth here; overcompensating for a dearth in policy could result in a complicated minefield of minutiae. However the question remains whose dragons are made to lie while other dragons get to play with their fire. It is in this spirit we can think about the copyright economy of any work based on folklore or traditional culture.
Terrine Friday is an LLM graduate of Osgoode Hall Law School. She is currently an assistant for the human rights Partnership Development Project at Osgoode. Her recent research includes media policy in the Middle East and North Africa at the LSE and as a visiting student at the University of Oxford.
[1] A special thank you to Giuseppina D’Agostino, Ikechi Mgbeoji, Lynette Dennie, Sharon Le Gall, Suzanne Burke, Keith Nurse, Allison Demas, Vanus James, Ali Hammoudi, Jerusa Ali and Sas Ansari.
[2] Keith Nurse, Copyright and Music in the Digital Age: Prospects and Implications for the Caribbean (2000) 49 Social and Economic Studies 53 at 54.
[3] Robin Balliger, “The Politics of Cultural Value and the Value of Cultural Politics: International Intellectual Property Legislation in Trinidad” in Garth L. Green and Philip W. Scher, eds, Trinidad Carnival: The Cultural Politics of a Transnational Festival (Bloomington: Indiana University Press, 2007) at 200.
[4] Sharon Le Gall, Preserving One’s Narrative: Implications of Intellectual Property Protection of Folklore and Steel Pan in Trinidad and Tobago (1994) unpublished master’s thesis (Osgoode Hall Law School) at 7; see also Sharon Le Gall, Defining Traditional Knowledge: A Perspective from the Caribbean (2012) 58 Caribbean Quarterly 62.
[5] Keith Nurse, The Trinidad and Tobago Carnival: Towards an Export Strategy (1996) 5 Caribbean Labour Journal 5; and Keith Nurse, Copyright and Music in the Digital Age: Prospects and Implications for the Caribbean (2000) 49 Social and Economic Studies 53.
[6] Warren M. Cassell, The Creation and Commercialization of Caribbean Copyright, online: Caribbean Development Bank at 1.
[7] Vanus James, The Economic Contribution of Copyright-Based Industries in Trinidad and Tobago, online: World Intellectual Property Organization.
[8] Ibid. at 96.
[9] Burke, Suzanne. “Reinventing Inequality: State Policy and the Trinidad Carnival Complex” in Christopher Innes, ed, Carnival: Theory and Practice (Trenton: Africa World Press, 2012).
[10] David Lange, Comment: Traditional knowledge, folklore and the case for benign neglect, in Keith E. Maskus and Jerome H. Reichman International public goods and transfer of technology under a globalized intellectual property regime, 595 (Cambridge University Press 2005).
[11] Lange supra note 42 at 598.