Caribbean Intellectual Property Controversies: The Steelpan

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Caribbean Intellectual Property Controversies: The Steelpan


Grace Bhagwandeen

and

Dr Justin Koo


Our beloved steelpan musical instrument is one of the most iconic symbols of our Caribbean culture and identity. Surprisingly enough, the identification of its ownership and protection through intellectual property law, specifically the ‘patenting’ of the steelpan has been quite a controversial issue. This blog post explores some of the intellectual property discussions that have arisen with regards to the steelpan. Admittedly, much of the furore would appear to be the result of fundamental misunderstandings of intellectual property rights and intellectual property law.

Although the steelpan first originated in Trinidad and Tobago, it symbolises the very essence of Caribbean music and the entire region has been involved in the struggle to recognise the steelpan as its own. The original invention of the steelpan which is dated circa the early 1940s was never patented. It is unclear whether there was an identifiable inventor or inventors and moreover, the formal filing process for a patent never occurred. As such, the making and selling of steelpans were available to everyone. Moreover, with the public release of the steelpan and the traditional handcrafting method used in Trinidad and Tobago, the novelty of the invention was disclosed, rendering the traditional steelpan unpatentable.

Despite the unfortunate reality that the traditional steelpan was never patented and subsequently became unpatentable, there have been common misconceptions that Trinidad and Tobago ‘lost’ the steelpan patent. This misunderstanding was prominent in the aftermath of Americans, George Whitmyre and Harvey Price, being granted US patent US6212772B1.[1] There have been numerous outcries about outsiders 'stealing' the pan, the usual cultural appropriation rhetoric and the idea that no one outside of Trinidad and Tobago could ‘own’ the steelpan.[2]

However, these misguided critiques on the situation failed to consider at least two key patent law concepts. Firstly, that patent US6212772B1 concerned a different production process for the making of the steelpan – using a hydroforming press. Therefore, this was a different invention, patentable on its own accord and not related to the owning of the concept/idea of the steelpan itself. Secondly, the principle of territoriality was forgotten. The patent granted was territorially limited to the USA and in the absence of being granted in Trinidad and Tobago, had no direct impact on the traditional manufacture of steelpans. However, it is conceded that the patent had financial implications for the traditional makers of steelpans. 

On a different note, it should be highlighted that scientists at The University of The West Indies, St Augustine and CARIRI had carried out extensive research in the area of manufacturing steelpans, but they did not apply for any patents. The lack of patents flowing from that research demonstrated a lack of understanding of the value of intellectual property and even more so a lack of appreciation for the protection of cultural elements.

Fast forward to 2013, and the approach to patenting and the steelpan changed tune. The Government of Trinidad and Tobago successfully applied for a patent for the G-pan musical instrument, invented by Professor Brian Copeland.[3] The G-pan is protected in over 20 territories. While this was heralded as a victory, the reality remains that there is a need for greater intellectual property education and invention financing to encourage more persons to engage in inventive activities. Intellectual property offers a plethora of opportunities for personal and commercial sustainability.

Even though the traditional steelpan cannot be patented, there remains a wealth of opportunities surrounding the steelpan. The steelpan remains an iconic image and has been used in the branding and packaging of many companies. Notably, TT Fine Cocoa Company sells its trinitario chocolates in steelpan shaped packaging. This should be subjected to a registered trade mark to preserve the value in the brand. Alternatively, there are many ways in which the steelpan can be enhanced as evidenced by patents being granted around the world for improvements to the traditional instrument.

Although there is clear recognition that the steelpan originated in Trinidad and Tobago, if intellectual property rights are not harnessed effectively, Trinidad and Tobago and the Caribbean risk being relegated to the annals of history concerning the steelpan. The onus is on us to develop and protect the next generation of the steelpan, learning from the missed opportunities of the steelpan's forefathers. 

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