How to NOT Get Away with Copyright Infringement

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How to NOT Get Away with 

Copyright Infringement


Dareem Scipio LLB


“No Copyright Infringement intended. I do not own the rights to the music in this video!” I am sure you are accustomed to seeing this phrase as you scroll through your various social media profiles and streaming platforms.  Maybe you are guilty of having used such line at some point in your life. You see the line as your protection against being sued and so you include it in the caption of every post where the works of others is featured. You feel safe, assured, at peace. However, contrary to popular belief, the words “no copyright infringement intended” offer absolutely no protection to individuals who use and share the works of others without permission. While copyright law does provide exceptions and limitations to avoid copyright infringement, these are often very specific and narrow in focus.

In the Caribbean, exceptions and limitations to copyright infringement are generally covered under the concept of fair dealing. A product of statute, fair dealing permits specific categories of uses of copyright without an individual needing permission from the copyright owner.[1] These include for example the private reproduction of a single copy for exclusive personal purposes,[2] the use of a work for research and private study,[3] use for the reporting of current events,[4] and finally use for criticism and/or review.[5] Importantly, using a work for one of the aforementioned purposes does not automatically mean that such use is fair. In the seminal case of Hubbard v Vosper[6] Lord Denning (as he then was) held that the determination whether a particular use is fair is a question of fact and degree. Essentially this means that beyond considering whether a work is copied, the substance of what is copied must also be considered. Importantly, substantiality is measured both quantitatively and qualitatively and thus it is not unusual to find a small part of a work as being considered substantial. Notably, both Jamaica and Barbados employs the wider US fair use criteria in interpreting what constitutes fair dealing (the two concepts are NOT the same). While there are obvious problems that may possibly arise from the use of such an approach, the focus of this blog post is outside of that discussion.

The intricacies of the law having been considered, it is clear that copyright law does try to balance the rights of copyright owners and users (members of the public). However, one is confined in what they can and cannot do and the extent to which they can do so. The “no copyright intended disclaimer” clearly ignores this express limitation and is often used for purposes not covered under the terms of the fair dealing provisions resulting in prejudice to the owner’s rights. Importantly, the exceptions under fair dealing are exceptions that only come into play when a claim of infringement has been filed and thus a person is not required to use disclaimers if their use falls within one of the permitted categories. This fact makes the whole “no infringement intended’ disclaimer funny, absurd and superfluous in some instances.

So, what’s the verdict? The likelihood of getting sued for copyright infringement by some celebrity far away (whilst having the “no intention to infringe” disclaimer) is low. However, be warned that it is not far-fetched or impossible. So, what can you really do to protect yourself from lawsuits? Seek permission from the original copyright owner or its assigns/licensees, usually in the form of collective management organisations or independent management entities! I see you scratching your head wondering how you are going to get permission and afford to use your favorite celebrity star’s music for your new mixtape or that promotional video for your business. I understand. However, instead of using disclaimers that have no protective effect, where permission cannot be obtained one should consider ‘free’ alternatives such as Creative Commons licensed works. According to creativecommons.org,[7] Creative Common licenses gives creators a standardised way to grant members of the public permission to use their creative work(s) under copyright law. There are various types of licenses attributed to works covered by the Creative Commons regime.[8]However, each license has its own terms and conditions and one will therefore be required to conduct due diligence before proceeding with use. Alternatively, one can confine themselves to uses that are considered fair according to statute so that they would have a true defence in the event that a claim of infringement is made. The point is, using methods that are legally permissible removes the need for you to include any disclaimer whatsoever thereby saving you time and possibly money (lawsuits).


[1] Copyright Act 1997 (TT) s.9-17; Copyright Act 1993 (JM) s.52-67; Copyright Act 1998 (BIM) s.51-66.

[2] Copyright Act (TT) s.9 (1).

[3] Copyright Act (JM) s.52; Copyright Act (BIM) s.51.

[4] Copyright Act (TT) s.13; Copyright Act (JM) s.53 (1) (b); Copyright Act (BIM) s.52 (1) (b).

[5] Copyright Act (JM) s.53 (1) (A); Copyright Act (BIM) s.52 (1) (A); Copyright Act (TT) s.13.

[6] Hubbard v Vosper [1972] 2 QB 84.

[8] ibid.

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