Are Creators Getting Value For Their IP? Reforming The Way CMOs Operate In Trinidad And Tobago

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Are Creators Getting Value For Their IP?

Reforming The Way CMOs Operate 

in Trinidad and Tobago


Dareem Scipio*

and

Sherry Hinds*


Collective Management Organizations (CMOs) are an essential organ of all creative industries. They assist creators in the management of their intellectual property by monitoring the use of works, issuing licenses and most importantly, collecting and distributing royalties. Without them, the value attributed to copyright protection will be too burdensome for individual rightsholders to effectively pursue and subsequently enforce especially in the context of music. However, for many years, artistes, producers and other persons in T&T’s entertainment industry have found themselves at the mercy of these organizations. Their predatory practices are largely facilitated by the absence of a regulatory framework to govern the operations of CMOs in T&T.

Presently, there are (3) CMOs involved in the management of musical rights in T&T: Copyright Music Organization of T&T (COTT), T&T Copyright Collecting Organization (TTCO) and Advancing Writers Entertainers Singers on Music Endeavors (AWESOME) each with their own objectives and operating methodology. The TT Copyright Act contains no express provisions governing the creation and operation of these entities and so the owners of these entities have free reign in utilizing opaque and abusive procedures, to the detriment of the rightsholder. This blog post will focus on (3) critical risk factors that result from this lack of regulation namely; the monopolistic and anticompetitive nature of CMOs in T&T, the lack of transparency in the collection and distribution of royalties and the confusion caused amongst users of copyright works.

Monopolistic and Anti-Competitive nature of CMOs

Copyright Management Organizations at their core are monopolistic in nature. This is especially true in Trinidad and Tobago where although there are various organizations operating side by side, certain organizations unilaterally claim to have exclusive rights to manage a specific category of rights. For example, TTCO claims to have the exclusive right to manage the rights of performers and producers (neighboring rights) while COTT claims to have full jurisdiction for the rights of authors and composers. Notably, in 2019 TTCO filed a Judicial Review claim against the Attorney General seeking amongst other things a declaration from the court that any person wishing to use a certain category of works must obtain a license from them.[1]Not surprisingly, alongside this fight for exclusivity is the rise in anti-competitive practices.  Examples of anti-competitive practices include knowingly misrepresenting the list of works in ‘secret’ repertoires and the practice of attempting to coerce artistes and other rightsholders to join particular organizations through misrepresentation. These anti-competitive practices supported by the absence of any formal regulation mechanism is one of the biggest risk factors associated with CMOs in T&T.  

Lack of transparency in the collection and distribution of royalty payments

Artistes, Composers, and Producers have publicly complained for years about the lack of transparency when it comes to the collection and payment of royalties. Right-holders are often unaware of how exactly royalty payments are calculated.  Many have also complained about receiving cheques that do not co-relate with the use of their works. It must be emphasized that in order to fully develop their craft, rightsholders need the full benefit of their work, which includes the payment of all royalties due to them. The inability of CMOs in T&T to conduct their affairs transparently deny  young persons in the industry of the opportunity to develop their craft.

 Confusion amongst users of Copyright works

Every carnival season, users of copyright works find themselves embattled in legal challenges. For example, many promoters are often threatened that their fetes will be shut down if they do not pay for a license from a particular CMO. While it might be the case that a lack of due diligence on the part of promoters sometimes contributes to the confusion each year, the root cause lies with the CMOs themselves. Again, the relationship between the CMOs and copyright users is characterized by a lack of transparency. Notably, CMO’s have been accused of not making publicly available the list of works that are contained in their catalogues. Thus, promoters are often expected to pay for licenses without any actual proof that the work intended to be used is assigned to the CMO in question.  However, the case of TTOC v NCC and National Carnival Bands Association[2] highlights that CMOs cannot always be trusted and their representations blindly accepted. Additionally, there is the issue of CMOs attempting to administer rights for controversial copyright works such as works of mas. This is problematic because it is unclear what constitutes a work of mas and moreover, whether the works that CMOs claim to represent even amount to works of mas.

These deceptive practices and lack of understanding of IP Laws hurt rightsholders.  Beside the fact that defending legal challenges are expensive, promoters may unjustifiably find themselves paying for two licenses when in reality only one is required. Alternatively, it is also the case that some promoters simply pay for the cheapest licence available. These experiences can serve as push factors thereby threatening the overall sustainability of the industry. 

Recommendations and Conclusion

The time has come for CMOs to shape up or ship out. It is also very clear that legislators must now insert themselves by passing regulations to govern the operations of these entities as other countries in the world have successfully done. There should be a dedicated oversight body to enforce these regulations and, in this regard, I propose the expansion of the Intellectual Property Office, already in existence. As for the rightsholders themselves, the emergence and rise of Independent Management Entities offers a desirable alternative worth exploring.


* Contact Dareem Scipion at studentscipio@gmail.com. 

* Contact Sherry Hinds at sherryhinds592@yahoo.com.

[1] Trinidad and Tobago Copyright Collection Organisation v Attorney General of Trinidad and Tobago & the Controller of Intellectual Property Office, CV2018-04838.

[2] TTOC v NCC and National Carnival Bands Association CV2014-02732.

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