08.02.17

How ‘exclusive’ are exclusive broadcasting rights?

Jahmar Clarke
This email address is being protected from spambots. You need JavaScript enabled to view it.
(876) 922-5860 or (876) 803-0776
How ‘exclusive’ are exclusive broadcasting rights?

In an age of video blogging, new cable providers, twitter journalism, ambush marketing and the likes, the question is asked - To what extent can I use copyrighted work? How exclusive are exclusive broadcasting rights? The Court has made pronouncements that no breach of copyright occurs if the broadcaster dealt fairly with the copyright protected work of another for the purposes of criticism or review.

The advent of social media, including the use of Whatsapp, Twitter, Facebook and Instagram has created a situation in Jamaica where video bloggers (vloggers) gain popularity literally overnight sometimes and there may be serious ramifications for what started out as an ‘ innocent’ post but blossomed into the number one trending video in the island on social media. Video bloggers such as Carla Moore, Dutty Berry, Andrew Trabass and social commentators such as @twittatimes and @emCeeKane will have to ensure that any use of copyright work on their part constitutes fair dealing or review or they may find themselves on the wrong end of a copyright infringement claim.

A few lessons for the vloggers may be gleaned from the case of Television Jamaica Limited v CVM TV Limited where TVJ alleged that CVM TV breached its exclusive rights to broadcast the 2015 World Athletic Championships. The case shed some light on grey areas concerning exclusive broadcasting rights. The Court noted that use of the footage by CVM in CVM's flagship newscast at 8 p.m. did not breach our copyright law but the use of the images on social media by CVM and in the program “Return to the Nest” constituted a breach. TVJ was awarded $16M in compensation (thought this award is under appeal).An exclusive right to broadcast is not an absolute right. There are statutory defences to what would otherwise be a breach of copyright. The Copyright Act creates the defence of fair dealing. Fair dealing reflects the constitutional right of freedom of expression in that provided there is 'fair dealing’ ; freedom of expression displaces the protection that would otherwise be afforded to copyright. This means that vloggers who will pull excerpts and clips from programs and use it for the purposes of commenting and reviewing may be protected by law.

In the Television Jamaica v CVM TV Limited case the Honourable Mr. Justice Bryan Sykes reasoned that the protection for users of the copyrighted work extends beyond news agencies and broadcasters in radio, television and cable to journalists, reporters, as well as ordinary citizens. Broadcasters, journalists and reporters have no greater rights under this provision than ordinary citizens. It is not about who can report current events but whether the report is of current events.

Therefore, it is important to note that this protection not only extends to traditional broadcasters but to ordinary citizens and vloggers who express their opinion on a copyrighted subject matter.

Jahmar Clarke is an Associate in the Litigation Department at Myers, Fletcher & Gordon. He may be contacted at jahmar.clarke@mfg.com.jm or www.myersfletcher.com This article is for general information purposes only and does not constitute legal advice.