20.09.22

The protection of rights in Jamaican art: an essential factor in making our mark on the world

Kimberley Brown
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The protection of rights in Jamaican art: an essential factor in making our mark on the world

Emerging from a state of bondage that sought to stifle self-expression, Jamaicans are known worldwide as an expressive and artistic people who share our thoughts and ideas through various artforms including our music, poetry, paintings, dance expressions and literature. These artforms are afforded protection by our Copyright Act 1993, as amended in 1999 and 2015, the Berne Convention for the Protection of Literary and Artistic Works, and the Common Law. 

The Copyright Act
The works protected under the Act include original literary, musical, dramatic or artistic works, sound recordings, films, broadcasts and typographical arrangements of published editions. Dramatic works include a work of dance or mime, and artistic works include graphic work, photograph, sculpture or collage and a building or a model of a building.

Copyright is a proprietary right that subsists in protected works. The owner of copyright in a work, usually the author of the work unless there is an agreement to the contrary, has the exclusive right to copy the work, make an adaptation of the work, issue copies of the work to the public and perform, play or show the work in public. The author of a protected work is also entitled to being acknowledged as such, and to being compensated for the making of copies and publication of the work by any other person. The Act offers protection to even performers of protected works, by providing that they are entitled to being compensated for publication of their performances. 

With the 2015 amendments to the Act, the duration of copyright protection in any literary, dramatic, musical or artistic work, sound recording, film or broadcast was increased from fifty years to ninety-five years, but the point at which time begins to run differs depending on the work. A typographical arrangement in a published edition has a shorter term of protection. The 2015 amendments increased the duration of protection in such works from twenty-five years to fifty years, from the end of the calendar year in which the edition was first published. 

The increase in the duration of copyright interests allows Jamaican creators and their estates to enjoy the benefits of copyright protection for a longer period, and this has significant implications for the use of art worldwide, as international stakeholders would be grateful for the opportunity to freely exploit, sooner than later, certain protected works produced by Jamaicans. In fact, Jamaican art including our music is often featured in the work of non-Jamaicans, as the talent of our creators and quality of our artforms have inspired much international respect and admiration.

The provisions of local and international laws, create the legal framework that allows Jamaicans to be compensated for the use and enjoyment of our works, and for the world to know and acknowledge that such works are distinctively Jamaican. 

The Berne Convention for the Protection of Literary and Artistic Works and the Common Law
The Convention plays a major role in providing Jamaican creators with the recognition and rewards deserved. Countries, including Jamaica, that have incorporated the provisions of the Convention in their jurisdictions, are required to afford the same or similar treatment to the works of foreign authors as provided to those of their own nationals. Works that are protected in Jamaica automatically benefit from independent protection in the more than 150 other States that are contracting parties to the Convention. The duration of protection in each Convention country differs depending on the local laws of the country but, unless the legislation of that country provides otherwise, the duration of protection shall not exceed the term fixed in the country of origin of the work. As such, the ninety-five-year protection period afforded to certain Jamaican copyright owners in our Copyright Act, helps to establish circumstances that are conducive to Jamaican works being protected in other countries for a longer period than the minimum of fifty years required under the Convention.

Another crucial component of the law on copyright that is in favour of right owners, is the fact that a copyright interest does not have to be registered for it to exist. The local legislation of a Convention country may require registration of a work before the rights arising from the work can be enforced in the courts of that jurisdiction, but the right may exist without registration, and countries such as Jamaica do not require the registration of copyright for the enforcement of such rights in court. In fact, copyright is recognized as a proprietary right in the Common Law. 

The remedies generally available locally and internationally, in Common Law and/or under statute, to an owner of a copyright interest that was or is being infringed, often include damages or an accounting of profits earned from the infringement, and where appropriate, an injunction to restrain the unlawful actions.

Acknowledging and protecting the rights in Jamaican art is one means by which Jamaica continues to stand out internationally, building and maintaining a reputation as creatives of excellence. Let’s not underestimate the power of our artistic expression in making our mark on the world map.

Kimberley Brown is an attorney at Myers, Fletcher and Gordon and a member of the firm’s Commercial Department. She may be contacted at kimberley.brown@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.