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NOT SO FAST MINISTER HYLTON: Jamaica's wrong move on copyright

Published:Thursday | August 27, 2015 | 11:12 AM
Two of Jamaica's musical pioneers, Noel 'Skully' Simms (left) and Stranjah Cole performing.
One of Jamaica's ska greats, Eric Monty Morris.

Last Sunday, The Gleaner published a submission from Minister of Industry, Investment and Commerce Anthony Hylton titled "The amendments to the Copyright Act: a critical component of the creative economy," in which he praised the recent changes and argued that they were best for Jamaica. However, The Electronic Frontier Foundation (EFF), the leading non-profit organisation defending civil liberties in the digital world, believes the amendments will hurt rather than help Jamaica. Here is a reproduction of the EFF's take on the issue.

A bill extending the term of copyright by an additional 45 years - almost doubling it in the case of corporate and government works - sailed through the Jamaican Senate on June 26 after having passed the House of Representatives on June 9.

The copyright term in Jamaica is now 95 years from the death of the author, or 95 years from publication for government and corporate works. This makes it the third-longest copyright term in the world, after Mexico and CÙte d'Ivoire, respectively, with 100 and 99 years from the death of the author.

Worse than this, the extension was made retroactive to January 1962. Besides being the year when Jamaica attained independence, 1962 also just so happens to have been the year when Jamaican ska music (a popular genre in its own right but also a precursor of the even more popular reggae) burst on to the international music scene.

The parallels with the extension of the United States copyright term in the "Mickey Mouse Protection Act" are quite eerie, but, worse than what happened in the US, the retrospective effect of the law means that works that have already passed into the public domain in Jamaica are now to be wrenched back out again.

Jamaica will now be one of the last countries in the entire world to enjoy free access to works that are already in the public domain in the United States such as Charlie Chaplin's The Kid, from 1921.

If Jamaica hoped that this measure would bring in additional royalties for its musicians from overseas markets, then the tactic that it chose to pursue was doomed to failure from the outset.

Foreign users of Jamaican copyrights are not bound by the extended copyright term - only Jamaicans are - but conversely, Jamaicans are now obliged to honour foreign copyrights for the full extended term.

The opposition spokesperson on culture, Olivia Grange, put it during debate on the new law: "What will happen is that we will, in fact, be paying out to foreign copyright holders in foreign exchange for the continued use of foreign works in Jamaica, while our own rights holders will only benefit up to the 50, 70, or 80 years that exist in other countries."

So all that this measure has accomplished is that citizens of Jamaica, a developing country, will be paying more money into Hollywood's coffers, while Jamaica's own rich cultural heritage draws in not a penny more in return. Yay?

This measure is so stupid on its face that it is a wonder it passed through Parliament at all. But what pains us even more is that it was deemed so trivial a change to the law that it went unreported in the press until it was already a fait accompli.

We could have spotted it earlier, and we're not proud of missing it. But it also came as an unwelcome shock to all the other activists with whom

we work, including the International Federation of Library Associations and Institutions, whose members in Jamaica have suffered a sudden and severe setback to their mission to preserve and disseminate the early written records of newly independent Jamaica.

That fact that proposals to lock up copyright works for an additional two, three, or four decades or more, isn't even considered newsworthy is something that we want to urgently change especially now that six countries around the Pacific Rim are facing that very prospect, all at the same time, with the impending conclusion of the Trans-Pacific Partnership (TPP) that could enshrine a life plus 70-year copyright term in stone.

Copyright term extension is not a positive sum, or even a zero sum game. It enriches big media corporations, not struggling artistes; it impedes libraries, archives, educators, and people with disabilities; and it locks away an entire corpus of works that belong in the public domain, preventing them from being repurposed by a new generation of artistes and innovators (particularly in countries, like Jamaica, that lack a "fair use" right).

Jamaica has, sadly, fallen into the copyright trap, and it may be too late for it to escape. But it isn't yet too late for Canada, Japan, Malaysia, Brunei, New Zealand, or Vietnam.

Over the following weeks, we will be highlighting the harmful effects of the extension of copyright terms in some of these countries and providing an easy mechanism for you to use to take action in these final days of the negotiations of the TPP.

On our TPP's Copyright Trap page we link to more articles about how the threat of copyright term extension under the TPP affects users around the world.

n Jeremy Malcolm joined EFF's international team in 2014 to lead their work fighting for more balanced intellectual property laws and policies for Internet users and open innovators. His background is as an information technology and intellectual property lawyer and IT consultant. Malcolm is admitted to the bars of the Supreme Court of Western Australia (1995), High Court of Australia (1996), and Appellate Division of New York (2009). He is a former co-coordinator of the Civil Society Internet Governance Caucus; founder of Best Bits; and currently, a steering committee member of the OECD Civil Society Information Society Advisory Council.