A Supreme Court Judge recently ruled on an application by the Jamaican Association of Composers Authors and Publishers Limited (JACAP) to be granted specific disclosure of the financial statements of Horizon Entertainment and Communication Company Limited, pursuant to a default judgment that JACAP had obtained against Horizon for breach of copyright.

In hearing the application, the court discussed the legislative framework for licensing, by licensing bodies, the role of the Copyright Tribunal, and whether the disclosure of Horizon’s financial statements was necessary in order to assess the damages due to JACAP pursuant to its default judgment. Ultimately, the court ruled against granting JACAP its request for a disclosure order.

In setting out the reasoning for its decision the court cited the sections of the Copyright Act on which its relied. In paragraph 20 of the written judgment the court first cites section 88, which is applicable to sections 89-94. The court states that those sections speak of “certain types of schemes” being referred to the Copyright Tribunal.

In paragraph 21, the court states that proposed or existing licensing schemes can be referred to the Copyright Tribunal “by any person that wishes to acquire a licence of a class of case operated under the scheme” for the tribunal to confirm or vary the terms of the scheme.

However, in paragraph 22, the court goes on to state that the tribunal is empowered to consider new schemes from licensing bodies pursuant to section 96 of the Act and that licensing bodies can submit proposed schemes to the tribunal prior to any challenge from potential licensees.

While such a scenario would certainly be helpful to licensing bodies, no such provision actually exists in the Copyright Act of Jamaica. In fact, Section 96 states that only a prospective licensee can refer the licence to the Copyright Tribunal. Additionally, the Act very clearly states that section 96 refers to licences issued by the licensing body otherwise than in pursuance of a licensing scheme (described in section 95). This section was therefore not relevant to the determination of the case.

If one reads the entire Copyright Act, or even the parts pertaining to licensing, one will see that nowhere in the Act is a licensing body permitted to initiate a tribunal review of either a licensing scheme or a standalone licence. A licensing body can only lawfully approach the tribunal after a licensee has brought a matter to the tribunal and the tribunal has ruled on it (sections 91 and 93).

In the present case, JACAP could not apply to the Copyright Tribunal because the Copyright Act does not allow JACAP to do so. Only Horizon could approach the tribunal.

Perhaps that is what the attorney for Horizon Entertainment, Chukwuemeka Cameron ought to have advised his client to do, which might well have prevented litigation. Unfortunately, he extended the confusion. He published an article in the Jamaica Observer on Sunday, Sepetember 22, 2024 claiming that “JACAP had not fulfilled the statutory requirement of having a tribunal-approved licensing scheme that clearly defines rates and terms for the use of copyrighted works”. He made this erroneous statement, not once but twice.

As to whether the Copyright Tribunal exists, as was questioned by the Court in paragraph 23 of the ruling, yes, it exists. As a former secretary to the tribunal I can confirm that it does. It came into existence at the same time as the Act in 1993. The schedule setting out the tribunal and its conduct is attached to the Act (pages 126-128). A quick call to the Jamaica Intellectual Property Office (JIPO), which is the secretariat for the tribunal, confirmed that while it exists it isn’t being used.

Perhaps the lack of use has more to do with the reluctance of prospective licensees, like Horizon, to be bound by a tribunal decision requiring it to pay than the lack of publicity about the tribunal’s existence. JIPO, nevertheless, has work to do to promote the availability and role of the tribunal to prospective and current licensees. As a copyright consultant to another licensing body I am also aware that the Jamaican licensing bodies have sought an amendment to the Copyright Act to allow licensing bodies access to the tribunal to raise the very issues lightly touched on in the court ruling. But the Government has not granted that access.

In his article, Cameron stated that a stable business environment requires laws being “applied transparently and predictably”. Let me add that a stable business environment firstly requires laws being correctly understood and accurately applied.

Philippa Davies is an attorney-at-law. Send comments to the Jamaica Observer or padavieslaw@gmail.com.