Dear Editor,

The Jamaica Association of Composers, Authors, and Publishers (JACAP) is strongly refuting claims made in an opinion piece published in the Jamaica Observer on September 22, 2024, headlined ‘JACAP has work to do’.

JACAP is deeply concerned with the misinformation contained in attorney-at-law Chukwuemeka Cameron’s article and, for that reason, even though the matter is still before the court, JACAP decided to take this step to draw to the public’s attention certain indisputable facts.

In December 2017, JACAP obtained a default judgment against Horizon Entertainment for breach of copyright. This validated JACAP’s claim for unpaid licensing fees for the use by Horizon Entertainment of copyrighted musical works from JACAP’s repertoire without a licence from JACAP in breach of the Copyright Act.

The recent court judgment in September related to JACAP’s application for specific disclosure prior to an assessment of damages due to JACAP.

The judgment handed down by Justice Staple was a determination of JACAP’s application for Specific Disclosure, which was dismissed. The judgment read:

“The court finds that the disclosure order is unnecessary to resolve the claim. The claimant, by virtue of the definition of licence scheme under the Copyright Act, ought to have had all the terms of its scheme already settled and finalised. This includes the licence fees. Further, the claimant could have and should have established these fees independent of any company returns from any entity which would seek to use their works,” the release said.

However, Cameron claimed that the judge found that JACAP did not meet the statutory requirement of having a tribunal-approved licensing scheme and consequently lacked the legal authority to request financial disclosure or seek damages. This, regrettably, is not true.

In his article, Cameron erroneously claimed that Horizon successfully argued that without the involvement of the Copyright Tribunal to set an equitable rate for the use of musical works, JACAP could not enforce the collection of licensing fees or seek damages through the court.

Cameron claimed ‘victory’. However, the default judgment still stands against the defendant, Horizon, and in favour of the claimant JACAP.

In light of the statements made in Cameron’s article, we contacted IP Attorneys Foga Daley for their opinion, and they were of the view that there appears to be a misunderstanding of the functions of the Copyright Tribunal in the context of licensing carried out by Licensing Bodies such as JACAP.

As the judge correctly reasoned, the tribunal is empowered to either confirm or vary a licence scheme which has been referred to the tribunal by “any person that wishes to acquire a licence”.

Considering the express statutory provisions of the Copyright Act, there is clearly no statutory requirement for JACAP to have a tribunal-approved licensing scheme and the judgment does not actually state that this is required for JACAP to have legal standing to seek financial disclosure or to pursue damages.

JACAP considers it particularly concerning that the article concluded that “without the involvement of the Copyright Tribunal to set an equitable rate for the use of musical works, JACAP is not only prevented from collecting fees but also faces potential challenges to fees that have already been collected”. This statement is misleading and overly broad, potentially paving the way for unchecked copyright infringement to the detriment of Jamaican musicians.

JACAP is reviewing the judgement. Suffice it to say, our attorneys are reviewing the said judgment with a view to advising on how we proceed, and we will say that it is likely that this decision is one such which will require judicial consideration at a higher level. We would urge members of the public, especially those in professions of responsibility to act with the utmost caution and be careful not to mislead the public

Jamaica Association of Composers, Authors, and Publishers

21 Connolley Avenue

Kingston 4