Copyright (Amendment) Act, 2008 (Act No. 5 of 2008), Trinidad and Tobago

Act No. 5 of 2008

[L.S.]

AN ACT to amend the Copyright Act, 1997

[ Assented to 1st May, 2008]

WHEREAS it is enacted by section 13(1) of thePreamble Constitution that an Act of Parliament to which that section applies may expressly declare that it shall haveeffect even though inconsistent with sections 4 and 5 ofthe Constitution, and if any Act does so declare it shallhave effect accordingly:

Enactment

Short title

Act inconsistent with Constitution

Interpretation Act No. 8 of 1997

Section 3 amended

And whereas it is provided in subsection (2) of thesaid section 13, that an Act of Parliament to which thatsection applies is one the Bill for which has been passedby both Houses of Parliament and at the final votethereon in each House has been supported by the votesof not less than three-fifths of all the members of that House:

And whereas it is necessary and expedient that thisAct have effect even though inconsistent with sections 4and 5 of the Constitution:

ENACTED by the Parliament of Trinidad and Tobago asfollows:—

1. This Act may be cited as the Copyright(Amendment) Act, 2008.
2. 1A. This Act shall have effect even thoughinconsistent with sections 4 and 5 of the Constitution.
1. In this Act “the Act” means the Copyright Act,1997.

3. Section 3 of the Act is amended—

(a)

in the definition of “collective work”, by—

(i)

deleting the word “disclosed” andsubstituting the word “published”;and

(ii)

deleting the words “and that theidentity of the contributing naturalpersons will not be indicated” andsubstituting the words “subject tothe moral rights of the contributingnatural persons”;

(b)

by deleting the definition of “communication to the public” and substituting thefollowing definition:

“ “communication to the public”means the transmission to the public by wire or wireless means, including the making available tothe public of the images or soundor both, of a work, performance orsound recording, in such a waythat members of the public mayaccess it from a place and at a timeindividually chosen by them;”;

(c)

in the definition of “electronic retrieval system”, by inserting after the words“means,” the words “from a place and at atime individually chosen by him,”;

(d)

by inserting in the appropriate alphabetical

sequence the following definition: “ “infringing copies” means—

(i)

an article, the making of whichconstitutes an infringementof the copyright work,performance, sound recordingor broadcast;

(ii)

an article, which if it had beenimported or is proposed to beimported into Trinidad andTobago and its making inTrinidad and Tobago wouldhave constituted an infringement of the copyright in thework in question or infringement of neighbouring rights inthe performance, sound recording or broadcast or a breach ofa licence agreement relating tothat work, performance, soundrecording or broadcast; and

(iii) any other copy falling to betreated as an infringing copy,it not having been made inaccordance with the provisionsof sections 9, 10, 11, 12, 13, and 14;”;

(e)

in the definition of “public performance”, bydeleting the word “were” occurring after theword “places” and substituting the word“where”;

(f)

in the definition of “published”, by deletingthe comma after the word “public” in thesecond place where it occurs;

(g)

by inserting in the appropriate alphabeticalsequence the following definition:

“ “rights management information”means information or numbers or codes representing information,attached to a copy of a work, fixedperformance, sound recording orfixed broadcast or appearing inconnection with the broadcastingor communication to the public, ofa work, fixed performance, soundrecording or a broadcast—

(a)

identifying the author, work, performer, performance of a performer, producer of a sound recording, sound recording,broadcaster, broadcast or owner of any right protected under this Act; or

(b)

about the terms and conditions of use of the work, performance, soundrecording or broadcast;”and

(h) in the definition of “work of joint authorship”, by inserting after the word “the”, inthe second place where it occurs, the words“contribution of each author is not separatefrom that of the other author or authors and the”.

4. Section 18 of the Act is amended by inserting aftersubsection (3) the following subsections:

“(4) Independently of his copyright and evenwhere he is no longer the owner of copyright, theperformer shall, as regards his live auralperformances and performances fixed in soundrecordings, have the right—

(a)

to claim to be identified as the performer of his performances, exceptwhere omission is dictated by themanner of the use of the performance;and

(b)

to object to any distortion, mutilationor other modification of his performances that would be prejudicial tohis reputation.

(5)

Subsections (2) and (3) apply mutatis mutandis to the rights granted under subsection(4).

(6)

Nothing in this section shall be construedto deprive the performer of the right to agreeby contract, on terms and conditions morefavourable for him in respect of his performance.”.

1. Section 19 of the Act is amended in subsection (1),by inserting after the words “moral rights” the words “ofthe author”.
2. The Act is amended by inserting after section 19,the following section:

“Duration of 19A. The rights under section 18(4) shall

moral rights

of performers be protected until the end of the fiftiethcalendar year following the year in whichthe performance was fixed in a soundrecording or, in the absence of such afixation, from the end of the year in whichthe performance took place.”.

Section 18 amended

Section 19 amended

Section 19A inserted Section 21 amended

Section 22 amended

Section 23 amended

Section 26 amended

7. Section 21 of the Act is amended in subsection (1)—

(a)

in paragraph (a), by deleting the words“other than a communication through anelectronic retrieval system”;

(b)

in paragraph (c), by deleting the full stopand substituting a semicolon; and

(c)

by inserting after paragraph (c), thefollowing paragraphs:

“(d) the distribution to the public,by sale or other transfer ofownership, of a fixation of hisperformance or copies thereof,that have not already been subjectto a distribution authorized by theperformer;

(e)

the rental to the public of a fixation of his performance or copiesthereof, for the purposes of director indirect commercial advantage,irrespective of the ownership ofthe original or copy rented; and

(f)

the making available to the publicof his fixed performance throughan electronic retrieval system.”.

1. Section 22 of the Act is amended in subsection (1)(e), by inserting after the word “rental”,the words “to the public”.
2. Section 23 of the Act is amended in subsection (1),by inserting after the word “directly” in the third line,the words “or indirectly”.
3. Section 26 of the Act is amended in subsection (1A), by deleting paragraphs (a) and (b), andsubstituting the following paragraphs:

“(a) a performance, is the performer in the performance;

(b)

a sound recording, is the producer of the sound recording; and

(c)

a broadcast, is the broadcasting organization.”.

1. The Act is amended by deleting the subheadingHeading amended “INFRINGEMENT” occurring after Part VII and substituting the subheading “CIVIL REMEDIES”.
2. The Act is amended by inserting after section 32, Section 32A inserted the following section:

“Certain 32A. (1) A non-exclusive licensee may

infringement

bring an action for infringement of

actionable by non-exclusive

copyright or neighbouring rights where—

licensee

(a)

the infringement was directly connected to a prior licensed act of the licensee; and

(b)

the licence—

(i)

is in writing and is signed by or on behalf of the owner of the copyright or neighbouring rights; and

(ii)

expressly grants the non-exclusive licensee a right of action under this section.

(2)

In an action brought under thissection, the non-exclusive licensee shall have the same rights and remediesavailable to him as the owner of the copyright or neighbouring rights wouldhave had, had he brought the action.

(3)

The rights granted under thissection are concurrent with those of the owner of the copyright.

Section 34 amended

(4)

In an action brought by a non-exclusive licensee by virtue of this section the defendant may avail himself of thedefence which would have been available to him had the action been brought by the owner of the copyright or neighbouring rights.

(5)

Section 33 shall apply to a non-exclusive licensee who has a right ofaction by virtue of this section as it applies to an exclusive licensee.

(6)

In this section a “non-exclusive licensee” means the holder of a licence authorizing the licensee to exercise a rightwhich remains exercisable by the owner of the copyright or neighbouring rights.”.

13. Section 34 of the Act is amended—

(a) in subsection (1)—

(i)

in paragraph (c), by deleting the word “or” in the second place where it occurs;

(ii)

by inserting after paragraph (c), the following paragraph:

“(d) imports into Trinidad and Tobago; or”;

(iii) by re-lettering paragraph (d) as paragraph (e); and

(iv) by deleting the words “the making of which he knows or has reason to believe constituted an infringementof copyright.” and substituting the words “which is, and which he knows or has reason to believe, is an infringing copy of a work.”; and

(b) in subsection (2), by deleting the words “the making of those copies would constitute an infringement of copyright.” and substituting the words “it is to be used to make infringing copies.”.

14. The Act is amended by inserting after section 34, Sections 34A and 34B

inserted

the following sections: “Measures, 34A. (1) The following acts shall

remedies and

sanctions constitute infringements of copyright and

against acts

neighbouring rights:

constituting infringe

ments of (a) the manufacture or importation for

copyright and

neighbouring sale or rental of any device or

rights

means, specifically designed or adapted to circumvent any device or means intended to prevent or restrict reproduction of a work or to impair the quality of copies made (the latter device or means hereinafter referred to as “copyprotection or copy-management device or means”); and

(b) the manufacture or importation for sale or rental of any device or means that is susceptible to enable or assist the reception of an encrypted programme, which is broadcast or otherwise communicated to the public, including by satellite, by those who are not entitled to receive the programme.

(2) Section 38 shall apply to an illicit device or means mentioned in subsection (1) as it applies to infringing

copies.

Abuses in respect of rights management information

(3) The owner of copyright in awork shall also be entitled to damages forinfringement provided for by sections 31(1)and 38(1)(d), where—

(a)

authorized copies of the work havebeen made and offered for sale or rental in an electronic form combined with a copy-protectionor copy-management device ormeans, and a device or means specifically designed or adapted tocircumvent the said device or means is made or imported for saleor rental; or

(b)

the work is authorized for inclusion in an encrypted programme, broadcast or otherwise communicated to the public, including by satellite,and a device or means enablingor assisting the reception of theprogramme by those who are notentitled to receive the programmeis made or imported for sale orrental.

34B. (1) The following acts are infringements of copyright and neighbouringrights:

(a)

the alteration or removal of anyelectronic rights managementinformation without authority, fromany work, performance, soundrecording, or broadcast or any copyof such work, performance, soundrecording or broadcast; and

(b)

the distribution, importation fordistribution, broadcasting or othercommunication to the public,

without authority, of any work,performance, sound recording orbroadcast, or any copy of such work, performance, soundrecording or broadcast by anyperson who knows or has reason tobelieve that electronic rights management information has been removed from or altered in such work, performance, soundrecording or broadcast, withoutauthority.

(2) For the purposes of this Part,any copy of a work, performance, soundrecording or broadcast referred to insubsection (1), constitutes an infringingcopy of such work, performance, soundrecording or broadcast.”.

15. The Act is amended by deleting the heading—

“PART VIII CIVIL REMEDIES AND CRIMINAL LIABILITY”

16. The Act is amended by inserting after section 40,the following heading:

“PART VIII OFFENCES”

17. The Act is amended by deleting section 41 and

substituting the following sections: “Penalties in 41. (1) A person commits an offence

respect of

who, without the licence of the copyright

infringing copies of a

owner—

work, performance,

(a) makes for sale or hire;

sound recording or

(b) imports into Trinidad and Tobago

broadcast

otherwise than for his private anddomestic use;

Heading

Heading inserted

Section 41 deleted and substituted

(c)

possesses in the course of a business with the intention of infringing the copyright in thework or neighbouring rights in theperformance, sound recording orbroadcast;

(d)

in the course of a business—

(i)

sells or lets for hire;

(ii)

offers or exposes for sale orhire;

(iii) exhibits in public; (iv) distributes; or

(e)

distributes otherwise than in the course of a business in excess of three copies of,

an article which is, and which he knows orhas reason to believe is, an infringing copyof a copyright work, performance, soundrecording or broadcast.

(2) A person commits an offencewho—

(a)

makes an article specificallydesigned or adapted for makingcopies of a particular copyrightwork, performance, sound recording or broadcast; or

(b)

has such an article in his possession,

knowing or having reason to believe that itis to be used to make infringing copies forsale or hire or for use in the course of a business.

(3) A person guilty of an offenceunder subsections (1) and (2) is liable onsummary conviction to a fine of twohundred and fifty thousand dollars andimprisonment for ten years.

Penalities in respect of unauthorized public performance

(4) The Magistrate before whomproceedings are brought against a personfor an offence under this section may, ifsatisfied that at the time of his arrest or charge the person had in his possession,custody or control—

(a)

an infringing copy of a copyrightwork, performance, sound recording or broadcast in the case of abusiness;

(b)

an article specifically designedor adapted for making copies ofa particular copyright work,performance, sound recording orbroadcast, knowing or havingreason to believe that it had been or was to be used to make infringing copies; or

(c)

any apparatus, implements ordevices that may be used to commitor continue to commit an offence under this Act,

order that the infringing copy, article,apparatus, implements or devices bedestroyed or delivered up to the copyrightowner or to such other person as theMagistrate may direct.

41A. (1) Where copyright or neighbouringrights are infringed (otherwise than by reception of a broadcast or cableprogramme)—

(a)

by the public performance of acopyright work or sound recording; or

(b)

by the playing or showing in publicof a sound recording or film,

any person who caused the work to be soperformed, played or shown is guilty of anoffence if he knew or had reason to believe that copyright would be infringed.

Section 42 amended

Section 44 deleted and substituted

(2) A person guilty of an offence under subsection (1), is liable on summary conviction to a fine of two hundred and fifty thousand dollars and to imprisonment for ten years.”.

18. Section 42 of the Act is amended by deleting all the words after the words “as well as the body corporate” and substituting the words “commits an offence and in the case of an officer of such body corporate, is liable, upon conviction, to a fine of two hundred and fifty thousand dollars and to imprisonment for ten years and in the case of the body corporate, is liable upon conviction, to a fine of two hundred and fifty thousand dollars.”.

19. The Act is amended by deleting section 44 and

substituting the following section: “Powers of 44. (1) For the purposes of any offence

the

Magistrate under this Part, where copies suspected of being infringing copies of a work, performance, sound recording or broadcast have been seized, it shall be sufficient to examine one per centum or any five copies, whichever is the lesser and where such examination establishes that such copies are all infringing copies, it shall be presumed, until the contrary is proven, that the remaining copies are infringing copies.

(2) Where a person is convicted of an offence under this Part the Magistrate shall in imposing a sentence be entitled to take into consideration the entire number of infringing copies of a work, performance, sound recording or broadcast seized at the time of arrest or charge.”.

20. Section 45 of the Act is amended— Section 45 amended

(a)

in subsection (1), by inserting after the word “broadcasts” occurring in the last line, the words “and apparatus, implements and devices used for transporting or marketing such copies”;

(b)

in subsection (2)—

(i)

in paragraph (a), by deleting the words “; and” and substituting the word “;”;

(ii)

by inserting the following paragraph:

“(b) any apparatus, implements and devices used for transporting or marketing an article which appears to him to be an infringing copy of a work, performance, sound recording or broadcast; and”;

(iii) by re-lettering paragraph (b) as paragraph (c);

(c)

in subsection (4), by deleting all the words beginning with the word “enter” in the penultimate line to the word “be” in the last line and substituting the words “execute any of the powers vested in him under subsections (1), (2) and (3)”; and

(d)

by inserting the following subsection:

“(6) A police officer who has reasonable cause to suspect that—

(i) copies of a work, performance, sound recording, or broadcast found in any premises or place, vessel, aircraft or vehicle are infringing copies; and

(ii) any apparatus, implements or devices found in any premises or place, vessel, aircraft or vehicle are being used for the purpose of transporting or marketing infringing copies,

and that such copies, apparatus, implements or devices appear, having regard to all the circumstances, to have been abandoned, may bring such copies, apparatus, implements or devices before a Magistrate and upon proof that the copies, apparatus, implements or devices are infringing copies, apparatus, implements or devices apply for an Order for the destruction of such copies, apparatus, implements or devices or that such copies be dealt with as the Magistrate may think fit.”.

Section 59 inserted 21. The Act is amended by inserting after section 58, the following section: “Limitation of 59. Section 3 of the Limitation of

certain

actions Certain Actions Act, 1997 applies to an

Act No. 36 of

₁₉₉₇ action to recover any sum recoverable under this Act.”.

Passed in the Senate this 12th day of February, 2008.

Clerk of the Senate

ITIS HEREBY CERTIFIED that this Act is one the Bill for which has been passed by the Senate and at the final vote thereon in the Senate has been supported by the votes of not less that three-fifths of all the members of the Senate, that is to say, by the votes of 28 Senators.

Clerk of the Senate

Passed in the House of Representatives this 18th dayof April, 2008.

Acting Clerk of the House

ITIS HEREBY CERTIFIED that this Act is one the Bill for which has been passed by the House of Representatives and at the final vote thereon in the House has been supported by the votes of not less that three-fifths of all the members of the House, that is to say, by the votes of 26 members of the House.

Acting Clerk of the House