Intellectual Property Rights

NATIONAL LEGISLATION - TRINIDAD AND TOBAGO

The Copyright Act, 1997
Copyright and Neighboring Rights
(N^o 8 of 1997)

PART VI
OWNERSHIP AND ASSIGNMENT

(Original ownership of copyright and neighbouring rights)

26.

(1) Subject to the provisions of subsections (2) to (5), the original owner of copyright is the author who has created the work.

(1A) Subject to the provisions of section 25 and subsections (7) to (9), the original owners of neighbouring rights in—

(a) a performance or sound recording are the producer of, and the performer or performers in, the performance or sound recording, as the case may be; and

(b) a broadcast is the broadcasting organization.

(2) In respect of a work of joint authorship, the co-authors shall be the original owners of copyright, but if a work of joint authorship consists of parts that can be used separately and the author of each part can be identified, the author of each part shall be the original owner of copyright in the part that he has created.

(3) In respect of a collective work, the natural person or legal entity at the initiative and under the direction of whom or which the work has been created shall be the original owner of copyright.

(4) In respect of a work created by an author employed by a natural person or legal entity in the course of his employment, the original owner of copyright shall be, unless provided otherwise by agreement, the employer.

(5) In respect of an audiovisual work or a work of mas, the original owner of copyright shall be the producer, unless provided otherwise by agreement.

(6) The authors of the pre-existing works included in or adapted for the making of an audiovisual work or work of mas shall maintain their copyright in their contributions or pre-existing works, respectively, to the extent that those contributions or pre-existing works can be the subject of acts covered by their copyright separately from the audiovisual work or work of mas.

(7) Where a work or a sound recording has been made by or under the direction or control of the Government and, apart from this subsection no copyright or neighbouring rights would subsist in the work or sound recording, then copyright or neighbouring rights shall subsist therein by virtue of this subsection and shall belong to the State.

(8) Copyright or neighbouring rights subsisting in a work or a sound recording which has, with the written consent of the owner of copyright or neighbouring rights, been first published in Trinidad and Tobago by or under the direction or control of the Government shall belong to the State.

(9) Subsections (7) and (8) shall have effect subject to any agreement whereby it is agreed that copyright or neighbouring rights in the work or sound recording shall vest in the owner of copyright or neighbouring rights or some other person designated in the agreement.

(10) For the purposes of this section the term “agreement” includes any conditions regulating or applying to the employment of a person in the service of the State.

(Original ownership of copyright and neighbouring rights by international organizations)

27.

(1) Where it appears to the President that it is desirable that this Act should apply in relation to an organization—

(a) of which two or more countries, or the governments of two or more countries, are members; or

(b) that is constituted by persons representing two or more countries, or representing the Governments of two or more countries, he may by Order declare that organization to be an international organization to which this Act applies.

(2) An international organization to which this Act applies which otherwise does not have, or at some material time otherwise did not have, the legal capacities of an entity has, and shall be deemed at all material times to have had, the legal capacities of an entity for the purpose of holding, dealing with and enforcing copyright or neighbouring rights and for the purposes of all legal proceedings relating to such copyright or neighbouring rights.

(3) Where an original literary work, an artistic work, a sound recording or a broadcast made by, or under the direction or control of, an international organization to which this Act applies in such circumstances that copyright or neighbouring rights would not, apart from this subsection, subsist in the work, sound recording or broadcast, then—

(a) copyright shall subsist in the work, and section 19(3), (5) and (6) shall apply;

(b) neighbouring rights shall subsist in the sound recording or broadcast and sections 22(2) and 24(2) shall apply; and

(c) the organization shall be, subject to this Part, the owner of copyright or neighbouring rights.

(4) Save in so far as other provision is made by this section, Parts II and V shall apply in relation to copyright or neighbouring rights respectively which subsist by virtue of this section in like manner as it applies in relation to copyright or neighbouring rights subsisting by virtue of those Parts.

(Assignments and licences)

28.

(1) Copyright and neighbouring rights shall be transmissible in whole or in part by assignment, by disposition or by operation of law, as personal or moveable property.

(2) An assignment of copyright or neighbouring rights is not effective unless it is in writing and signed by or on behalf of the assignor.

(3) A licence granted by the owner of copyright or neighbouring rights is binding on every successor in title to his interest in the copyright or neighbouring rights, except—

(a) a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence; or

(b) a person deriving title from such a purchaser, and references in this Act, in relation to any copyright or neighbouring rights, to doing anything with or without the licence of the owner of copyright or neighbouring rights, shall be construed accordingly.

(4) An assignment in whole or in part of any copyright or neighbouring rights, or a licence to do an act subject to authorization by the owner of copyright or neighbouring rights, shall not include or be deemed to include the assignment or licence of any other rights not explicitly referred to therein.

(5) An exclusive licensee has the same rights against a successor in title who is bound by the licence as he has against the person granting the licence.

(Prospective ownership of author’s rights)

29.

(1) Where, by an agreement made in relation to future copyright or neighbouring rights, and signed by or on behalf of the prospective owner of copyright or neighbouring rights, the prospective owner purports to assign the future copyright or neighbouring rights (wholly or partly) to another person, then if, on the coming into existence of the copyright or neighbouring rights, the assignee or another person claiming under him would be entitled as against all other persons to require the copyright or neighbouring rights to be vested in him, the copyright or neighbouring rights shall vest in the assignee or his successor in title by virtue of this subsection.

(2) In this section, “future copyright or neighbouring rights” means copyright or neighbouring rights which will or may come into existence in respect of any future work, performance, sound recording or broadcast, or on the coming into operation of this Act, or in any future event, and “prospective owner” shall be construed accordingly, and includes a person who is prospectively entitled to copyright or neighbouring rights by virtue of such an agreement as is mentioned in subsection (1).

(3) A licence granted by a prospective owner of copyright or neighbouring rights is binding on every successor in title to his interest (or prospective interest) in the right, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Act to doing anything with or without, the licence of the owner of copyright or neighbouring rights shall be construed accordingly.

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PART VII

INFRINGEMENT

(Action—definition of)

30. For the purposes of this Part, the expression “action” includes a counterclaim, and reference to the plaintiff and to the defendant in an action shall be construed accordingly.

(Action by owner of rights for infringement)

31.

(1) Subject to this Act, infringements of rights of the owner of copyright or neighbouring rights shall be actionable in the Court as the suit of the owner of copyright or neighbouring rights; and in any action for such an infringement all such relief by way of damages, injunction, accounts or otherwise shall be available to the plaintiff as is available in any corresponding proceedings in respect of infringements of other proprietary rights.

(2) In an action for infringement of rights in respect of the construction of a building, no injunction or other order shall be made—

(a) after the construction of the building has begun, so as to prevent it from being completed; or

(b) so as to require the building, in so far as it has been constructed, to be demolished.

(Action by exclusive licensee for infringement)

32.

(1) An exclusive licensee has, except against the owner of copyright or neighbouring rights, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.

(2) His rights and remedies are concurrent with those of the owner of copyright or neighbouring rights; and references in the relevant provisions of this Part to the owner of copyright or neighbouring rights shall be construed accordingly.

(3) In an action brought by an exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the owner of copyright or neighbouring rights.

(Exercise of concurrent rights)

33.

(1) Where an action for infringement of copyright or neighbouring rights brought by the owner of copyright or neighbouring rights or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the owner of copyright or neighbouring rights or, as the case may be, the exclusive licensee may not, without the leave of the Court, proceed with the action unless the other is either joined as a plaintiff or added as a defendant.

(2) An owner of copyright or neighbouring rights or exclusive licensee who is added as a defendant in pursuance of subsection (1) is not liable for any costs in the action unless he takes part in the proceedings.

(3) Subsections (1) and (2) do not affect the granting of interlocutory relief on an application by an owner of copyright or neighbouring rights or exclusive licensee alone.

(4) Where an action for infringement of copyright or neighbouring rights is brought which relates (wholly or partly) to an infringement in respect of which the owner of copyright or neighbouring rights and an exclusive licensee have or had concurrent rights of action—

(a) the Court may in assessing damages take into account—

i(i) the terms of the licence; and

(ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement;

(b) no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and

(c) the Court may, if an account of profits is directed, apportion the profits between them as the Court considers just, subject to any agreement between them,
and these provisions apply whether or not the owner of copyright or neighbouring rights and the exclusive licensee are both parties to the action.

(Secondary infringements)

34.

(1) Copyright in a work is infringed by a person who, without the authorization of the owner of copyright—

(a) possesses in the course of a business;

(b) sells or lets for hire, or offers or exposes for sale or hire;

(c) in the course of a business exhibits in public or distributes; or

(d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of copyright, an article, the making of which he knows or has reason to believe, constituted an infringement of copyright.

(2) Copyright in a work is infringed by a person who, without the authorization of the owner of copyright—

(a) makes;

(b) imports into Trinidad and Tobago;

(c) possesses in the course of a business; or

(d) sells or lets for hire, or offers or exposes for sale or hire,
an article specifically designed or adapted for making copies of that work, knowing or having reason to believe that the making of those copies would constitute an infringement of copyright.

(3) Where copyright in a work is infringed by a performance at a place of public entertainment, any person who gave permission for that place to be used for the performance is also liable for the infringement unless when he gave permission he believed on reasonable grounds that the performance would not infringe copyright.

(4) In subsection (3), “place of public entertainment” includes premises which are occupied mainly for other purposes but are from time to time made available for hire for the purposes of public entertainment.

(5) Where copyright in a work is infringed by a public performance of the work, or by the playing or showing of the work in public, by means of apparatus for showing audiovisual works or receiving visual images or sounds conveyed by electronic means, the following persons are also liable for the infringement:

(a) a person who supplied the apparatus, or any substantial part of it, if when he supplied the apparatus or part—

i(i) he knew or had reason to believe that the apparatus was likely to be used so as to infringe copyright; or

(ii) in the case of apparatus whose normal use involves a public performance or showing, he did not believe on reasonable grounds that it would not be so used as to infringe copyright;

(b) an occupier of premises who gave permission for the apparatus to be brought onto the premises, if when he gave permission he knew or had reason to believe that the apparatus was likely to be so used as to infringe copyright;

(c) a person who supplied a copy of an audiovisual work used to infringe copyright, if when he supplied it he knew or had a reason to believe that what he supplied, or a copy made directly or indirectly from it, was likely to be so used as to infringe copyright.

(6) Subsections (1) to (5) shall apply to neighbouring rights in performances, sound recordings and broadcasts as they apply to copyright in works.

(Presumption of authorship and of representation of the author)

35.

(1) The natural person or legal entity whose name is indicated as the author in the original or copies of a work shall, in the absence of proof to the contrary, be presumed to be the owner of copyright in the work, and this provision shall be applicable even if the name is a pseudonym, where the pseudonym leaves no doubt as to the identity of the author.

(2) Where no name purporting to be that of the author appears on the original or copies of a work but a name purporting to be that of a publisher appears on copies of the work as first published, the person whose name so appears shall be presumed, until the contrary is proved, to be the owner of copyright in the work as first published.

(3) If the author of the work is dead or the identity of the author cannot be ascertained by reasonable inquiry, it shall be presumed, in the absence of evidence to the contrary that—

(a) the work is an original work; and

(b) the plaintiff’s allegation as to what was the first publication of the work is correct.

(Presumptions relevant to sound recordings, audiovisual works and computer programs)

36.

(1) In proceedings brought by virtue of this Act with respect to a sound recording, where copies of the recording as issued to the public bear a label or other mark stating—

(a) that a named person was the producer of the recording at the date of issue of the copies;

(b) that a named person was a performer in the recording at the date of issue of the copies; or

(c) that the recording was first published in a specific year or in a specified country,
the label or mark shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(2) In proceedings brought by virtue of this Act with respect to an audiovisual work, where copies of the audiovisual work as issued to the public bear a statement—

(a) that a named person was the author or director of the audiovisual work;

(b) that a named person was the owner of copyright in the audiovisual work at the date of issue of the copies; or

(c) that the audiovisual work was first published in a specified year or in a specified country,
the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(3) In proceedings brought by virtue of this Act with respect to a computer program, where copies of the program are issued to the public in electronic form bearing a statement—

(a) that a named person was the owner of copyright in the program at the date of issue of the copies; or

(b) that the program was first published in a specified country or that copies of it were first issued to the public in electronic form in a specified year; the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(4) Subsections (1) to (3) apply equally in proceedings relating to an infringement alleged to have occurred before the date on which the copies were issued to the public.

(5) In proceedings brought by virtue of this Act with respect to an audiovisual work, where the audiovisual work as shown in a communication to the public bears a statement—

(a) that a named person was the author or director of the audiovisual work; or

(b) that a named person was the owner of copyright in the audiovisual work immediately after it was made, the statement shall be admissible as evidence of the facts and shall be presumed to be correct until the contrary is proved and this presumption applies equally in proceedings relating to an infringement alleged to have occurred before the date on which the audiovisual work was communicated to the public.

(Presumptions relevant to works of the State)

37. In proceedings brought by virtue of this Act with respect to a work, copyright in which belongs to the State, where there appears on printed copies of the work a statement of the year in which the work was first published commercially, that statement shall be admissible as evidence of the fact stated and shall be presumed to be correct in the absence of evidence to the contrary.