Intellectual Property Rights

NATIONAL LEGISLATION - TRINIDAD AND TOBAGO

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

PART VIII
CIVIL REMEDIES AND CRIMINAL LIABILITY

(Civil remedies for infringement)

38.

(1) The Court shall have the authority—

(a) to grant injunctions to prohibit the committing, or continuation of committing, of an infringement of any right protected under this Act;

(b) to order the impounding of copies of works or sound recordings suspected of being made or imported without the authorization of the owner of any right protected under this Act where the making or importation of copies is subject to such authorization, as well as the impounding of the packaging of, the implements that could be used for the making of, and the documents, accounts or business papers referring to, such copies;

(c) to order the forfeiture and seizure of all copies of works or sound recordings manufactured, reproduced, distributed, sold or otherwise used, intended for use or possessed with intent to use in contravention of section 8 or 22 and all plates, moulds, matrices, masters, tapes, film negatives, or other articles by means of which such copies of works or sound recordings may be reproduced and all electronic, mechanical or other devices for manufacturing, reproducing, or assembling such copies of works or sound recordings;

(d) to order that the owner of any right protected under this Act whose right has been infringed, be paid by the infringer, damages adequate to compensate for the injury suffered as a consequence of the act of infringement, as well as the payment of expenses caused by the infringement, including legal costs;

(e) to fix the amount of damages taking into account the pecuniary and non-pecuniary loss suffered by the owner of the right;

(f) to order an account of the infringer’s profits attributable to the infringement;

(g) where infringing copies exist, to order the destruction or other reasonable disposition of those copies and their packaging outside the channels of commerce in such a manner as to avoid harm to the right holder, unless the owner of the right requests otherwise.

(2) Where the infringer did not know or had no reasonable reason to know that he was engaged in infringing activity, the Court may limit damages to the profits of the infringer attributable to the infringement.

(3) Where there is a danger that implements may be used to commit or continue to commit acts of infringement, the Court shall have the authority, whenever and to the extent that it is reasonable, to order their destruction or other reasonable disposition outside the channels of commerce in such a manner as to minimize the risks of further infringements, including surrender to the owner of the right.

(4) The Court shall not, in respect of the same infringement, both award the owner of rights damages and order that he shall be given an account of profits.

(5) The provisions of subsection (1)(g) shall not be applicable to copies and their packaging which were acquired by a third party in good faith.

(6) Where there is a danger that acts of infringement may be continued, the Court shall have the authority to order that such acts not be committed and the Court shall fix a fine of five thousand dollars for each day on which the infringement is continued, which fine shall be paid if the order is not respected.

(Wide injunction available to licensing bodies)

39. Where, in an action under this Part—

(a) the infringement of copyright or neighbouring rights is proved or admitted;

(b) the plaintiff is a licensing body; and

(c) the Court, having regard to all material circumstances, is satisfied that effective relief would not otherwise be available to the plaintiff, the Court may grant an injunction extending to all the protected works, sound recordings, broadcasts or performances, as the case may be, of which the plaintiff is the owner of copyright or neighbouring rights, notwithstanding that the infringement related to only one or some of the said works, sound recordings, broadcasts or performances.

(Withdrawal of privilege against incrimination of self or spouse in infringement and related proceedings)

40.

(1) In this section—

“related offence”, in relation to any proceedings to which subsection (2) applies, means—

(a) in the case of proceedings within subsection (3)(a) or (b)—

i(i) any offence committed by or in the course of the infringement to which those proceedings relate; or

(ii) any offence not within subparagraph (i) committed in connection with that infringement, being an offence involving fraud or dishonesty;

(b) in the case of proceedings within subsection (3)(c), any offence revealed by the facts on which the plaintiff relies in those proceedings;

“related penalty” in relation to any proceedings to which subsection (2) applies, means—

(a) in the case of proceedings within subsection (3)(a) or (b), any penalty incurred in respect of anything done or omitted in connection with the infringement to which those proceedings relate;

(b) in the case of proceedings within subsection (3)(c), any penalty incurred in respect of any act or omission revealed by the facts on which the plaintiff relies in those proceedings.

(2) In any proceedings to which this subsection applies a person shall not be excused, by reason that to do so should tend to expose that person, or his spouse, to proceedings for a related offence or for the recovery of a related penalty—

(a) from answering any question put to that person in the first-mentioned proceedings; or

(b) from complying with any order made in those proceedings.

(3) Subsection (2) applies to the following civil proceedings in the Court, namely:

(a) proceedings for infringement of copyright or neighbouring rights;

(b) proceedings brought to obtain disclosure of information relating to any infringement of such rights; and

(c) proceedings brought to prevent any apprehended infringement of such rights.

(4) Subject to subsection (5), no statement or admission made by a person—

(a) in answering a question put to him in any proceedings to which subsection (2) applies; or

(b) in complying with an order made in any such proceedings,
shall, in proceedings for any related offence or for the recovery of any related penalty, be admissible in evidence against that person or (unless they married after the making of the statement or admission) against the spouse of that person.

(5) Nothing in subsection (4) shall render any statement or admission made by a person as therein mentioned inadmissible in evidence against that person in proceedings for perjury or contempt of court.

(6) Any reference in this section to civil proceedings in the Court includes a reference to proceedings on appeal arising out of those civil proceedings.

(Criminal liability for infringement)

41.

(1) A person who commits an infringement of a right protected under this Act for profit-making purposes, knowing or having reason to believe that he is committing an infringement, commits an offence and is liable on summary conviction to a fine of one hundred thousand dollars and to imprisonment for ten years.

(2) The amount of the fine shall be fixed by the Magistrate, taking into particular account the defendant’s profits attributable to the infringement.

(3) The Magistrate shall have the authority to increase up to double the penalty specified in subsection (1), where the defendant has been convicted for a new act of infringement within five years of a previous conviction for an infringement.

(4) The provisions of section 38(1)(b), (c) and (g), (3) and (5) shall apply, mutatis mutandis, in criminal proceedings, provided that no decision has yet been taken on such remedies in a civil proceeding.

(Offences by bodies corporate)

42. Where an offence under this Part committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, is guilty of that offence and is liable to be proceeded against and punished accordingly.

(Time limited for prosecution)

43. No prosecution for an offence under this Act shall be commenced after the expiration of five years after the commission of the offence or one year after the discovery thereof, whatever date last occurs.

(Measures, remedies and sanctions against abuses in respect of technical means)

44.

(1) The following acts shall constitute infringements of copyright and neighbouring rights:

(a) the manufacture or importation for sale or rental of any device or 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 “copy-protection or copy-management device or means”);

(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 program, which is broadcast or otherwise communicated to the public, including by satellite, by those who are not entitled to receive the program.

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

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

(a) authorized copies of the work have been made and offered for sale or rental in an electronic form combined with a copy-protection or copy-management device or means, and a device or means specifically designed or adapted to circumvent the said device or means is made or imported for sale or rental;

(b) the work is authorized for inclusion in an encrypted program broadcast or otherwise communicated to the public, including by satellite, and a device or means enabling or assisting the reception of the program by those who are not entitled to receive the program is made or imported for sale or rental.

(Powers of Police Officers)

45.

(1) A police officer not below the rank of Inspector, or a police officer below the rank of Inspector acting on the authority of a warrant issued under subsection (4), may—

(a) enter and search any premises or place;

(b) stop, board and search any vessel (other than a ship of war) or any aircraft (other than a military aircraft);

(c) stop and search any vehicle, in which he reasonably suspects that there are infringing copies of works, performances, sound recordings or broadcasts in which copyright or neighbouring rights subsist or any plates, moulds, matrices, masters, tapes, film negatives, or other articles by means of which such copies of works, performances, sound recordings or broadcasts may be reproduced, and all electronic, mechanical or other devices for manufacturing, reproducing, or assembling such copies of works, performances, sound recordings or broadcasts.

(2) A police officer not below the rank of Inspector, or a police officer below the rank of Inspector acting on the authority of a warrant issued under subsection (4), may seize, remove or detain—

(a) any article which appears to him to be an infringing copy of a work, performance, sound recording or broadcast in which copyright or neighbouring rights subsist or any plate, mould, matrix, master, tape or film negative, or other article by means of which such copy of a work, performance, sound recording or broadcast may be reproduced, and any electronic, mechanical or other device for manufacturing, reproducing, or assembling such copy of a work, performance, sound recording or broadcast; and

(b) anything which appears to him to be or to contain evidence of an offence under this Act.

(3) A police officer not below the rank of Inspector, or a police officer below the rank of Inspector acting on the authority of a warrant issued under subsection (4), may—

(a) break open any outer or inner door of any place which he is empowered or authorized by this Act to enter and search;

(b) forcibly board any vessel, aircraft or vehicle which he is empowered by this Act to stop, board and search;

(c) remove by force any person or thing obstructing him in the exercise of any power conferred on him by this Act;

(d) detain any person found in any place which he is empowered or authorized by this Act to search until such place has been searched;

(e) detain any vessel or aircraft which he is empowered by this Act to stop, board and search, and prevent any person from approaching or boarding such vessel or aircraft until it has been searched;

(f) detain any vehicle which he is empowered by this Act to stop and search until it has been searched.

(4) A Magistrate may, if he is satisfied by information on oath that there is reasonable ground for suspecting that there is in any premises, place, vessel (other than a ship of war), aircraft (other than a military aircraft) or vehicle, any article which may be seized, removed or detained under subsection (2), issue a warrant authorizing a police officer below the rank of Inspector to enter and search the premises, vessel, aircraft or vehicle, as the case may be.

(5) A warrant issued under subsection (4) may authorize any person to accompany the police officer executing the warrant.

(Obstruction of Police Officers)

46.

(1) Without prejudice to any other written law, any person who—

(a) wilfully obstructs a police officer in the exercise of his powers or the performance of his duties under this Act;

(b) wilfully fails to comply with any requirement properly made to him by any such police officer; or

(c) without reasonable excuse, fails to give such police officer any other assistance which he may reasonably require to be given for the purpose of exercising his powers or performing his duties under this Act, is liable on summary conviction to a fine of ten thousand dollars and to imprisonment for twelve months.

(2) A person who, when required to give information to a police officer in the exercise of his powers or the performance of his duties under this Act, knowingly gives false or misleading information to any such police officer is liable on summary conviction to a fine of ten thousand dollars and to imprisonment for twelve months.

(3) Nothing in this section shall be construed as requiring any person to give any information which may incriminate him.

(Power to arrest without warrant)

47. A police officer may arrest without a warrant any person who—

(a) has committed or attempted to commit; or

(b) is reasonably suspected of having committed or having attempted to commit an offence under this Act if—

ii(i) he has reasonable grounds for believing that the person will abscond unless arrested;

i(ii) the name and address of the person are unknown to him and cannot be ascertained by him; or

(iii) he has reason to believe and believes that the name and address given by the person are false.

(Provision for restricting importation of infringing copies)

48.

(1) The owner of copyright or neighbouring rights in any published work or in any published sound recording may give notice in writing to the Comptroller of Customs and Excise—

(a) that he is the owner of copyright or neighbouring rights in the work or sound recording;

(b) that he requests the Comptroller during the period specified in the notice to treat as prohibited goods copies of the work or sound recording to which this section applies,
but the period specified in a notice under this subsection shall not exceed five years and shall not extend beyond the end of the period for which the copyright or neighbouring rights may subsist.

(2) This section applies, in the case of a work or sound recording, to any copy made outside Trinidad and Tobago which, if it had been made in Trinidad and Tobago by the importer, would be an infringing copy of the work or sound recording.

(3) Where a notice has been given under this section in respect of a work or sound recording, and has not been withdrawn, the importation into Trinidad and Tobago, at a time before the end of the period specified in the notice, of any copy of the work or sound recording to which this section applies shall, subject to the following provisions of this section, be prohibited, but this subsection shall not apply to the importation of any article by a person for his private and domestic use.

(4) The owner of copyright or neighbouring rights in a work who gives notice to the Comptroller under this section shall comply with such conditions with respect to—

(a) the form of the notice;

(b) the furnishing of evidence;

(c) the payment of fees;

(d) the giving of security; and

(e) any other incidental or supplementary matters, as may be prescribed.

(5) Notwithstanding anything in the Customs Act, a person shall not be liable to any penalty under that Act (other than forfeiture of the goods) by reason that any goods are treated as prohibited goods by virtue of this section.

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PART IX
SPECIAL JURISDICTION OF THE COURT

(Definitions)

49. For the purposes of this Part, the expression “general licence” means a licence extending to—

(a) the works of several authors;
(b) the sound recordings or audiovisual works of several producers; or
(c) the performances of several performers,
and which does not apply different terms and conditions as between the several authors, producers or performers, as the case may be;

“licensing body” means any society or organization which has as its main object, or one of its main objects, the negotiation or granting of general licences in respect of protected works, sound recordings or performances either as the owner or prospective owner of copyright or neighbouring rights therein, or as agent for the owners or prospective owners thereof.

(Jurisdiction of Court)

50. Subject to this Act, the Court shall have jurisdiction—

(a) to determine any dispute which may be referred to it pursuant to section 52;

(b) to fix the amount of equitable remuneration or compensation which by any provision of this Act is required to be fixed by the Court in any case where there has been no agreement between a person and the owner of copyright or neighbouring rights as to the amount of remuneration or compensation payable in respect of the use of the work, sound recording, broadcast or performance.

(Procedure in proceedings before the Court)

51.

(1) The procedure regulating the making of references and applications to the Court, and proceedings before the Court arising out of the jurisdiction conferred on the Court by this Part, and as to the fees chargeable in respect of those proceedings shall be prescribed by Rules of Court.

(2) The Court may order that the costs or expenses of any proceedings before it under this Part which are incurred by any party shall be paid by any other party and may tax or settle the amount of any costs or expenses to be paid under any such order or direct in what manner they are to be taxed.

(3) Where—

(a) the Court makes an order by way of determination of a dispute referred to it pursuant to section 52, the Court may, in its discretion, direct that the order shall have effect retroactively to such date as the Court specifies; but no order shall have effect from a date prior to the date on which the dispute was formally referred to the Court;

(b) the Court fixes an amount of equitable remuneration or compensation pursuant to paragraph (b) of section 50, the Court may also give directions as to the method and time of payment and may stipulate such other conditions of payment as it considers reasonable.

(Dispute with licensing bodies)

52.

(1) Where a dispute arises between any person and a licensing body with respect to—

(a) the refusal of the licensing body to grant to that person a general licence to which this section applies; or

(b) the terms and conditions on which the licensing body is prepared to grant such a licence,
either that person or the licensing body may refer the dispute to the Court.

(2) This section applies to a general licence authorizing the licensee—

(a) in the case of a work or sound recording, to make a reproduction, public display, public performance, broadcast or communication to the public of the original or copies of the work or sound recording;

(b) in the case of a performance, to make a fixation or to broadcast or to communicate to the public the performance.

(3) For the purposes of this section, a licensing body shall be deemed to have refused to grant a general licence to a person if the licensing body has failed, within a reasonable time from the date when that person has made a written request to the licensing body for such a licence, to grant a licence or to state in writing the terms and conditions on which it is prepared to grant the licence.

(4) While an order made by the Court by way of determination of a dispute referred to it pursuant to subsection (1) remains in force, either party to the dispute may refer the matter back to the Court for further consideration, but except with the special leave of the Court—

(a) an order made so as to be in force for not more than two years from the date it took effect may not be referred back to the Court under this subsection;

(b) an order made so as to be in force indefinitely or for more than two years from the date it took effect may not be referred back to the Court before the expiry of twelve months from the date when the order was made.

(Rights of appeal)

53.

(1) Except as provided for in subsection (2), the hearing and determination of any proceedings before the Court in the exercise of the jurisdiction conferred on it by this Part shall not be challenged, appealed against, reviewed, quashed or called in question in any Court on any account whatsoever.

(2) A party to proceedings before the Court by virtue of the jurisdiction conferred on it by this Part is entitled as of right to appeal to the Court of Appeal on any of the following grounds, but no other:

(a) that the Court had no jurisdiction in the matter, but it shall not be competent for the Court of Appeal to entertain such ground of appeal, unless objection to the jurisdiction of the Court has been formally taken at some time during the progress of the matter before the making of the order or award;

(b) that the Court has exceeded its jurisdiction in the matter;

(c) that the order or award has been obtained by fraud;

(d) that any finding or decision of the Court in any matter is erroneous in point of law; or

(e) that some other specific illegality not mentioned above, and substantially affecting the merits of the matter, has been committed in the course of the proceedings.

(3) On the hearing of an appeal in any matter brought before it under this Act, the Court of Appeal shall have power—

(a) if it appears to the Court of Appeal that a new hearing should be held, to set aside the order or award appealed against and order that a new hearing be held; or

(b) to order a new hearing on any question without interfering with the finding or decision upon any other question, and the Court of Appeal may make such final or other order as the circumstances of the matter may require.

(4) The Court of Appeal may in any matter brought on appeal before it dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred notwithstanding that it is of the opinion that any point raised in the appeal might have been decided in favour of the appellant.

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PART X
FINAL PROVISIONS

(Scope of application of Act)

54.

(1) The provisions of this Act concerning the protection of literary and artistic works shall apply to—

(a) works of authors who are nationals or residents of, or domiciled in, Trinidad and Tobago;

(b) works first published in Trinidad and Tobago, and works first published in another country and also published in Trinidad and Tobago within thirty days, irrespective of the nationality, residence or domicile of their authors;

(c) audiovisual works, the producer of which is a national or resident of, or domiciled in, Trinidad and Tobago; and

(d) works of architecture erected in Trinidad and Tobago and other artistic works incorporated in a building located in Trinidad and Tobago.

(2) The provisions of this Act shall also apply to works that are protected in Trinidad and Tobago by virtue of and in accordance with any international convention or other international agreement to which Trinidad and Tobago is party.

(Application of Act in relation to performers, sound recordings and broadcasts)

55.

(1) The provisions of this Act on the protection of performers shall apply to—

(a) performers who are nationals or residents of, or domiciled in, Trinidad and Tobago;

(b) performers who are not nationals or residents of, or domiciled in, Trinidad and Tobago but whose performances—

ii(i) take place in the territory of Trinidad and Tobago;

i(ii) are incorporated in sound recordings that are protected under this Act; or

(iii) have not been fixed in a sound recording but are included in broadcasts which qualify for protection under this Act.

(2) The provisions of this Act on the protection of sound recordings shall apply to—

(a) sound recordings, the producers of which are nationals or residents of, or domiciled in, Trinidad and Tobago;

(b) sound recordings in respect of which the first fixation took place in Trinidad and Tobago; and

(c) sound recordings first published in Trinidad and Tobago.

(3) The provisions of this Act on the protection of broadcasts shall apply to—

(a) broadcasts of broadcasting organizations, the headquarters of which are situated in Trinidad and Tobago; and

(b) broadcasts transmitted from transmitters situated in Trinidad and Tobago.

(4) The provisions of this Act shall also apply to performers, producers of sound recordings and broadcasting organizations protected by virtue of and in accordance with any international convention or other international agreement to which Trinidad and Tobago is party.

(Act No. 13 of 1985 repealed)

56. The Copyright Act 1985, is repealed.

(Regulations)

57. Except for the matters required to be prescribed by Rules of Court for the purposes of Part IX, the Minister may make regulations prescribing such matters as are required or permitted by this Act to be prescribed or as are necessary or convenient to be prescribed for carrying out or giving effect to the provisions of this Act.

(Savings)

58.

(1) Nothing in this Act shall affect the operation of any rule of equity relating to breaches of trust or confidence or the provisions of the Protection Against Unfair Competition Act, 1996.

(2) Nothing in this Act affects the right of the State, or any person deriving title from the State, to sell, use or otherwise deal with articles so seized, impounded or forfeited under the Customs Act, including any article forfeited by virtue of this Act or any other written law.