By NEIL HARTNELL
Tribune Business Editor
The US’ top pay-TV network yesterday blasted the Bahamas for its “persistent failure” to compensate it for copyright violations, despite claiming only 20 per cent of the $3 million Fund created to do this.
HBO Latin America, in written testimony submitted to the US Trade Representative’s (USTR) Office’s Special 301 hearing, held yesterday, urged Washington to place the Bahamas back on its Special 301 Watch List.
It alleged that its inability to obtain the claimed $600,000 from the Bahamas’ Copyright Licensing Fund meant that this nation was in violation of its obligations to the Berne Convention, which protects literary and artistic works, and also non-compliant with World Trade Organisation (WTO) intellectual property standards.
That could be problematic, given that the Bahamas’ is currently attempting to accede to full WTO membership, and the issue is likely to be raised by the US and other nations interested in trading with this country.
In a February 8, 2013, letter submitted to the USTR, HBO Latin America’s attorneys said: “The Bahamas Copyright Royalty Tribunal’s (CRT) persistent failure to distribute royalties to HBO LA for the transmission of its programming under the prior compulsory licensing regime constitutes a continuing violation of HBO LA’s intellectual property rights.
“As a result, USTR should place the Bahamas back on the Special 301 Watch List.”
While the Bahamas had ended its compulsory TV licensing regime, via amendments to the Copyright Act that were passed on October 1, 2009, HBO Latin America is seeking compensation for Cable Bahamas receiving, decoding and transmitting its signal to Bahamian subscribers prior to that date.
The BISX-listed communications provider and HBO Latin America now have a commercial agreement that deals with all issues going forward, but the premium US TV programmer said Cable Bahamas had only paid a “nominal fee” into the Copyright Royalties Fund despite charging subscribers a ‘full market price’.
Setting this aside, HBO Latin America then detailed to the USTR how it had attempted to claim against the Fund for more than two years, an effort that had proven “fruitless”.
“On November 17, 2010, HBO LA submitted a royalty claim to the CRT for the transmission of HBO USA’s unlicensed programming in the Bahamas under the prior regime,” its attorneys said.
“Based upon the relative market value of the retransmitted channels, HBO LA requested $600,000 out of the CRT Fund, which reportedly holds just over $3 million.
“Over the last two years, HBO LA has repeatedly corresponded with the Bahamas CRT to inquire about the immense delay in processing its claim,” they added.
“Nevertheless, HBO LA’s efforts to obtain rightful payment of its CRT claim have proven fruitless. We understand that others have likewise encountered obstacles securing royalties from the CRT. Indeed, to our knowledge, the fund has yet to pay a single cent to settle.”
Arguing that the Bahamian Fund’s failure to pay the demanded compensation meant its intellectual property rights were still being violated, HBO Latin America said the situation showed this nation “falls short” of “minimum levels of protection” as demanded by the WTO.
The Government is currently consulting on a package of legislation designed to overhaul and upgrade the Bahamas’ intellectual property rights legislation to WTO-compliant standards.
But this, apparently, is not enough for HBO Latin America, which told the USTR: “The Bahamas continues to violate its intellectual property rights under the Berne Convention.
“While the compulsory licensing scheme has been repealed, The Bahamas continues to violate Article 11(1)(ii) of the Berne Convention because affected copyright owners (like HBO LA) have still been unable to enforce their right to royalty payments set aside as compensation for the previous violations.”
The US pay-TV channel than called on Washington to use the ‘big stick’. “As the multi-year efforts undertaken by US programmers to end the Bahamian compulsory license scheme teaches, absent firm US government action there is no reason to believe that the Bahamas’ continued failure to honour claims on the CRT fund is soon to change and the delaying tactics end.
“Therefore, HBO LA urges USTR to place the Bahamas back on the Special 301 Watch List and to closely monitor its compliance with the Berne Convention and TRIPS Agreement in light of its impending accession to the WTO.”
HBO Latin America was far from alone, as the American Society of Composers, Authors and Publishers (ASCAP) raised the same issue.
Referring to the Bahamas and its Copyright Licensing Fund, ASCAP told the USTR: “The Fund, which the Performing Rights Society (PRS) estimates to be in the amount of approximately $3 million, remains undistributed.
“However, there has been no confirmation of the amount being held nor any publication of procedures to make claims against it.
“Frustratingly, PRS continues to seek responses from the chairman of the Copyright Tribunal for updates on progress, without resolution.
“In his most recent communications, the chairman has asked questions about aspects of the agreement reached between PRS and Cable Bahamas, without providing the reasons for seeking such information,” ASCAP added.
“At this time there remains no clear date by which the PRS claim to the Copyright Royalty Fund will be settled, nor any clarity as to the amount PRS might receive on behalf of the members and sister societies for whom it also seeks compensation.”
Tribune Business reported in December last year that the Bahamas’ Copyright Licensing Fund does not have enough monies to fully compensate intellectual property rights holders who have made “quite significant”multi-million dollar claims against it.
The Copyright Royalties Tribunal had been trying to obtain a completed audit of the Fund to determine how much money had been paid into it, and compare this sum to what was expected to have been received.
It was also seeking to develop a methodology/structure that would regulate how monies were paid out from the Fund, which was set up to compensate rights holders for use of their work in the Bahamas. It would also determine how payments to rights holders were calculated.
It is this ongoing situation, and the inability to claim against/access these funds, that is angering royalty rights holders and the organisations that represent them.