The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

ATTORNEYS for Galleria Cinemas yesterday said the Court of Appeal had “shockingly misunderstood” copyright law in a ruling that revives a long-running claim against the movie operator.

Greg Moss told Tribune Business that Galleria, whose principal is Democratic National Alliance (DNA) leader Chris Mortimer, planned to appeal the verdict to the Privy Council, adding that “we have to get this right” if the creative economy is to flourish.

Mr Moss, the former MP, was speaking after the Court of Appeal unanimously overturned a previous Supreme Court verdict that found the owners of musical copyright relinquished such rights when their work was incorporated into movie soundtracks.

But acting Justice Milton Evans, in a ruling supported by his two fellow Appeal judges, found that there was nothing in the Copyright Act 1998 to support Galleria Cinemas’ contention that the authors of music give up their ownership rights when their works are used in film sound recordings. The outcome of the case, which was brought by the UK-based Performing Right Society (PRS), thus has critical implications for singers, musicians and songwriters - both Bahamian and foreign - over the use of their works in the Bahamas and the compensation/royalties they will receive.

Mr Moss yesterday suggested the verdict, and likely Privy Council hearing, would have ramifications beyond music by potentially impacting other forms of copyright and their owners, thus impacting the Bahamas’ efforts to develop the artistic and cultural economy.

Trade-Related Intellectual Property Rights, or TRIPS, are also a key component in rules-based trading regimes, and will assume critical importance as the Bahamas moves to become a full World Trade Organisation (WTO) member by end-2019.

The Government has recently sought feedback on numerous intellectual property rights upgrades, and their accompanying regulations, and Mr Moss acknowledged that the Copyright Act and its interpretation were critical to the conduct of commerce in the Bahamas.

“Certainly copyright is very important, and we have to get this right for business purposes,” he told Tribune Business. “Our intention is to appeal this matter to the highest court, which is the Privy Council.

“We deal with very complex commercial matters including copyright laws, and as we move into developing artistic areas of our country, intellectual property and copyright law has to be properly understood so that we not only protect our country but international artists that choose our jurisdiction.

“We have to have a modern approach to copyright law, and that is the Berne Convention, the US Copyright Act/Title 17 and the Copyright Act 1998. The Court of Appeal has completely eviscerated that approach if that ruling is allowed to stand. We intend to file [for leave to appeal] within the next week approximately.”

Copyright is intended to protect inventors and creators by preventing their works, in any form, from being copied or used without permission. Strong laws and regulations in this area are critical to developing not only the cultural/artistic economy but also if the Bahamas is to attract innovative industries based on research and development, such as the technology sector.

“There’s no doubt this is crucial,” Mr Moss added. “Not just to music, but all copyrights; artistic works, technical works - every component of thought. The question is how those thoughts translate.

“This [case] will be a starting point to flesh out what the provisions of the Act really mean 20 years later.” Mr Moss said the PRS action against Galleria had begun in 2001, and added that the Court of Appeal’s ruling did not expose New Providence’s sole cinema operator (at least until the IMAX complex on Gladstone Road becomes operational) to a major copyright claim.

Acting Justice Evans, in his written ruling, said the matter originated in PRS’s claim that Galleria was breaching the musical copyright of its Bahamian and international members, who include song writers, composers and music publishers.

“The specific allegation of infringement is that the respondent [Galleria] has repeatedly ‘authorized’ or “‘permitted’ public performances at its Cineplex of ‘films containing musical works in the plaintiff’s repertoire’ without the licence of the appellant [PRS],” Justice Evans found.

“In the alternative, the appellant alleges that the respondent has infringed the appellant’s said alleged copyrights by ‘authorising and/or permitting’ its said premises to be used for the ‘performance’ of ‘films containing musical works in the plaintiff’s repertoire’ without the licence or consent of the appellant.”

Galleria, though, argued that the PRS’s case was “wrong in law” because, based on the Copyright Act’s definition of ‘musical works’, such protection was limited to written music intended to be “sung, spoken or performed”.

The cinema operator argued that the copyright/ownership rights to musical works were extinguished when they were incorporated into movie soundtracks, with the copyright becoming solely vested in the latter.

Justice Ian Winder, at the Supreme Court level, agreed with this interpretation of the Copyright Act’s section 9 (1) (d), finding that the soundtrack was “separate and distinct from a musical work” and that “any overlap” of copyright ownership would create confusion.

Mr Moss and Galleria argued that the Copyright Act’s section 74 reinforced this position, as the owner of ‘musical works’ did not retain their copyright when this was incorporated into a sound recording.

But Ferron Bethell, of Harry B Sands & Lobosky, argued on the PRS’s behalf that ‘musical works’ maintain a separate identity from sound recordings or film tracks, meaning that there were in effect two copyright owners.

Acting Appeal Justice Evans noted Mr Moss’s argument that the Copyright Act’s definition was different from US law, and added: “The resolution of this appeal, then, lay in the determination as to whether on a proper interpretation of the Act, the exclusive right of public performance associated with a musical work is extinguished when that musical work is embodied in a sound recording and that sound recording is subsequently embedded in a motion picture.

“I am satisfied that Section 6(1) (b) provides for a copyright to be obtained in musical works, and by virtue of section 9 ((1) (d) the author of that musical work has the exclusive right to authorise the performance of that work publicly.

“On my reading of the Act I can find nothing which substantiates the position that a holder of that copyright loses his right to the same once that musical work is incorporated into a musical recording. In my view, the author of the musical work and the author of the sound recording which comprises the musical recording can each at the same time hold copyrights to their creations.”

The Court of Appeal found that Mr Moss and Galleria were “technically correct” in arguing that musical work copyright was limited to the song “intended to be performed”, and not the performance itself.

But Acting Appeal Justice Evans said this “overlooks the salient purpose and effect of a copyright. The intent of the copyright is to confer moral and economic rights on different categories of creators, and to ensure that no unauthorised use of the works take place,” he added.

“The appellant in this case is not alleging that it has a copyright in the performance - ie, the sound recording nor the Motion picture. They recognise that there are three separate and distinct copyrights. Firstly, the copyright to the musical work; secondly, the copyright to the sound recording; and finally, the copyright to the motion picture.

“They submit, however, that notwithstanding any arrangements between the owner of the sound recording and the producers of the motion picture, the production of the motion picture remains subject to the authorisation of the authors of the musical work.” On this basis, the Court of Appeal overturned the Supreme Court verdict.

Mr Moss argued the ruling deviated from the Berne Convention, the international treaty designed to protect literary and artistic works, and which the Bahamas’ Copyright Act 1998 is intended to parallel and be aligned with.