By NEIL HARTNELL
Tribune Business Editor
The Supreme Court has dismissed a second Government bid to strike out a $328.5m damages claim over allegations that it pirated the design for the Bahamian national flag.
Justice Neil Brathwaite, in a November 24, 2023, verdict ruled that James Alexander Darling’s contention that his copyright was violated “contains a number of curious features” that need to be resolved by a full trial of the matter.
While his ruling did not identify what these “curious features” were, the judge rejected arguments by the Attorney General’s Office that the claim should be dismissed after finding the Crown Proceedings Act’s section five (2) did not give the Government “blanket” protection for copyright and intellectual property rights violations.
And Justice Brathwaite also dismissed Mr Darling’s argument that the Government’s defence to his action be struck out because it merely contained “bare denials and non-admissions”, therefore giving no “reasonable cause of defence”.
The judge, while finding that the Government’s defence contained sufficient details demanding that Mr Darling prove he is a copyright holder and that these rights have been breached, ruled that the Government must within 21 days of his verdict “clarify” its opposition to the claim.
In particular, it must specify which of the letters Mr Darling purportedly received from an unnamed former prime minister (likely Hubert Ingraham) and various agencies, allegedly affirming the copyright of his design, are “fraudulent” in the Government’s eyes.
While Mr Darling’s claim has yet to be resolved, should it succeed it would lead to a major revision of Bahamian history, as the now-deceased Reverend Dr Hervis Bain has always been regarded as the creator of the Bahamian national flag and coat of arms.
His action has its roots in events that took place almost 60 years ago prior to both Majority Rule and Independence. That was when Mr Darling’s elder sister, Carolyn Ann Esther Storr-Darling, allegedly wrote to the Attorney General’s Office and other government agencies on January 2, 1964, on her then 10-year-old brother’s behalf seeking protection for the board game he had designed, Fun in The Bahamas.
Mr Darling, in his statement of claim, alleged that the Government confirmed receipt of his sister’s letter on February 3, 1964, and “granted permission.... to copyright the said design”. Copyright is designed to protect the innovations and creativity of entrepreneurs, designers and businesses from being pirated, stolen or used without their permission. In all such cases, they receive no compensation for their ideas.
Mr Darling’s case is the Bahamian national flag “shares similarity” to his Fun in The Bahamas board game design, being “painted the exact colours” with the “same shape and/or layout of the said design”. As a result, he is alleging the Government used his design for the national flag without first obtaining his “license or permission” - thereby committing a breach of copyright.
And the Government, he claims, has acknowledged his copyright and ownership of the design on several occasions. The first was on March 3, 1989, when the Government gave written confirmation that “a search was conducted brought by James Alexander Darling and has found him to be the first inventor and designer of Fun in The Bahamas, the design for the flag of the Commonwealth of The Bahamas”.
Mr Darling’s claim then alleges he was contacted on October 31, 2007, by a former prime minister, which is likely to be Hubert Ingraham, as he held office at that time. The letter “purportedly written” by Mr Ingraham stated: “When I came to know of your intellectual properties I was astounded of the existence to your copyright claim dated July 25, 1988, in addition to a claim submitted on your behalf dated January 2, 1964.
“After verifying these with the registry for the purpose of authenticating the documents which you sent, in observing there are grounds to determine where it can be seen that the design of The Bahamas’ flag and the design that is recorded shares some similarities to an extent that one is clearly an indication of an infringement of the other.
“It is unfortunate that, at the time given for a search of a design to be used as the national flag that proper due diligence was not thoroughly conducted in determining the ownership to a design previously existing in our own registry.”
Mr Darling’s claim alleges that his copyright to the Fun in The Bahamas design was further affirmed by April 25, 2012, correspondence from the Government, which on April 19, 2016, also confirmed it was holding his sister’s original January 2, 1964, letter.
“The plaintiff made numerous attempts to renew the copyright to the said design but was refused by the defendants [the Attorney General’s Office] and or their agents with no reason given,” the claim alleges.
Legal action was initiated after the Government refused to meet or pay Mr Darling’s November 5, 2019, demand for $42m in damages “due to the illegal and unauthorised use” of his allegedly copyrighted design that is still in use as the Bahamian national flag.
He is now seeking $328.5m in compensation, plus an injunction to block the Government from using or reproducing his design without permission. He also wants to be named as the original designer, and wants an inquiry into potential damages.
However, the Government in its amended October 27, 2021, defence refuted all of Mr Darling’s allegations. Referring to the numerous letters and confirmations cited by the latter, it added: “It is the defendant’s position that the purported correspondence relied on by the plaintiff is not authored by the defendant and/or its agents and the same being falsely uttered to a government and/or judicial official knowing the same to be false.”
The Government, in its latest strike out bid, following the previous rejection by acting justice Tara Cooper-Burnside of its contention that the claim was statute-barred, and therefore “frivolous, vexatious and/or an abuse of process”, relied on the Crown Proceedings Act.
However, Justice Brathwaite agreed with Mr Darling and his attorneys, Richette Percentie and Lashanda Bain, that invoking the latter Act now was “clearly an abuse of process” because it should have been raised earlier in the case. And he ruled that the Act’s section five (1) and (2) clauses do “not act as a blanket prohibition” against bringing legal actions against the Government for copyright violations.
Mr Darling, whose previous bid for a summary judgment was dismissed on February 16, 2022, last year, also demanded that the Government’s defence be struck out. However, the latter resisted this, as “it is denied that the plaintiff holds a patent for the Bahamian flag, or that the Crown infringed any copyright”.
Justice Brathwaite, noting that the Government’s denials strike at “the crux of the claim”, said: “The defendant seems to simply be requiring the plaintiff to prove that the sister of the plaintiff sent in any letters in January 1964 seeking to register the designs of the subject game, and that the plaintiff is in fact the owner of a copyright to the game Fun in The Bahamas, as well as to prove the flag of the Commonwealth of The Bahamas does as a matter of fact infringe the copyright of the plaintiff, if such copyright is found to exist.
“These are matters which must be determined at trial following the usual process of discovery, witness statements and cross-examination. I therefore do not accept that the defence consists solely of bare denials with no way of understanding the defence of the defendant.
“However, I do accept that some clarity could be brought to this matter by specifying which correspondence is alleged to be fraudulent, which would have the effect of clarifying whether the various pieces of correspondence from the plaintiff to the servants of the defendant were in fact received, but the effect of that correspondence is disputed or whether the defence says the correspondence was not received.”
As a result, Justice Brathwaite gave the Attorney General’s Office three weeks from November 24, 2023, to file an amended defence clarifying “which of the correspondence is alleged to be fraudulent and what exactly is being contended with respect to the remainder”. Otherwise the Government’s defence will be struck out.
Justice Brathwaite’s judgment emerged in the very same week that Ryan Pinder KC, the attorney general, admitted The Bahamas has been “negligent” in protecting the innovations of its entrepreneurs by failing to keep pace with intellectual property (IP) safeguards.
Addressing an IP consultation with representatives from the cultural and agri-business industries, said it was “the plain truth” that successive administrations have failed to ensure creative money-making ideas were given the necessary protections to prevent them from being pirated, stolen or copied.
Describing the present system for intellectual property rights protection as “clunky, slow and inefficient”, and with The Bahamas also lacking membership in the necessary international conventions, he pledged to transform processes from ones that are manual-based via the launch of an online electronic portal.
Mr Pinder said a dedicated IP Office will be created as a standalone entity, spun out from its present home in the Registrar General’s Department. Confirming that the Government plans to implement IP legal reforms that will bring The Bahamas into line with international best practice, he added that it also intends to establish a “defined sector policy” for intellectual property.