Copyright

Copyright is the legal property right granted to the author or owner of

• original literary, dramatic, musical or artistic work
• sound recordings, films’ broadcasts or cable programmes
• typographical arrangements of published editions

A closely associated field is “neighbouring rights” or “related rights”, or rights that encompass similar or identical rights to those of copyright, although sometimes these can be limited and of shorter duration.

The beneficiaries of related rights are:

• Performers such as actors and musicians in their performances;
• Producers of phonograms (for example, compact discs) in their sound recordings; and
• Broadcasting organizations in their radio and television programs.

The Antigua and Barbuda Copyright Act 2003 applies to:

• Literary works such as novels, poems, plays, reference works, and newspaper articles;
• Computer programs, databases;
• Films, musical compositions, and choreography;
• Artistic works such as paintings, drawings, photographs, and sculpture;
• Architecture; and
• Advertisements, maps, and technical drawings.

Only original and substantial works are capable of being protected by copyright law. Subject matter is not protected under copyright law. These include ideas or concepts, discoveries, procedures and methods. Works or other subject matters that are not in a tangible form of writing or recording and subject matters that are not original works of the individual also do not apply to copyright. All works must be fixed or placed in some permanent form for copyright to apply.

There are two types of rights under copyright:

• Economic rights, which allow the rights owner to derive financial reward from the use of his works by others; and

• Moral rights, which protect the non-economic interests of the author.

The economic rights owner of a work can prohibit or authorize:

• its reproduction in various forms, such as printed publication or sound recording;
• its public performance, such as in a play or musical work;
• its recording, for example, in the form of compact discs or DVDs;
• its broadcasting, by radio, cable or satellite;
• its translation into other languages; and
• its adaptation, such as a novel into a film screenplay.

The moral rights give the right owner to:

• Be identified as the author
• Object to treatment of his/her/its work that is derogatory i.e. addition, deletion, alteration or adaption the work or treatment that is damaging to the honour or reputation of the author
• Not have a literary, dramatic, musical or artistic work falsely attributed to him as an author

All creators such as citizens, legal residents, and companies established under the Copyright Act 2003 are qualified to be copyright owners. Copyright Treaties acceded to by a country also ensures the protection of citizens, residents, and companies of other states, as is set out in the 2003 Act.

There is no need to file for registration to get copyright protection. An author automatically enjoys copyright protection as soon as he/she creates and expresses his original work in a tangible form, such as in a recording or writing. 

The finished product of your work must bear your name and the year or date of creation or publication. You may also use the universal copyright symbol © or the word “copyright” on the copies of your work alongside your name and the date or year. This serves to give notice to others of your rights in the work and help you prove your copyright ownership in Court

A common method of recording copyright is to place a copy of your creation in a self- addressed envelope, seal it and post it to yourself via registered mail. Once the envelope arrives, leave the envelope sealed and keep it safely. You are advised to also keep all rough work, sketches and materials used in the creative process as further proof.

Comparably, emailing a copy of your creation to yourself also offers copyright protection. This provides a digital timestamp of your work which serves as proof of the date of your copyright claim.

• For literary, dramatic, musical and artistic works – 50 years from the end of the year in which the author died.

• For published editions of literary, dramatic, musical or artistic works (layout) – 50 years from the end of the year in which the edition was first published.

• For sound recordings and films – 50 years from the end of the year in which the sound recording or film was first published.

• For broadcasts and cable programmes – 50 years from the end of the year of making the broadcast or cable programme.

• For typographical arrangement – 25 years from the end of the calendar year in which the edition was first published.

Copyright protection is based on territory or location. This means that copyright protection depends on the national laws where protection is wanted. Antigua and Barbuda receives protection as a member of the Berne Convention for the Protection of Literary and Artistic Works 1986, and as a result our copyright receives protection in over 116 other countries.

As a copyright owner, it is for you to decide whether and how to license the use of your work. A licence is a contractual agreement between the copyright owner and user which sets out what the user can do with a work. An exclusive licence could be granted, but this enables the licensee to use the copyright work in the manner specified by the licence to the exclusion of all others, including the copyright owner. 

You may seek advice from a lawyer, particularly one specialising in copyright and contract law, before proceeding.

Contractual agreements are likely to be important when you:

• Need a partner to help exploit the copyright work.
• Wish to negotiate the sale or other transfer of the copyright.
• Would like to agree a licence with someone else who wants to use the copyright work.
• Would like someone else, such as a collecting society, to administer some or all of the economic rights.

Copyright violations come about when someone has not been given permission from the copyright owner to do something that only the copyright owner has the right to do. A copyright violation occurs where a substantial amount of the original work, based on quality, has been copied.

Infringement also occurs when one deals commercially with infringing copies, e.g., if a person:

• Imports infringing copies for sale or distribution.

• Sells (including distribution for trade or any other purpose to an extent that affects prejudicially the copyright owner) or lets for hire infringing copies.

• Offers infringing copies for sale or hire by way of trade.

Under the Copyright Act, actors, musicians, dancers, poets, etc also have performers’ rights. In Antigua and Barbuda, a performer has the exclusive right to prevent any person from commercializing his or her performance without consent. A person who makes an unauthorized recording of a substantial part or the whole of a performance (other than for private or domestic use) may be guilty of infringing the performer’s rights. Publicly showing or broadcasting a performance without the performer’s consent is also not allowed in the law.  Rights to record a performance may also be granted to another person or entity so their rights should also be observed.

Some of the general exceptions to copyright protection are:

• Using the work for your own research and private study
• Where snippets of the work are being criticized, reviewed or reported on
• Where the work just incidentally appears in another work (e.g. someone posed for a photo and there was a painting in the background of the picture that is not the focus)
• Fair dealing
• Educational purposes (except photocopying)
• Use of works by libraries and archives
• Using works in court or parliamentary proceedings.

Crown copyright protects work created or owned by the Antiguan and Barbudan government in which the work was made. It covers materials released or published by the King and his representatives, including the Governor-General, Government agencies, Ministers, and State-owned enterprises.

In essence, you are free to use, distribute and adapt the work, as long as you attribute the work to the Crown and abide by the other licence terms.

You may quote or reference Crown copyright works freely and without permission.

• Content from Crown publications and web pages can be copied, accessed, viewed, reproduced and printed for non-commercial purposes. You should credit the owner and source (e.g. ISBN, ISSN, ISMN or web page address).
• All Crown information must be accurately reproduced and exclude anything that has been officially redacted/blacked out.
• You must not use the material in a manner that is offensive, deceptive or misleading.
• You should contact the Government Ministry, Agency or State-owned enterprise concerned for clearance to reproduce and recoup copying costs or re-use protected Crown copyright works. You will need permission if you intend to on-sell government information from public records and government information. You must have authorisation to use an Antigua and Barbuda government logo or emblem.
• Crown publications often make a copyright statement setting out licensing restrictions and terms of use, for example: ISBN 97.

Copyright infringement is a crime under the Copyright Act 2003, which can lead to fines and or imprisonment for those responsible. In the event that you discover that your copyright is infringed, there are civil and criminal remedies available to you against those who have infringed your copyright.

Therefore, the enforcement of your copyright depends predominantly upon you. Consult an Attorney-at-Law to advise you on your options. Consider, though, that unless you report such infringement to the Police, they will be unable to assist you.

A copyright owner can take civil legal action against any person who infringes the copyright in the work. The owner may seek all necessary relief against the infringer, such as an injunction to prevent further infringement and an order for delivery of the infringing items. The copyright owner may also ask for the disclosure of information about the supply and/or dealings of the infringing items and an award for damages as well as costs.

Antigua and Barbuda has established a Copyright Tribunal that exclusively hears matters involving copyright royalties. (Section 103 (1) of the Copyright Act 2003)

The functions of the Tribunal includes:

1.  to hear and determine –

(i) any matter referred to it pursuant to any provision of Part VII relating to a licensing scheme or licence;

(ii) an application under section 101 to settle the royalty or other sum payable for rental of a sound recording, film or computer programme; 

1. to keep under review the prescribed rate of royalty payable to a performer in connection with an adaptation of an original recording of his performance; and 
2. to make recommendations to the Minister on the rate of royalties or other payments payable in respect of the use or presentation in such national cultural events as he may by order designate any works or performance in which copyright or other rights subsist.

(2) In relation to its functions under subsection (1) (b), the Tribunal may from time to time on its own initiative and shall, on a request made in writing by the Minister, enquire into the appropriateness of such rate and make such recommendations to the Minister with respect thereto as it thinks fit.

There are criminal aspects of copyright infringement. The Royal Police Force of Antigua and Barbuda has extensive powers of search and seizure in the investigation of alleged infringements and has the power to confiscate suspected infringing copies. Importing or exporting pirated articles is a criminal offense. It is also an offense to be involved in copyright piracy outside Antigua and Barbuda for the purpose of importation into Antigua and Barbuda.

The circumvention of copyright protection whether through a device or scheme is also an offense punishable up to a $5,000 fine and/or two years imprisonment under the 2003 Act.