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Galleria’S Copyright Fight To Privy Council

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Galleria Cinemas has won permission to appeal a judgment, which its attorney says threatens to “stagnate” the Bahamian creative economy, to the London-based Privy Council.

Gregory Moss told Tribune Business that the cinema operator’s 18-year battle with the Performing Rights Society (PRS) was “a very important case” for the development of all artistic “genres” and determining what the Copyright Act’s provisions really mean.

The former MP said the Court of Appeal verdict in favour of the PRS, which overturned an earlier Supreme Court verdict that found for Galleria, threatened to create an unworkable scenario where artists had to be compensated at every turn - even if just a small piece of their work was used - by their counterparts in a later, original creation.

Mr Moss said he had “absolute confidence in the outcome” of the case, and expressed belief that the UK-based Privy Council, the highest court in the Bahamian judicial system, will “set it right” and reinstate the first verdict by Supreme Court justice, Ian Winder.

“We’ve been fighting this case now for 18 years, and we were very pleased to have the judgment of Justice Ian Winder a year-and-a-half ago when he agreed with our position, but the Court of Appeal reversed him.

“We were able to convince the Court of Appeal that we have the right to appeal to the Privy Council, and are quite confident the Privy Council will prefer the verdict of Justice Winder on this. I have absolute confidence in the outcome of the case. I think the judgment of Justice Winder properly reflected the law. We’re satisfied the Privy Council will set it right and reinstate his judgment.”

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.

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 mid-2020. The Government has sought feedback on numerous intellectual property rights upgrades, and their accompanying regulations.

Galleria, whose principal is former Democratic National Alliance (DNA) leader, Chris Mortimer, had argued that the owners of musical copyright relinquished such rights when their work was incorporated into movie soundtracks, with ownership now vested solely in the latter.

The UK-based PRS, acting on behalf of its Bahamian and international members, who include song writers, composers and music publishers, had initiated the legal battle in 2001 by claiming Galleria was breaching the musical copyright of its Bahamian and international members.

It claims 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]”.

While Justice Winder backed the cinema operator’s position, acting appeal Justice Milton Evans, in a ruling that was last year supported by his two fellow Appeal judges, found 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 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 - hence Galleria’s appeal to the Privy Council.

Mr Moss told Tribune Business on Friday that it was “a very important case, a very important case” whose outcome could have the effect of stifling artistic development in The Bahamas depending on which way the Privy Council rules.

He argued that it deals with “the whole right of derivative works”, and the differences between old UK law on one hand and the modern UK copyright version, the Berne Convention, the US Copyright Act/Title 17 and the Copyright Act 1998.

Mr Moss said the old UK version required the creators of musical works to be compensated with royalty payments every time their song was played on the radio, TV and cinema. Artists were collectively represented by the PRS, but the attorney argued that the modern world had recognised this was unworkable, amending copyright laws accordingly.

“Once you licence your musical work to be included in an audio-visual work, it does not have a separate equity from the audio-visual format,” Mr Moss said, laying out Galleria’s case. “The audio-visual format becomes the derivative work when it is shown on screen; you can’t complain when it is shown on the cinema screen.”

He added that the same principle applied to “derivative works for music”, where “snippets” of a song were taken and included in a new, original work. Mr Moss argued that such artistic development will be stifled if royalty payments have to be made to the first song creator every time the new work was played.

“This, then, frees up artists to develop their art,” he explained. “It gets past the point of stagnating the art... The Copyright Act was supposed to get past this. .... If the position is that you can only extend development of a particular genre by paying a royalty to someone else who introduced the genre, it’s like saying you’re paying someone not to stagnate further development.

“It [the Court of Appeal] ruling is stagnating creative development, artistic development in our country. The Copyright Act was passed in 1998 and enacted in 2000. The fact we do not understand it is somewhat troubling.” Mr Moss said the Copyright Act was intended to extend artistic expression, but did not provide protection for “carbon copies” of original works.

Justice Winder, at the Supreme Court level, found 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 before the Court of Appeal that ‘musical works’ maintain a separate identity from sound recordings or film tracks, meaning that there were in effect two copyright owners.

And acting appeal justice Evans found: “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.”

Mr Moss previously 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.

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