Creative content and its use

Someone recently asked whether the copyright law of Dominica was as stringent as they had been told or indeed, understood it to be. I responded that there are substantial fair use or fair dealing provisions of which one ought to be aware. I further went on to explain that copyright law is not in place to prevent use and creativity, but rather to enhance and further use, promote creativity and ensure rewards for same.

The intellectual property system has a three-fold purpose that is to promote creativity or innovation, ensure fair reward and promote use. The system was not put in place to prevent users from making use of products in which intellectual property rights (copyright, trade marks, design rights and patents) subsist.

This point is key in understanding the purpose of intellectual property rights. And particularly as it relates to copyright in Dominica.

A. Promote creativity
A party who uses works protected by intellectual property rights will more likely than not, enhance the works. In so doing, that person creates a new or original product. Therefore, it is logical that should that person seek to enhance the works for the purpose of making a new or original product to be commercialised or traded, that that party seek authorisation from the owner of the copyright (or other intellectual property rights) for use of their copyright in the product.

Dominicans are a very creative lot and creativity ought to be promoted, not stifled. It follows therefore that where a party seeks to use the creative expression of some other party, the former must obtain the consent of the latter, IF the purpose of using the latter’s creative expression is serves to create an original product and therefore obtain revenue therefrom.  Or IF use is made in such a manner that it prejudices the financial interests of the holder of the intellectual property rights in the creative content.

B. Ensure fair reward
It is understandable that a person must be paid for his hard work. No one works for free. Everyone has bills and commitments which they must meet. Obtaining consent for the use of the intellectual property rights of an owner / holder ensures that s/he obtains just compensation for his rights in his creative work. Given that you, as the user are yourself, or will yourself, obtain compensation through SALE (or license) of the new or original product which you have created.  Or you may increase your income through the use of that creative content as consumers could be spending more.

But even if you were to decide, that you will not sell that product but instead, will post it on Facebook or another networking site thereby failing to harm the interests of the right holder. You will consequently harm the interest of the right holder as in your action, you are unilaterally preventing the right holder from selling or licensing his rights in the product (video, photograph or otherwise) and thereby preventing him from obtaining compensation for his work. Moreover, you are giving away his product and allowing users worldwide to access that information. They in turn, may make a new or original product from that which you have given them, and commercialise it. Again harming the financial interests of the right holder.

Thus with the advent of Carnival next month, it is with eagerness that we will seek to take photos and film the various events.  We must however be cognisant that this does not give us the right to post these videos and photos on networking sites and other internet sites unless the expressly authorized to do so by the performers and artists.

C. Promote use.
There is no question that intellectual property rights serve to promote use. There is absolutely no point in having a product which consumers do not require and therefore will never purchase. It is because we are consumers that new products are created, whether it is the new blackberry, or the new swanky small laptop, or a new poster of Michael Jackson.

But use in itself is not the issue. Of course you can take a film of an event, or a show. But you cannot, put out that film for the world to see because you have no control over what the rest of the world will do with that film nor do you have the consent of the owner of that event.   While you may own your camera, you do not own the images (or videos) which were taken by the camera if they were taken of say a performer or of an actor doing his show.

There is a distinction to be made between private use and commercial use. Where use is private, it is ok to show the film to family and close friends. Dominica’s copyright law does not restrict the number of friends you may have at your house for the purpose of the showing. However, if you were to charge a fee to your friends to come see that film, then you are commercially exploiting the film without the consent of the right holder. Therefore you are damaging his/her financial interest.

Care ought also be taken when posting on the internet. If you wish to share music videos (or otherwise) with your friends, it is not advised to post these videos or information on the internet. This information is not your personal information therefore you have no control over that information.

Although, there is a caveat, if you BOUGHT THE INFORMATION (and the intellectual property rights therein) in a market where it is legally available, and you wish to sell, rent, lease or otherwise, you are fully entitled to do so and have every right to do so. Buying the information makes it yours and gives you full entitlement to share with others.

Contact

Marcia B Moulon-Atherley, Attorney at Law and Avocat à la Cour

Law Office of Marcia B. Moulon

www.moulonlaw.com

Copyright Marcia B. Moulon-Atherley, Esq. 2009-2015.  All Rights Reserved.