Caribbean Law

WIPO Journal article

2013-05-09T11:48:00.002-07:00

http://www.scribd.com/doc/122930865/Wipo-Journal-3-2

2013-05-02T15:39:00.001-07:00

Connecting the Internet to Intellectual Property in the Caribbean

By Abiola Inniss

The last decade has seen the emergence of the internet at a pace that has left those who use it scrambling to grasp at the enormity of its existence. Policy makers, rights holders, legislators, content creators, users, producers, and a host of others while caught up in its momentum, are still uncertain about how to treat with the issues of regulating aspects of its usage. Some proponents of regulating the usage of the internet think that the interests of all parties should be balanced as fairly as possible through the use of regulations, while others feel that the free market should dictate its development, letting the chips fall where they might. The issue is not simply one of regulating the usage of the internet by giving rights to those who have or claim entitlement, and making everyone else pay for access to those materials they wish to use, it goes far deeper into complex issues and intersects in a number of areas as it does so.

The field of international intellectual property and its attendant laws and policy issues have effects that reach from the top levels of management of large International companies, to the ordinary woman sitting in an internet café in a Caribbean country, making an internet call to the United States about the next expected remittance, or the offshore internet gaming employee in Antigua or the Bahamas. Issues of international trade law, consumer laws and protection, private international law, international finance and local regulatory provisions (where these exist), all combine to create a convoluted mass through which considerable navigation skills (mostly legal) are needed to make any sense of it.

Throughout the years there have been a number of attempts to regulate the varied forms of intellectual property usage by the establishment of conventions such as the Berne and Paris Conventions to which signatories agreed to implement laws within their own countries which would reflect the intention of those agreements and give reciprocity among signing nations. The World Trade Organization and the famous TRIPS agreement (Trade Related Aspects of Intellectual Property Rights) to which developing countries are forced to adhere if they wish to benefit from trade agreements with developed countries, is a stark reminder of the financial power of the intangible known as intellectual property rights and the quest for absolute control over it. Caricom and its Caribbean Single Market and Economy secretariat are yet to respond to the growing complexity of International Intellectual Property in any comprehensive manner and to proffer its citizens some form of leadership on the issues. Internet law is as yet underdeveloped in the region and the lack of investment in technological research and development will serve to ensure that no forward movement is made in this direction.
The WIPO World Intellectual Property Indications Report of 2012 has once again reflected the lack of any significant growth in research and development through patent filings in the Caribbean Region and augments this position. The list of top twenty country offices that reflected increased patent registrations belonged mostly to developed countries with a few from Asia, namely China and India, though Brazil and Mexico did present a notable number of registrations. The reports from past years ( available at www.wipo.int) indicate that there is a direct correlation between research and development and patent filings, both of which have been instigated by the private sector and the governments of the countries listed.

I have discussed this issue at length in the WIPO Journal issue of November 2012 and am still firmly disposed to the position that the responsibility for encouraging innovation and research remains with Caricom and its leaders. Just as CARDI (Caribbean Agricultural Research and Development Institute) was founded, a regional institute for the development of technological innovations needs to be established. No single country within the Caribbean region has the capacity to single handedly tackle the issues of research and development at the level and pace required for any competitive contribution in this field, so that insularity and national pride are of no use to Caribbean citizens in this situation.

Connecting the internet to intellectual property in the Caribbean requires the political and intellectual will of those in authority to create the opportunities for this to happen by developing research and development collaborative agreements, and by establishing the facilities for the purpose. It goes without saying that this is a matter of great urgency. It is left to be seen how the policy makers will act.

2012-10-06T10:58:00.003-07:00

The Guyana Government and the protection of Copyright laws.

By Abiola Inniss

Recent weeks have found the Intellectual Property scene in Guyana astir with activity .According to reports the Guyana Government declared that as a matter of policy it would be spending millions of dollars to procure bootlegged British textbooks from an handful of local copy artists with large scale printing facilities. This bold declaration was made, it claimed, as a means of getting the most for the dollar and supposedly for the benefit of the nation. The Government made this declaration in the face of the existing Copyright Act of 1956 (Cap, 74) which states as follows: " In accordance with the preceding subsection, but subject to the following provisions of this Act, the copyright in a work is infringed by any person who, not being the owner of the copyright, and without the licence of the owner thereof, does or authorises another person to do, any of the said acts in relation to the work in the United Kingdom or in any other country to which the relevant provision of this Act extends." This of course includes copying for the purpose of commercial distribution. For interested readers, the entire Act may be found at http://www.wipo.int/wipolex/en/text.jsp?file_id=229365.

It is important to note that this Act became part of the laws of Guyana after independence in 1966 by way of adoption, and that there have not been any amendments to it by any Governments since then. Even though it may be old law, it is still the law, and this brass faced declaration of disobedience of Guyana's laws by its own Government as a matter of policy, certainly left many informed on-lookers aghast at this new record of economic , diplomatic and legal turpitude that extended this time, beyond Guyana's borders into the waters of International Intellectual Property law and policy. The reaction of the International Publishers was swift, formal diplomacy was engaged, followed by a court order and by Government's admission more talks. The most interesting aspect of these hasty activities is certainly the reliance upon Conventions and Treaties in the hope of finding a remedy in the current situation. The Berne Convention to which Guyana is a signatory and which is an agreement that gives countries reciprocal treatment in intellectual property protection, was cited as a refuge for those seeking relief, as was the Revised Treaty of Chaguaramas. Legal scholarship will however point out that the Berne Convention is not self- executing, meaning that the signatory countries are expected to make the necessary amendments to their national laws in order to accommodate reciprocity.

The Revised Treaty of Chaguaramas under Article 66 Protection of Intellectual property rights , sets out a series of aspirations that shall be pursued by the COTED (Council for Trade and Economic Development),none of which deigns to legislate IP rights for any of the members of Caricom and certainly does not give protection of any kind to anyone. Countries retain their sovereign right to legislate for themselves and that remains the rule. It has long been the contention of this writer, that this 1956 Act is woefully inadequate for the local and international circumstances in which the country and its citizens now operate, and that there is the need to create legislation that balances the interests of citizens, producers, artists ,resellers and others who may hold title in Intellectual Property Rights. This undertaking cannot constitute a single piece of legislation, but must be a series of laws that deal with modern issues such as indigenous, rights , modern patents, internet laws, private international law, consumer laws and international business law. Some countries within Caricom have endeavoured to do just this, and have managed to create forward looking legislation in this area .Jamaica , Trinidad and St Lucia stand out as examples where this has been done.
In the present situation, diplomatic filibustering by the British has been very effective in making the Guyana Government scurry for cover under talks and will most likely resolve this issue.
The new economic world order is one in which IP rights are of premium importance and on which the international community will no longer sit back and ignore or accept excuses from so-called developing countries. The current world trends demonstrate that where the Guyana government refuses to adopt policies, laws and actions that would bring it in line with internationally accepted practices, it will be subject to diplomatic sanctions .The outcome of the court case, if there be one, will be awaited with interest, but this matter will certainly be resolved by economic diplomacy. In the meantime, as I have expounded and advocated for years, Guyana must balance the interests of its citizenry with rights and responsibilities in intellectual Property Law, our place in the world is dependent upon it.

2012-08-31T05:40:00.003-07:00

The WIPO Journal 2012. International Intellectual Property Law and Policy: Can the Caribbean Region Capitalize on Current Global Developmental Trends in Intellectual Property Rights and Innovation Policies? Inniss.A (2012) 3 W.I.P.O.J., Issue 2 © 2012 Thomson Reuters (Professional) UK Limited

Considering International IP development trends and economic growth: Wither Caricom?

2012-06-23T15:28:00.001-07:00

BY Abiola Inniss LLB,LLM,ACIArb In a recent article published in the WIPO ( World Intellectual Property Organization) Journal of May 2012 , titled "International Intellectual Property law and policy: Can the Caribbean region capitalize on current global developmental trends in IP rights and innovation policies?" this writer examined the WIPO report on the creation and exchange of intellectual property rights (IPRs) among developed and developing countries published in the last quarter of 2011and asked the question " In view of the current trends in innovation and IP development policies worldwide, how might the Caribbean region (Caricom) capitalize on current developments for economic growth?’ This question is of dire importance to the policy makers and citizens of the region who ought to become alarmed at the state of regional lassitude in this critical world economic sphere, especially since new technologies, the exchange of information, and knowledge management continue to develop at an astounding pace. The following paragraphs contain a few summaries of parts of the original published article ( available here http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=412405&recordid=4050)and give additional commentary. In the examination of the The WIPO report for 2011 titled “The changing face of innovation” that focused on the growing trend of creation and exchange of IPRs among both developed and developing countries, it was disclosed that there was a growing demand for IPRs, which was directly related to the growth in innovation especially in the area of knowledge markets based on IP rights, a key element of which is the frequent trading and licensing of IP rights among firms. Royalty and licensing fee revenues internationally, had grown from 2.8 Billion USD in 1970 to 27 Billion in 1990 then to 180 Billion in 2009, far greater than the global GDP and there was also the observation of new market functionaries in the business of Intellectual property rights, such as brokerages and clearinghouses. Firms had specialized in particular areas of endeavor and had increased their levels of innovation and efficiency while increasing controls over which kinds of information were released or kept confidential. Maximized learning in open innovation initiatives to allow for greater creativity was also found to be a significant factor along with the control of information. Other key developments include the patenting of complex technologies, these are defined as technologies that comprise several different areas, each of which is patentable and which may have separate owners. This is especially applicable to communication technologies such as software, optics, audio-visual technology, tablet computers and smart phones, which have given rise to companies creating large portfolios of patent rights to the extent that it is felt that the process of innovation is significantly slowed because of the overburdening of patenting systems. It is proposed that efficient patent institutions are essential to the functioning of this system in order that the growth of innovative systems might not be hampered. The report revealed that several countries established systems and policies that would harness public research for innovation such as the creation of incentives for universities and other public research organizations which create patents and go the further step of commercializing them with the result of an increased rate of patent applications by these institutions. It was also found that filings by Universities and Public Research Organizations under the WIPO Patent Cooperation Treaty increased from minimal in the 1980's to more than 15000 in 2010, which could be attributed to the high income economies such as France, Germany, Japan , the United Kingdom, and the United States, though middle income countries have also made significant contributions to this trend. Among the important developments in this area suggested by this WIPO document were that while the high income countries maintain high levels of investment in research and development (R&D) low and middle income countries have increased their levels of participation and spending by 13 percent between 1993 and 2009. Increased publications in peer-reviewed journals in the relevant fields of science technology with co authorship of an international nature along with a list of patents with inventors from more than one country to be a clear indication of increased international collaboration in those fields. It also concluded that societies benefitted greatly from the collaboration in research and development, which lead to IPR creations and new technologies and concluded that joint IP production was usually the result of research and development alliances. Multilateral firms increasingly locate their research and development facilities within other countries, which has resulted in increased economic activity and growth in middle-income countries. Although, admittedly, it reports that among the difficulties with the data were the difficulties in distinguishing between open innovation strategies and established practices of collaboration (e.g joint marketing) and the inability to trace informal knowledge exchanges such as internal policies within firms and exchanges between firms. The argument is made however, that IP protection can shape creative and innovative policy in a substantial way: "IP protection is a policy initiative that provides incentives for undertaking creative and innovative activity. IP laws enable individuals and organizations to obtain exclusive rights to their inventive and creative output. Ownership of intellectual assets limits the extent to which competitors can free ride on problem-solving and related information, enabling owners to profit from their efforts and addressing the appropriability dilemma at its heart…..IP rights are an elegant means for governments to mobilize market forces to guide innovative and creative activity. They allow decisions on which innovative opportunities to pursue to be taken in a decentralized way. To the extent that individuals and firms operating at the knowledge frontier are best-informed about the likely success of innovative projects, the IP system promotes an efficient allocation of resources for inventive and creative activity" This is all very compelling information that favors the implementation of IP rights, policies and laws that can forge the development of this industry in the Caribbean region and which are critical to the development of the region. The major question is, what is the policy plan of the regional governance organization as regards the development of IP policies , strategies, and a cumulative legal and regulatory framework? There are several economic, political and sociological factors that have stymied the process of IP development in the Caribbean region (dealt with in detail in the WIPO Journal May,2012 here: http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=412405&recordid=4050) but the time has surely arrived to craft the policy and legal framework which will allow the Caribbean region to partake in this area of global development In recent years there has been growing recognition of the significance of Indigenous IPR's and IP issues in climate change , while Caribbean governments have discussed these issues, there has been far too much talk and too little effort in garnering expert analyses which could help in the formulation of regional policy. There is the imminent danger of permanent relegation of the region to mindless consumerism of the dictates, policies and technologies of the rest of the productive world, and the eventual loss of any notable identity that excepts sun, sand and sea. Caribbean policy makers need to quickly grasp that Intellectual Property issues cannot be wished away and must be tackled head on right now. Bio data Abiola A.A.Inniss is a leading analyst, researcher and author on Caribbean Intellectual Property and the founder of the Caribbean Law Digest Online. She is a law teacher, alternative dispute resolution practitioner and presenter who has written extensively on Caribbean IP law and other areas of Caribbean law.Among her publications are two books on law, one on Public speaking ,several articles , issue briefs , academic papers and book reviews. She has lectured and presented papers in the Caribbean and the United States of America on Caribbean Intellectual Property, reviewed conference papers and conducted research. She is currently reading for a PhD at Walden University U.S.A.

Alternative Dispute Resolution in the Caribbean: a cultural conundrum-Excerpts from a Guest lecture given at DePauw University, Indiana ,USA , 11/10/2011

2012-01-23T14:53:00.000-08:00

Thank you for the opportunity of speaking to you on a subject that has been of great interest to me and of great importance to the peoples of the Caribbean region.
I know that when many people think of the Caribbean, the immediate images of islands surrounded by sand and sea bathed in sunshine fun and frolic come to mind; that is what we see on TV By extension the exotic jungles of the South America in particular my native land Guyana , the only English speaking country on the continent of South America, may also capture the imagination as a paradise of the kind propagated in the movie Tarzan, very little is known about the cultural intricacies of the region in Western civilization outside of international organizations such as The United Nations and so the substantive issues of community life and conflict ,and of necessity conflict resolution make for a fascinating and important study.

For the purpose of my discourse, I am confined to the fifteen countries which are members of Caricom the formal name of which is the Caribbean Community and which are English speaking with the exception of Suriname and Haiti which are associate members. For further information you may log on to Caricom.org .In order to grasp the concept of this cultural conundrum as I have chosen to call it, we have to take a brief look at the legal system in the region. The English speaking Caribbean inherited much of its cultural norms and its legal system from the British colonizers, so that just like the United States, it has a common law system which is a direct descendant of the English common law system and some of the countries still have close ties to the British since they retain the Privy council as their final court of appeal, others have opted to have the newly created Caribbean Court of Justice as their final Court of Appeal. The history of the region however carries major contributions from the Dutch, Spanish, French and Portuguese as all these super powers from the fifteenth century and onwards colonized all the countries at some point or other and have left significant residue of their legal system in several cases, Guyana for example retains the Dutch land law system and St Lucia, a mixture of French civil law and English common law. The formal resolution of disputes has been rooted in the court system and it is only recently (within the past ten years or so) that widespread recognition has been given to alternative dispute resolution as a formal means of resolving issues. I have used the term ‘formal means of resolving issues’ because ADR is only now receiving official recognition by some countries as a valid means of resolving disputes alongside of the legal system and in many instances as a court connected measure. This is true in countries such as the Cayman Islands, Trinidad, Guyana, Barbados and Jamaica, other countries in the region. The civilization of the Caribbean region was however, created by several different means, first there were the indigenous peoples called Amerindians, then with European colonization there came slavery, which took Africans to the region, and this was followed by Indentureship of natives of Portugal, China and India through formal agreement with their governments and was a paid arrangement to get workers for sugar and rice plantations and other crops. These peoples brought their culture and traditions, their problems and disputes as well as their means of settling disputes. These were termed informal means of dispute resolution, since they did not receive state sanction and were largely ignored as a creole cultural idea which had little to do with the proper regulation of society. These mechanisms thrived in the post slavery period where village elders would be called upon to settle disputes as a panel, or in Amerindian communities, the tribal chief would preside over a matter, headmasters and postmasters were also considered important and respectable persons in whom confidence could be reposed to settle matters. These could range from family disputes to street vending, to livestock and other issues related to common tenancy. In the cities where other issues, such as noise, common rights of way and landlord and tenant problems arose, church leaders were called upon to act as arbiters or mediators as necessary, this was even further delineated by the separate cultural norms of the people who came, the Chinese had their own methods for their internal disputes, the Indians would use the Hindu priest, the Muslims would have the head of the Mosque, Africans would have their religious elders . Caribbean civilization and culture from its inception has always had some form of dispute resolution which has been indigenous to its different populations. Modern times however saw the westernization of ideas which deemed cultural forms of dispute resolution to be old fashioned and saw a heavy dependence on the court system.
We now come to some of the current problems in the areas of society for which alternative dispute resolution may have some answers.
As a result of the westernization of ideas and the dependence on the courts to settle all disputes there has been tremendous overburdening of the justice system. And this is discussed in the article on Restorative justice which deals of course with criminal matters
Crime and the punishment of it has had a standard form regionally with some variations in the form of the application of the death penalty or life imprisonment for serious and heinous crimes, but within the usual schemata of imprisonment or fining (determinate sentencing) for wrongdoing. World trends today suggest that some developed countries as well as developing ones are pressed by the necessity to find alternatives to the traditional scheme of justice dispensation.
This is not simply the result of the musings of well-paid researchers whose sociological theories, however abstract, manage to find favour with the aspiring intellectual elite in governments and so are visited upon the unsuspecting populace who have little means of extricating themselves. The fact is that criminal law has always struggled to balance the issuance of punishment with the offence, as can be seen throughout the development of the common law as it has sought to adjust with the changing times.
A simple example of this would be the constant complaints that we hear about the sentences given in the courts both at the superior and magisterial levels; someone may be found guilty of causing death by dangerous driving and is made to pay a sizeable fine with a short term of imprisonment or no imprisonment at all, while another is found guilty of manslaughter for carelessly or recklessly operating a piece of heavy machinery which causes the death of another and is given a custodial sentence.
The reader may well be challenged to a round of the “spot the difference” game and lengthy arguments may be made on the technical differences engendered in the wrongs on the basis of judicial precedent, but the lack of uniformity in the dispensation of justice remains comfortably seated in its corner minding its own business in the company of aging ineffectual law and order.
One reason for this is that the punishment is subjective in nature and based on retribution and not correction, it therefore means that it will be interpreted and administered according to the consideration of several factors including the personal perspective of the individual judge, though he or she follows and interprets the law. This discretion is so wide ranging that the anomaly is experienced across the sentencing stratum.

Next we turn to civil matters
A cinematic view of community life in any Caribbean nation would reveal a culture which contains a mixture of stereotypes, prejudices, superstitions and beliefs which often compound the issues of what justice is and what is expected of it in the mind of the average citizen. For example , it is common perception that a woman ‘s birthright is the home and that this right is absolute, her physical right is unquestionable while in her home , however if she is violated in any way while outside her home , perceptions tend to vary as to whether the violations were of her own making or whether she contributed to it by being outside her home( see Caribbean legal educator, Hazel Thompson Ahye-‘ Women and Family law and related issues ‘ for further discussion). This idea among others has extended from the grassroot levels to the Halls of Justice, with consequences ranging from the interesting to the appalling. Mediation comes into the Justice system as a means of tempering the dispensing of justice according to fixed principles and judicial discretions and gives disputants the power to discuss their problems under professional guidance and to come to a resolution of their own making. It also gives a means of hearing to those affected by prejudice and other forms of unreasoned or unreasonable thinking, so that a path to common understanding might be laid. It has been found that parties retain a high level of loyalty to their settlements when reached in this way and that there is better opportunity of conciliation afterwards. The obvious advantage is that there is less burden on the courts to deal with petty matters which often permeate the Magistrates courts and which could be dealt with by mediation. Issues of common corridor littering, noise nuisance, market vending disputes, family disputes concerning common dwelling and other similar problems can be addressed in this manner. The overall benefit to the system of Justice is that the municipal courts are freer to deal with more jurisprudentially substantial issues and that a culture of peaceful resolution is recognized at all levels of the society. The economic side of justice dispensation internationally also favours the use of ADR very strongly and the current trend across Europe with the budget cuts has made it imperative for Governments to find other means of addressing the resolution of disputes. In United Kingdom the Government announced proposals to close 54 County courts and 103 Magistrates courts in order to save some 15.3 million Pounds Sterling in annual operational costs. The Courts Minister Jonathan Djanogly is quoted as saying,” Not all disputes need to be resolved in court . I want to explore whether more people can resolve their disputes in a way that leads to faster and more satisfactory solutions.” Lord Woolf FCIArb,the architect of the major reform of the UK Justice system which lead to new Civil procedure rules in 1998 is also quoted as saying, “ The availability and use of mediation is always important but the present financial situation has made its use, whenever possible, essential. No one can afford to ignore the benefits it offers.” In the Caribbean, Guyana recently passed the Mediation Bill which among other things makes the use of Court connected mediation mandatory for some kinds of disputes. Experience has taught however that it sometimes requires more than the passing of legislation to create a new cultural norm .The application of the law may demand conformity from a party to it but does not translate to wide cultural acceptance of an idea and many examples of this abound worldwide, the ongoing debate over the US case of Roe V Wade ,410 U.S. 113 (1973) points out this idiosyncrasy. There needs to be region wide promotion of the concept of alternative dispute resolution and the particular use of mediation in the court systems and in the communities.
The Dispute Resolution Foundation of Jamaica has continuously proved the worth of ADR for more than a decade in resolving gang issues, community disputes , landlord and tenant and a wide range of issues using mediation, negotiation and conciliation, and is in many ways the leading change agents in the region for ADR. And so we come to the conundrum ; since the Caribbean region has had a strong history of ADR, why has it moved so slowly to embrace ADR as a family member? It may be suggested that ADR as it is now promoted is based on western values and cultural ideas which are foreign to the culture in spite of westernization, and that variations will need to be developed to accommodate the cultural needs of the individuals who approach conflict resolution providers for help.

The Virtual Magistrate; An old idea for a New Caribbean cyberspace (part 1

2011-10-03T10:02:00.001-07:00

By Abiola Inniss LLB, LLM, ACIArb

As the Caribbean region struggles to find its own space in the world of virtual business transactions, the issues of transparency, efficiency and dispute resolution have become major difficulties in the development of international business relations and the growth of the region as a whole. The example of South East Asia where significant effort has been dedicated to the development of technological and other resources, and where in the aftermath of war and disaster astounding progress has been observed, ought to provide a catalyst to the notion that the region can yet accomplish significant development if the necessary attention is given to the critical areas with the intention of resolving these problems.
The use of Alternative Dispute Resolution techniques such as online arbitration and online mediation have been tried and proven and many models are in use around the world by individual companies and groups which provide a fee based service. It is here proposed that the Caribbean region needs a single comprehensive online ADR institution which must be grounded in the principles of Private International Law, Cyberspace law and the Law of International Trade in order to withstand the rigours of both international trade and scrutiny, and to meet the standards of judicial competence required of a regional institution. The idea of the Virtual Magistrate is revisited here.
On May 22, 1996, the National Center for Automated Information Research (NCAIR) of the USA held a conference on On-Line Dispute Resolution in Washington, D.C. The conference brought together experts from the Cyber law Institute (CLI), Georgetown University, American Arbitration Association (AAA), Villanova Center for Information Law and Practice and MCI. These experts discussed and designed regulations for the first active online ADR system on the Internet and gave birth to the Virtual Magistrate (VM), the first online dispute resolution facility. It was jointly managed by the Villanova Center for Information Law and Policy, the Cyberspace Law Institute and the American Arbitration Association. The idea behind this project was to develop a response to what was perceived as the immediate global need for dispute resolution mechanisms in cyberspace, in what was then a fledgling but rapidly developing and exciting sector. VM was an experimental project which was intended to measure the use of online arbitration mechanisms for online disputes and to gauge the effectiveness of such a system and whether online users would utilize it. VM was also intended to provide Internet service providers (ISP) with informed and neutral judgments on appropriate responses when making decisions which involved allegations of copyright infringement or defamation. The Virtual Magistrate project offered arbitration to individuals who use online services, systems operators and people who claim to be harmed by wrongful messages, postings and files. The administrators had systems operators in mind when developing this project. Administrators projected that ISPs would use VM decisions as a basis for their contracts and that they would place an arbitration clause in their contracts. VM also considered cases which were directly related to online activities or commerce dealing with compensation or financial obligations.
The Magistrates were selected by the AAA and the Cyberlaw Institute Subcommittee and were paid volunteers randomly selected when a case was accepted. Magistrates needed to be familiar with relevant legal principles as well as technical issues that they could encounter.
When a party wanted to apply for service they had to fill out a complaint form located on the VM’s webpage. The complaint asked for a description of the action, objection to the activity and information about the other person. The complaint was then reviewed by the AAA who, if necessary, would request additional information about the complaint, then secure a participation agreement from both parties. After the necessary documents were secured the AAA would assign Magistrates to the case. The VM tried to resolve all disputes within 72 hours of both parties agreeing to participate.
Communication between the Magistrate and the parties would take place on a designated listserv/newsgroup (“grist”). All participants received a password for access to the grist, where the decision would be posted. In some cases, it may have been necessary for the Magistrate to communicate privately with a party; in these cases communication would take place via the Magistrate’s private e-mail.
VM also decided whether reasonable action should be taken by the systems operator; such as deleting, masking or restricting access to a message, file or posting. If necessary the Magistrate could decide whether access should be denied to certain parties.
The Virtual Magistrate project expected system operators to support and enforce all decisions just as they would in private arbitration. All decisions were made public unless otherwise deemed by the Magistrate. The first decision of the Virtual Magistrate is available here: http://www.interesting-people.org/archives/interesting-people/199605/msg00054.html.
This initial project though it contained many of the basic ideas necessary for the resolution of disputes at the time of its actualization in 1996 and was based on a concept of universality, could not fulfill a global need because of the difficulties involving any attempt to ground it to any particular legal system or systems. It therefore dissolved having created the groundwork for a number of individual mechanisms which are now used worldwide in the resolution of online disputes.
The Caribbean region is in the unique position to create a model for online dispute resolution which goes much further than the Virtual Magistrate project of 1996 and which can encompass the concept of an online international tribunal.

Caribbean Law Digest Online launched

2011-08-19T11:38:00.000-07:00

Caribbean Law Digest Online , a new online law magazine which features Caribbean law has been launched. The website can be found at caribbeanlawdigestonline.com.

Waiting for Justice by Donald Trotman: A Chronicle of a life in the Justice system and a good read

2011-08-01T16:35:00.001-07:00

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By Abiola Inniss LLB,LLM,ACIArb

There are few Caribbean legal writers who may lay claim to as diverse and interesting a career in the law as Justice Donald Trotman; Judge, Attorney, writer, poet, human rights activist and internationalist. Through his book ‘Waiting for Justice ‘ the reader is allowed a privileged walk with the author along a path which branches from the personal experiences of intimate acquaintances with colourful legal characters , to narratives on Human rights and International law. There is a range from localized Guyanese to International experiences and some focus on exceptional Caribbean events such as the 1983 Grenada crisis and the Cuban refugee crisis. The book is a collection of essays which explore the diverse and intricate interconnection of human rights, law, history and politics ranging from the years 1970-2008 and is a unique combination of insight, wit and acquired wisdom which progresses with the development of the book and the author.
The book opens with a tribute to Norman Cameron, a renowned Guyanese Cambridge University trained, and scholar virtually unknown to the present generation of Guyanese and includes quotations from Cameron’s writings on philosophy and politics. There is another tribute, this time to Samuel Wilson, whom the author describes as a scholar –lawyer who was murdered in 1971 and provides interesting material for those interested in the history of the legal profession in Guyana. The focus is turned suddenly, though not surprisingly to human rights (a subject which seems to be a passion of the author) and introduces the complex subject of human rights and politics in a discussion of’ Human rights in different political systems’
The chapter which deals with the Arab gulf situation as it unfolded in the seventies and eighties and offers the reader an historical background to the crises of the period and analyses the perspectives of commentaries offered at the time by international commentators, at all times legal acuity is demonstrated in the precise analysis and concise expression of thought on a challenging area of politics, international law and history. ‘Consideration of some legal aspects of the Cuban refugee crisis’ provides an historical view of international law as it applied in challenging circumstances, students of the subject will find the discussion of extra-territoriality and diplomatic immunity as it applied to those circumstances quite instructive , particularly since legal precedent is integrated in the commentary.
The author reveals a more personal, touching interest in the welfare of children, their human rights and the law, in the essay ‘Children of Guyana’ in which the reader experiences the poet, the humanist and the father all expressed in a poignant appeal for the bettering of their welfare. The cause of the elderly is not neglected and the former Judge and head of the national Commission on the Elderly describes his hopes for the development of a comprehensive scheme which will allow the elderly to enjoy golden years in the dignity they deserve.
An even more compelling offering is made as the reader is allowed the privilege of the story of the Grenada uprising in some notes titled ‘The Grenada story of truth and reconciliation, part 1) in which the author’s experience as a commissioner, some of the findings and recommendations are detailed. The opening part of the epilogue to this narrative expresses the aspiration as follows “This story has been told so that Grenadians may know the Truth about the past in order to be reconciled now and for the future…’ Knowing the truth for the purpose of reconciliation is not an option but a Must’. (sub- quotation Fr. Mark Haynes)”
The Chapter Delay degrades punishment is something of a treatise in due process and equality at law, which is also a topic covered later in the writing. The judge publishes his preliminary ruling in the famous Guyanese case of Abdool Saleem Yaseen and Noel Thomas, March, 7, 1996 in which a civil appeal was made on the issue of the then Attorney General Bernard De Santos appearing as legal counsel. This is followed by his judgment of May 14 1996 in the Court of Appeal in which the same accused sought to have the judgment of Oslen Small J made in the High Court imposing the death penalty for murder on the basis of human rights violations during the period of imprisonment. The judgment sets out the development of the jurisprudence on the subject, the mandatory death sentence, delay in justice, the application of the provisions of the Guyana constitution and the commutation of the death penalty to the lesser sentence of life imprisonment.
In keeping with the theme the next chapter introduces the reader to the European convention on human rights and demonstrates its relevance to the English speaking Caribbean. It is a good analysis which gives some detail on the various systems with which the comparisons are made in establishing the relevance. It some ways this essay constitutes essential reading for students of human rights and international law.
The later chapters of the book discuss the subjects of peace and reconciliation and the author’s work in the field as President of the United Nations Association of Guyana and in other involvements of the same nature is clearly demonstrated in the philosophy, analyses and experiences related in these chapters.
There is little which can be said to deny the significance of the book as a major contribution to the Guyanese and Caribbean discourse on the range of issues which the author expounds and the reader is left with the feeling of having had an intriguing peek into the thoughts of a Guyanese scholar.

Caribbean law journal online -call for papers

2011-06-29T06:58:00.000-07:00

Papers are requested for submission to the Caribbean Law Journal online

The law journal is a refereed publication which will deal with all aspects of law with specific reference to the Caribbean ,though general international law issues may be submitted.

The requirements are as follows :
(a) Case reviews -no less than 1500 words and no more than 3000.
(b) opinion pieces - no less than 3000 words and no more than 5000
(c) articles -no less than 6000 words and no more than 10000.
References - the blue book citation format is required , and footnotes are necessary. MLA format is required.

Papers must be submitted in Word ,Times New Roman Font 12 , double spaced.

Submissions must be made online with cover letter containing author biography to abiinniss@gmail.com

Signifyin Guyana » New Book of Essays Addresses Current Pressing Issues in Caribbean Law

2011-05-19T10:11:00.000-07:00

Signifyin Guyana » New Book of Essays Addresses Current Pressing Issues in Caribbean Law

Essays in Caribbean Law and Policy

2011-05-07T13:59:00.000-07:00

A new book by Abiola Inniss which offers a comprehensive discourse on Caribbean law and policy issues.
Essays in Caribbean Law and Policy

Copying, Copyright and the Internet: The issue of internet Regulation with regard to Copying and Copyright by Abiola Inniss | 9783844315967 | BookRenter.com

2011-04-26T13:10:00.000-07:00

Written by authorities in Franchising, Copying, Copyright and the Internet: The issue of internet Regulation with regard to Copying and Copyright by Abiola Inniss provides an excellent foundation for Franchising studies. Abiola Inniss’s style is excellently suited towards Franchising studies, and will teach students the material clearly without overcomplicating the subject. What’s more, the text is available in the Paperback format shown above (ISBN 9783844315967), as well as a number of other formats. As of March 2011, this revision raises the bar for Copying, Copyright and the Internet: The issue of internet Regulation with regard to Copying and Copyright’s high standard of excellence, making sure that it stays one of the foremost Franchising studies textbooks.

Signifyin Guyana » How Far-reaching are US Copyright Laws?

2011-04-19T10:25:00.000-07:00

Signifyin Guyana » How Far-reaching are US Copyright Laws?

Cultivating intellectual property rights, responsibilities and respect in the Caribbean

2011-04-15T10:34:00.001-07:00

On October 28, 2009, this writer, upon browsing the Kaieteur News of Guyana, was left open-mouthed in astonishment at finding on page 9 of the newspaper, a big bold copy of my last article published on October 27, 2009, by Caribbean Net News entitled ‘Restorative justice: a farfetched idea for the Caribbean?’.

While the reader may at first think it something of an honour, I was astounded to discover that the title had been changed to read “Region may need restorative justice” and that the article was attributed to some place on the world wide web named Hoovers (readers may find a scanned copy of the infringing page here).

At no point was my authorship acknowledged nor was the source from which the article was derived, namely, Caribbean Net News. Being Guyanese, I felt especially wounded at such blatant disrespect and dishonesty as the reward for honest effort and some input of scholarship, and while it is said that life holds few surprises for the wary, the sting of theft is no less painful for the knowledge of the thief and this act in fact places the Kaieteur News in the very bracket of corruption which it claims to highlight in its offerings.

Two other national newspapers in particular, the Stabroek News and the Guyana Chronicle added their tacit consent to this illegality by refusing to publish my letters of complaint on the issue.

Artists, producers, inventors, writers, artistes and all who labour in mind to originate works which add to the general store of knowledge in diverse forms ,are the creators of intellectual property and are therefore entitled to protection of the intellectual property laws, provided of course that such laws exist.

Across the Caribbean region there are varying degrees of interest and effort in the preservation of the rights of originators of works, but there is as yet no concrete regional approach. In addition it has become the cultural norm in most countries of the region to treat IP rights with scant regard so long as it may be done with impunity; the reasons for this range from ignorance that such rights actually exist, to opportunism of varying degrees.

Grenada is to be commended for their efforts and intentions at public awareness and for attempts to offer greater legal protection while Jamaica is perhaps the leader in enforcement of IP rights. Guyana is yet to craft a programme which will incorporate relevant legislation, enforcement, education, and an equitable balance between the need to earn a living and fair access to IP resources.

It is needless to say that the current laws are woefully inadequate, unacceptable and do not for most part incorporate the standards of the conventions on IP to which Guyana is a signatory. Unless it is specifically intended by its construction to become law in signatory territories upon ratification (self executing), any regulations coming from a signed convention must be enacted by the legislature of that country in order to become law.

In short, countries may elect to sign on to conventions but not to enact the provisions as long as there are no penalties attached (very rare) or may choose to find ways of delaying the enactment and implementation of the conditions and avoiding the penalties. This has arguably been the case in some countries which have felt constrained to sign on to conventions with particular regard to IP rights.

It is a fact that most Caribbean countries are members of the World Trade Organization which has made it compulsory for all members to sign on to The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). This means that all Caribbean countries, which are members of the WTO, are required to enact the minimum requirements on IP rights as set out by this agreement in order to participate fully in the WTO system. The agreement has been continuously criticised by many developing countries as giving especial advantage to developed countries which are huge producers of goods which are subject to these rights (see Jagdish Bhagwati (2004), In Defense of Globalization, Oxford University Press).
In the absence of any other comprehensive arrangement and in the face of the growing problems in IP, Caribbean countries need to take some very specific steps deal with their issues.
While Caribbean countries may be signatories to the WTO and TRIPS, CARICOM itself ought to create legal and regulatory framework which will deal with the regional requirements of IP rights. This need not conflict with the minimum requirements for TRIPS and will in fact aid in the development of a regional understanding resolution and development of the issues and benefits.
There are in my opinion three important stages in creating a comprehensive working system for the region:
Firstly there must be the implementation of legal and regulatory framework. In simple terms, the Caribbean Court of Justice ought to be given jurisdiction as a court of first instance on IP matters, which jurisdiction will extend through two other levels of appeals. This will ensure that Caribbean citizens have adequate redress for the infringement of rights. The use of alternative dispute resolution as required by TRIPS is also key, since there are some aspects of IP law which are more suited to this method of resolution than the court system. It would therefore mean that a regional Alternative Dispute Resolution Board must be established to deal with the mediation and arbitration of these issues.
Secondly, there must be enforcement of decisions coming from the CCJ and the ADR Board. In the case of the CCJ, signatory countries already have mechanisms in place to deal with this. The same will have to be done for the ADR Board, though this would only apply to arbitration.
And finally there must be a regional approach to educating our citizens on the issues, building awareness and respect in much the same manner and with the same amount of effort expended on HIV/ AIDS and the CSME for example.
The Caribbean Community must make use of its viable human resource network in order to make a difference for the better in the way our society functions. In order for the law and the society to coexist equably and effectively, there must be a balance of the interests. There is also the requirement of honesty and integrity by citizens, whether corporate or individual. In the case of the Kaieteur News mentioned above, the reader will be the judge.

Amazon.com: Copying, Copyright and the Internet: The issue of internet Regulation with regard to Copying and Copyright (9783844315967): Abiola Inniss: Books

2011-03-22T10:29:00.000-07:00

Amazon.com: Copying, Copyright and the Internet: The issue of internet Regulation with regard to Copying and Copyright (9783844315967): Abiola Inniss: Books

Caribbean Law: Some legal issues in climate change

2011-03-02T07:14:00.000-08:00

By Abiola Inniss LLB,LLM,ACIArb

“The field of law has, in many ways, been the poor relation in the world-wide effort to deliver a cleaner, healthier and ultimately fairer world. We have over 500 international and regional agreements, treaties and deals covering everything from the protection of the ozone layer to the conservation of the oceans and seas. Almost all, if not all, countries have national environmental laws too. But unless these are complied with, unless they are enforced, then they are little more than symbols, tokens, paper tigers.” Klaus Töpfer, Executive Director of the United Nations Environment Programme, 2002.
This statement, made in 2002 is even more critical now with the deleterious effects of global warming and the changing climate. While all this can seem cliché, the real consequences of this environmental debacle on the legal rights of the affected populace are as yet hardly appreciated in the Caribbean. There is little discussion of the problems of international law, human rights law, and even less of the emerging areas of environmental migration and its attendant legal field and possible regulatory framework. Within International law the issues of statehood and statelessness become a real problem in the advent of rising sea levels and the consequential displacement of populations. The awful question of what happens at law if a country disappears under water must be answered in International law; does it retain its statehood? Does it keep its United Nations seat? Who controls its offshore mineral rights, its fish, its airspace and shipping lanes? The law is premised on the idea that countries’ coastlines are a constant and while this has been the reality for centuries with exceptions made for naturally occurring phenomena such as volcanic eruptions which may expand and change landforms, the wholesale reclamation of land by the sea has not until now, posed such large-scale problems for humanity and at law. The Caribbean has experienced the displacement of population in the case of the volcanic eruptions in Montserrat which caused an entire half of a country to disappear and disrupted its functioning as a nation, yet the issue of citizenship in an environmental migration context did not arise since Montserrat retained its status as a UK protectorate and its citizens were subsumed within the United Kingdom. This situation provided an instance of environmental migration and allowed the Caribbean to gauge the devastating effects of the reclamation of land by natural phenomena. The case of the 2010 Haiti earthquake, while tragic in every sense, created more issues of internal displacement and internal governance and not of large scale environmental refugee status problems where millions of displaced people sought refuge in other countries as a consequence of having nowhere to go.
While efforts are being made to mitigate the effects of climate change it must be recognized that there continues to be noticeable physical change created by the rising sea levels. Countries which rely on the principles and laws which create maritime exclusive economic zones will have to begin considering what the consequences will be at law should these coastlines recede, since these zones are measured from the countries’ coastlines. In other parts of the world, the Carteret islanders of Papua New Guinea are anticipated to be some of the world’s first climate refugees since their lands are expected to be underwater by 2015 and its mission to the United Nations has announced its plan to evacuate its two thousand inhabitants to another of its islands. Even more significant however, is the estimation by the International Organization for Migration which projects that rising sea levels, salt water intrusion and accelerated coastal erosion could lead to two hundred million climate refugees worldwide by 2050. The status and rights of displaced persons provide emotional foliage for the issues of the real legal problems of statehood and all the technical problems of a disappearing country. In the history of the world, countries have ceased to exist through war, occupation and state secession; the possibility of disappearance through climate change and the finality of such an event will change the way that International law and municipal law will frame its theories of nation status since the premise of non shifting coastlines is now proving inaccurate. The island states and countries of the Caribbean with low lying coastlines will need to engage in the exploration of the legal scholarship surrounding these issues while observing the debates taking place in other parts of the world. The discussions surrounding climate change have focused for most part on strategies to reduce environmental damage with the assumption that all will be well should these strategies work out, and with the expectation that they will. The reality of the Caribbean nations however, is that the vexing legal issues of water, land, migration and citizenship must be addressed and the question of whether a national of a Caribbean country who is displaced as a result of climate change may be subsumed into another Caribbean country by virtue of Caribbean citizenship and, whether the sinking coastline will be continued to be measured from the point of its origination underwater for the purpose of maintaining the exclusive economic zones.
The field of law provides the necessary reference point , the framework and the intellectual matter to formulate answers to many issues which dog human existence and life in the Caribbean ,and it is paramount that it be put to work to fulfill its potential in creating a useful, “fairer, ultimately healthier, cleaner world”. Concurrently, the national laws, where they exist must be enforced and the conventions revisited to ensure a sensible, modern approach to the issues of climate change and law.

Mediation in Caribbean Justice

2010-11-23T06:14:00.000-08:00

BY Abiola Inniss, LLB.LLM,ACIArb

The use of Alternative Dispute Resolution in the Caribbean is as yet in a fledgling state and there is little information about it in most parts of the region, except for Jamaica which has a considerably developed ADR scheme which focuses on mediation, and there is substantial ignorance about what constitutes Alternative Dispute Resolution. While Jamaica’s Dispute Resolution Foundation has made significant strides in the promotion of peace and reconciliation in various communities as well as in providing useful support to its Justice system, the example has not resounded strongly across the region. Caribbean Justice systems and seekers of justice remain strongly entrenched in the adversarial, combative methods of resolving matters, even with all the attendant difficulties and disappointments which often accompany litigation. It needs to be clear that ADR usually applies to civil matters (person to person non-criminal claims)and that where ADR is applied in the Criminal jurisdiction it is known as Restorative Justice and remains distinct from the other ADR methods comprising conciliation, negotiation, mediation, and arbitration. In selecting mediation for particular attention in the discussion of Caribbean Justice, it is intended that this form of dispute settlement might be considered within the context of the issues which trouble the region at community levels within Caricom countries and their impact on the Justice system. A cinematic view of community life in any Caribbean nation would reveal a culture which contains a mixture of stereotypes, prejudices, superstitions and beliefs which often compound the issues of what justice is and what is expected of it in the mind of the average citizen. For example , it is common perception that a woman ‘s birthright is the home and that this right is absolute, her physical right is unquestionable while in her home , however if she is violated in any way while outside her home , perceptions tend to vary as to whether the violations were of her own making or whether she contributed to it by being outside her home( see Caribbean legal educator, Hazel Thompson Ahye-‘ Women and Family law and related issues ‘ for further discussion). This idea among others has extended from the grassroot levels to the Halls of Justice, with consequences ranging from the interesting to the appalling. Mediation comes into the Justice system as a means of tempering the dispensing of justice according to fixed principles and judicial discretions and gives disputants the power to discuss their problems under professional guidance and to come to a resolution of their own making. It also gives a means of hearing to those affected by prejudice and other forms of unreasoned or unreasonable thinking, so that a path to common understanding might be laid. It has been found that parties retain a high level of loyalty to their settlements when reached in this way and that there is better opportunity of conciliation afterwards. The obvious advantage is that there is less burden on the courts to deal with petty matters which often permeate the Magistrates courts and which could be dealt with by mediation. Issues of common corridor littering, noise nuisance, market vending disputes, family disputes concerning common dwelling and other similar problems can be addressed in this manner. The overall benefit to the system of Justice is that the municipal courts are freer to deal with more jurisprudentially substantial issues and that a culture of peaceful resolution is recognized at all levels of the society. The economic side of justice dispensation internationally also favours the use of ADR very strongly and the current trend across Europe with the budget cuts has made it imperative for Governments to find other means of addressing the resolution of disputes. In United Kingdom the Government announced proposals to close 54 County courts and 103 Magistrates courts in order to save some 15.3 million Pounds Sterling in annual operational costs. The Courts Minister Jonathan Djanogly is quoted as saying,” Not all disputes need to be resolved in court . I want to explore whether more people can resolve their disputes in a way that leads to faster and more satisfactory solutions.” Lord Woolf FCIArb,the architect of the major reform of the UK Justice system which lead to new Civil procedure rules in 1998 is also quoted as saying, “ The availability and use of mediation is always important but the present financial situation has made its use, whenever possible, essential. No one can afford to ignore the benefits it offers.” In the Caribbean, Guyana recently passed the Mediation Bill which among other things makes the use of Court connected mediation mandatory for some kinds of disputes. Experience has taught however that it sometimes requires more than the passing of legislation to create a new cultural norm .The application of the law may demand conformity from a party to it but does not translate to wide cultural acceptance of an idea and many examples of this abound worldwide, the ongoing debate over the US case of Roe V Wade ,410 U.S. 113 (1973) points out this idiosyncrasy. There needs to be region wide promotion of the concept of alternative dispute resolution and the particular use of mediation in the court systems and in the communities. Citizens need to see and feel the benefits for themselves in order to promote a culture of mediation, negotiation and conciliation Arbitration is hardly a community based option since it is more suitable for business arrangements and industrial and commercial disputes. The concept and use of mediation in Caribbean Justice requires far more effort and application than is currently exerted. Certainly it is to be hoped that Caribbean leaders in the legal field and in government will not wait for the gates of perdition to be opened upon our society before embracing Alternative Dispute Resolution.

Some notes on Guyana’s Low Carbon Development Strategy and Global Environmental law.

2010-10-19T11:53:00.000-07:00

The Guyana Low Carbon development strategy has been hailed as an innovative mechanism by which developing countries might maintain their forest resources for the mitigation of the global environmental degradation whilst being compensated for their trouble by developed countries. While the plan seems simple enough, and the regulation of this model has been impressively written up and presented as viable. There has not been significant investigation or consideration of the legal regulation of this model with the intention of creating an holistic legal structure which accounts for the domestic and the international legal principles and regimen which will affect it. There is little understanding of the concept of traditional knowledge and Intellectual property , the interplay of the law of international trade and private international law , the domestic law requirements for the internal regulation of the scheme and the rules of global environmental law which will be applicable to the entire project.
Global environmental law has emerged as an amalgam of various concepts from different legal systems across the globe, from which it has shamelessly borrowed a number of principles. It may be described a set of legal principles developed by national , international and transnational environmental systems to protect the environment and to manage natural resources This has resulted in the universal application of several ideas about the regulation of the environment which are as widely recognized.
Global environmental law has its own body of substantive and procedural rules and mechanisms which are unique to the governance of environmental law across the world. In example, it comprises, public international environmental law, which nomenclature commonly refers to the treaties and customary international law principles governing the relations between nations .It includes national environmental law which of course describes the principles used by local legislation to govern the activities and behavior of persons within a nation’s borders. It extends to transnational law which describes the set of legal rules used to regulate the relations of private persons and organizations across nations.
It should be immediately obvious that a national economic strategy which promotes the controlled and innovative use of forest and forest products with the goal of lessening environmental impact and developing a new brand of commerce would immediately fall into the inextricable embrace of global environmental law. There seems however, to be little attention to this critical aspect of the legal regulation of the LCDS and there is yet significant ignorance about the value of this area of law to the Guyana situation.
Global environmental law has emerged as the result of a necessary interrelation of the practical experiences of regulation, the pragmatic needs of persons and the necessity of regulating national and international conduct. It is not the offspring of social scientists and intellectuals who have nothing better to do than create abstract legal concepts which they are afterward at pains to explain to both themselves and others. The discipline of law is as practical as it is academic, a combination which is exemplified in global environmental law. It is hardly fathomable that the Guyana LCDS which is a significant undertaking does not have the necessary legal research and resulting structure which will support it with a sound internationally viable legal structure. While Guyana seems to have something of an environmental policy, there is as yet no environmental legislation .This is perhaps significant from the point of view of the existing possibility of creating a substantial set of laws which will encompass some of the requirements of global environmental law ; it might also be seen as the result of an apathetic approach legal intellectual work , which does not acknowledge the value of sound , in-depth research, analysis and application, and which could not be bothered to invest in such work. It is the role of the University of Guyana to contribute to the development of the legal framework of the LCDS and to the discussion of the impact of global environmental law on our unique circumstances in Guyana. Our transnational legal relations (Guyana-South America and Guyana-Caribbean with reference to the CSME-Caricom Single Market and Economy) and international relations must also be addressed. As concerns national law, intellectual property must be addressed in a way which takes account of Guyana’s unique circumstances, the WIPO rules and the needs of producers and end users. Global environmental law also contains a significant component which requires intellectual property regulation and from which there is no escape.
It is to be hoped that legal regulators , academics and of course the Guyana government will consult seriously on this subject with the intention of acquiring the necessary knowledge and expertise to devise the supporting legal system for the LCDS. This is not a task for the faint hearted , but it is far easier than coping with the local and international legal issues which will develop in short order ,and for which there will be no scheme for redress. It can hardly be restated enough that the Guyana LCDS needs a robust, working, workable legal and regulatory framework if it is to succeed in the long term. The University of Guyana Department of Law, ought to lend its expertise to instigate the necessary critical research and reporting on this and other areas of law through the establishment of a research unit for the purpose. There is too much at risk , and there are too many challenges ahead to be laissez faire in approach to legal regulation.

The missing legal framework of Guyana's low carbon development strategy

2010-09-16T08:31:00.000-07:00

By Abiola Inniss LLB, LLM, ACIArb The Guyana low carbon development strategy has been hailed internationally for its innovative attempt at mitigating the damage inflicted by carbon emissions globally. It is perhaps even laudable that Guyana’s President Bharrat Jagdeo, Champion of the Earth 2010, has sought to vigorously promote the development and adoption of this strategy in Guyana as a sustainable means of livelihood for its citizens.

At first glance it has a prima facie appearance of a solid, workable alternative to the traditional means of forestry based productivity, complete with value added products, in addition to which, a few interested developed countries such as Norway have given financial commitments in exchange for carbon credits. Simply put, in exchange for leaving our forests intact as far as possible we are to be given sums of money that will ensure that the ability of our people to earn a living is not reduced.

There is some talk of value added products which will come from carefully monitored sustainable forest harvesting, though exactly what these products may be is yet to be defined. The issue of greatest concern and interest however is that this bilateral agreement with Norway does not seem to have a readily identifiable legal and regulatory framework to which Guyanese may apply for guidance on such matters as intellectual property rights, trade rights and the rights and mechanisms of redress for breaches of fundamental business law issues within the ambit of the Low Carbon Development Strategy.

The Memorandum of Understanding and concept note between Guyana and Norway give some indication of the mechanisms for the monitoring of the funds coming from Norway and the standards which are to be met in order that funding might be sustained. It is clear however that it is for Guyana to implement the necessary mechanisms for development of this strategy.

Thus far there have been seven factors considered to be essential to maintaining this arrangement namely: the strategic framework, which deals with the consistent development of a method of sustainable forest management; continuous multi-stakeholder consultations, special reference to Amerindian communities as they are situated in the forested areas and are immediately affected; governance, including relevant legislation and monitoring processes; MRV (monitoring , reporting and verification) processes on emission and removal of carbon from the forests; rights of indigenous people as regards the REDD agreement and, finally, annual assessment and verification.

It is under the governance factor that the requirement for the necessary legislation and legal framework which will see the successful implementation of the LCDS that there is this manqué. Perhaps the architects of the LCDS prefer to allow the ideas expressed in the documents outlining it to first develop, and then to create some kind of legal framework around them or adjunctive to them with the passing of time.

Perhaps this approach is informed by distaste for legal technicians and their craft. However, there is yet to be found across the world, any example of technical arrangements of the nature and magnitude of the Guyana LCDS, which does not have a tightly constructed legal and regulatory framework that provides guidance on the general and specific aspects of business law, such as intellectual property, trade and industry, consumer law and regulation and international trade law.

It is startling therefore that there seems to be little attention to the issue of legislation required for the LCDS to function properly. The general tendency across CARICOM seems to favour a piecemeal approach to the region-wide legal regulation of matters to do with the CSME and it would be a wasted opportunity for Guyana should it not seize the chance, to set the trend of thorough, rigorous construction of substantial and holistic legal regulatory mechanisms, which incorporate dispute resolution fora comprising competent, expert authorities.

It is not difficult to establish a legal and regulatory framework for the LCDS because the scope of the plan encompasses the major areas which will be covered by it. Almost immediately the legal technician can recognize that the interrelationship of traditional knowledge of the Amerindian peoples (this will fall under intellectual property law) local and international trade law (dealing with local and international trade rules and regulations) and public international law, which is applicable to the Norway-Guyana agreement, will have to be considered in the creation of such a framework.

It will also be recognized that environmental law, particularly international environmental law, will have to be included in the new legislation which will deal with carbon emissions and carbon removal.

There is also the necessity to deal with the resolution of disputes through the methods that currently exist and by the creation of alternative dispute resolution mechanisms, such as arbitral tribunals. Guyana would significantly augment its general legal system by establishing a National Arbitration Board similar to that found in Singapore and other parts of Asia, which deal with the resolution of complex technical industry specific disputes.

The Low Carbon development strategy will certainly have a fair share of disputes ranging from traditional knowledge rights and other aspects of intellectual property, to trade rights, accounting and economic issues. In following the example of the Competition Appeal Tribunal of the United Kingdom, which was established in 2003, and which deals with a range of issues in economics, law, business and accountancy, the Guyana LCDS will have a sturdy monitoring forum.

It is clear that the effective working of the LCDS will require a high level of efficiency and management as has been dictated by the current donor, Norway, and which is an essential part of the arrangement. Guyanese as well as the international onlookers to whom it is hoped the LCDS idea will appeal, need to be assured that the LCDS is workable and demonstrates a workable legal and regulatory frame which will hold it together.

In its current state the LCDS expresses a looseness of character akin to a growing unmannerly but bright child, who without the necessary correction, control and discipline will lose all of the advantage of a privileged position, become a nuisance and burden on society, or may not grow up at all. A properly constructed, well thought out legal frame work is necessary for this grand design to work.

Caribbean Musicians and Copyright law; an unsavory relationship.

2010-07-15T18:31:00.001-07:00

By Abiola Inniss LLB,LLM,ACIarb

It is hardly debatable that the variations in copyright laws across the Caribbean are the result of the peculiarities of our various jurisdictions compounded by the lack of a regional regulatory scheme. It is also trite knowledge that Caribbean musicians often struggle to obtain adequate protection of their productions and where they do, it is localized within specific countries. This means that while a Jamaican musician may have protected rights in Jamaica, this will not necessarily apply to the same work in Guyana or Antigua, and so on; though section 3 of the Jamaican Copyright Act no 5 of 1993 ,specifies that where a work has been first published in a specified country it shall be an offence in Jamaica to republish it without permission. A January 2010 report of the International Confederation of Societies of Authors and Composers (CISAC) revealed that royalties accruing to Caribbean music and Art in 2009 had dipped by 27 percent to Euros 3.3 million. CISAC reported that it had been some three years since such a marked decline had occurred in the Caribbean and suggested that apart from the worldwide economic decline; the inability of some Caribbean governments to deal with their Intellectual Property issues had contributed significantly to these problems. Trinidad and Tobago, Jamaica, Cuba, the Dominican Republic, Barbados and St. Lucia are members of CISAC which is an international organization promoting the rights of authors and composers while others are less than interested.
While CISAC may be a useful organization, it is striking that Caribbean nationals have yet to establish a region wide focus group which will serve to examine and promote the rights of producers of intellectual Property and press Caricom into the establishment of a region wide regulation scheme.
This column has previously proposed and continues to insist that the Caribbean Court of Justice be given jurisdiction as a Court of First instance for Intellectual Property matters; a development which would see greater enforcement of copyright laws and a thrust towards the modernization of others. The regional jurisprudence in this area would also have a significant catalyst for its advancement with the offshoot of specialization and developing expertise among intellectuals, jurists and practitioners.
Caribbean musicians are faced with the dilemma of the artist’s urgency of creative expression, the need for just recompense and the assurance that their work will be recognized and respected. These aspirations are often compounded by lack of enforcement or outmoded laws, or both in some jurisdictions. While modern copyright laws where they exist , go some way towards protecting copyright as in the case of Jamaica, there is the view (supported by some evidence ) that the copyright laws afford the producers greater rights than the creative minds who originated the music. This was an argument presented at a discussion forum entitled ‘Talking Copyright: Reflecting On A 300 Year History & The Music Industry’, held at the University of Westminster in London on June 15, 2010. At this forum several practitioners and law teachers expressed the view that the copyright laws of England were crafted in favour of the producers of music and so made it difficult for the actual artist to earn a decent living. It was argued that rights are shifted from the artist to the producing company and so the business practice and the structure of the laws must be crafted to balance the interests and create a fair regime for both producers and artists. An examination of the laws (both of England and some Caribbean countries) reveals that this is not because the law by itself gives preference to producers but more the case that it is silent on the issue of licensing to producers. While it may make provision for licensing to be given freely by the holder of copyright ,it does not restrict the business practice which sees producers requiring licensing be handed to them in totality in exchange for producing and marketing the works. Authors are often handed royalties which are a small fraction of the profit made by the producers. There are also contractual issues attached to licensing which are often disadvantageous to the author, such as the termination clauses which may be drafted in favour of the producer, leaving the author in limbo. While freedom of licensing is certainly to be maintained, there needs to be some recognition by the law which protects authors from unscrupulous business practices in the same manner as the law concerning unfair contractual clauses, but of course, aimed at dealing with unfair licensing practices. This is because one may not successfully argue that a contract term which requires that licensing be given to a producer who will pick up the tab for production and marketing and then hand the author proceeds from it, is unfair. How much of the proceeds is actually given to the artist is a question of economics and cannot be easily or perhaps even fairly regulated by legislation, as prevailing circumstances at the time of production and sale will be the major consideration.
The Caribbean musician is faced with the serious and more immediate problem of losing significant amounts of revenue from the sale of pirated CD’s and DVD’s. The musician is then persuaded to make recordings in territories such as Jamaica, Trinidad, Barbados and St Lucia where the laws are relatively modern and in some instances regularly enforced. The problem is that there is not always reciprocity in the laws of other countries and so there may not be prosecution for the reproduction of CDs published elsewhere. Of course where IP legislation and issues are not a priority artists suffer greatest.
The issues though complex are not without the possibility of devising a better means of coexistence between authors and consumers and the laws, and it need not take forever. Caribbean artists need to organize themselves quickly at the regional level and following the example of CISAC , establish a body which will propose the needed solutions to Caricom. It is up to the region’s artists to make their voices heard resoundingly. There is yet conciliation for the unsavory relationship.

Applying Alternative Dispute Resolution Within Communities. -A speech presented at the Alternative dispute resolution forum of the United Nations Association of Guyana and the Guyana Association of Women Lawyers June 30 2010. rs

2010-07-01T09:11:00.000-07:00

Applying Alternative Dispute Resolution Within Communities.

By Abiola Inniss LLB, LLM (Business Law) ACIArb.

In 1976 at the Pound Conference of the United States of America Supreme Court Chief Justice Warren Burger as he then was, on the subject of finding a better way declared ” We may well be on our way to a society overrun by hordes of lawyers, hungry as locusts, and brigades of judges in numbers never before contemplated. We have reached the point where our systems of justice—both state and federal—may literally break down before the end of the century .” This was a key point in advocating the use of ADR in the United States which was widely touted at the time as an alternative to the formal system of justice then in place. From the seventies to present there have been many projects implemented all across the United States with varying degrees of success from which valued lessons we may derive some wisdom on the subject of applying ADR in communities. We will also take a look at the success of ADR in Singapore (with specific reference to community ADR). Singapore is a developing country with some conditions to which we in Guyana may easily relate as far as concerns some aspects of culture, family life and day to day living; and in which ADR has been widely implemented, heavily monitored and regulated as part of the management of access to justice, and the overhaul of the formal justice system.
I am not aware that the Honourable Chancellor Mr. Carl Singh has expressed sentiments similar to those of the then US Supreme Court Chief Justice Warren Burger, but recent years have seen mediation being heavily propounded as the choice form of Alternative Dispute Resolution which it is hoped will result in a more efficient Justice system in Guyana, the particular idea is that it will reduce the backlog of cases in the court system. The evidence from around the world however suggests that mediation by itself will not solve the problem of a backlog and that all the forms of ADR must be used, I make particular reference to Singapore which implemented a plan which saw a backlog of cases numbered at 2059 awaiting trial dates in 1991 reduced to 175 in 1993 while appeals were reduced from 275 in 1991 to 71 in 1993 ( see The report of the 12th conference of Chief Justices of Asia and the Pacific by CJ Chan Sek keong of Singapore 17th May 2007).
Under this plan all of the ADR methods including councils of elders in certain ethnic communities were used and community ADR was and still is especially important in the efficient working of a modern justice system.
There should be little doubt at this time as to what constitutes ADR , but in spite of the enthusiasm which we all possess for this discipline ( for it is a discipline) and the burning optimism that it is a better way, we need to ask and answer the question asked by the public; alternative to what? Alternative dispute resolution is often heavily marketed as a viable parallel system to the normative system of justice but where it is not attached to any formal system of enforcement it is often perceived as being unable to provide the same level of stability as the formal system of justice which we know. In other words, if it isn’t court connected it’s just idle talk. For this reason it is often not regarded as a serious dispute resolution mechanism, especially at this time in Guyana where there is an entrenched adversarial approach by the majority of citizens. In my experience, it is only where both parties are immediately cognizant of some kind of loss or severe inconvenience to themselves that they would accept an invitation to mediate or to discuss any issue in dispute. A writ of summons usually obtains an almost immediate response after which people are more inclined to sit down and talk about their problems. In the prevailing environment a writ of summons opens the door to ADR, rather than ADR having the preferred place of the writ of summons. Reasons for this lack of interest or perhaps this selective enthusiasm may be that there has not been enough publicity about the process (in this case mediation which is currently available at the mediation center) and not much evidence is available that in its current operations, it is really working to reduce the present backlog in the Guyana courts by the actual settlement of disputes.
If we the proponents of ADR are to effectively present it to the community and in communities as a real alternative to the beleaguered court system, it must in reality be done in reference to the legal system. Alternative Dispute resolution may be regarded as an extended form of equity which allows disputants the opportunity in a less formalized and stressful environment to have a say in the outcome of their problems. Just as Equity tempered the common law by the creation of an humane approach to dispensing justice, just so Alternative Dispute Resolution may be expressed as an offspring of its concept of justice which does not merely apply fastidious rules but takes into consideration the human condition and the need for flexibility in dealing with this reality. It allows for greater creativity in solutions, affords an opportunity for relationships to be mended, and for animosity to be replaced with cordiality. It therefore does not stand alone as a rival of the normative system of justice but is really a close relative without whose input the family becomes dysfunctional. (see ADR: The New Equity by Thomas O.Main
University of Cincinnati Law Review, Vol. 74, pp. 329-404, 2005)

The challenge then for Community based ADR proponents is to craft a system of alternative dispute resolution which will be understood to be part of an entire system of justice dispensation, even where it is not connected to the court system. There must be the perception of a singleness of purpose and that purpose must be the efficient equitable dispensation of justice for all citizens, using all forms available, and in conformity with the laws of the land. ADR practitioners must be sufficiently knowledgeable of the law to be able to recognize an illegality and to let the parties know of it. In the history of this country we will find many instances of the use of traditional dispute settlement which involved village elders and village councils , resort to the law was left for last or in cases where it was felt to be the best option in the circumstances. The idea of resolving matters outside a court room in an orderly, law abiding manner is therefore not unknown in this society.
The idea of establishing what may be called Community Justice Centres may arguably be described as an extension of this practice and may serve to cement the idea of citizens helping themselves to solve their problems.
The temptation exists at this stage of our venture into ADR in Guyana for pockets of perhaps well meaning groups to establish operations in mediation and other areas across the country in an ad hoc manner, there is much evidence globally which forewarns such an approach (see Institutionalizing Community Mediation: Can Dispute Resolution “of, by, and for the People” Long Endure by Timothy Hedeen
Originally published in the Penn State Law Review, Volume 108, Number 1, Summer 2003 in which he discusses the rise and fall of grassroot ADR groups). Competing methods, varying standards of organization and training, fee structures and general aims can wreak havoc and compound matters for the same court system for which it is claimed to be an alternative. Some theories of Alternative Dispute Resolution describe the alternative to mean ‘a parallel, citizen-run and community-centered dispute resolution system. (Timothy Hedeen & Patrick G. Coy, Community Mediation and the Court System: The Ties that Bind, 17 MEDIATION Q. 351, 352 (2000).)
However to attempt to adhere to this in the purest sense requires a disconnection from the Justice system of the country, which is not sustainable and will result in the eventual collapse of the parallel system. It is better to construct a collective programme for Community Justice centres which has a set of central goals which are concurrent with those of the central administration of justice.
From the experiences of the United States we may find the following objectives useful in the establishment of Community Justice Centres.
The San Francisco Community Board carried these objectives:
1. Address disputes before they enter the formal legal system
2. Prevent and deescalate conflicts
3. Use conciliatory mechanisms as a vehicle for addressing the relationship between disputing parties
4. Strengthen the capacity of neighborhood, church, organization, school, and social service organizations to address conflict effectively
5. Strengthen the role of citizens in the exercise of their democratic responsibilities
6. Use community support to recruit volunteers as diverse as the neighborhoods served and to solicit appropriate conflicts and issues.

Other aims for neighbourhood justice centres are:
1. Diverting cases from the court caseload,
2. Providing a more appropriate process for selected types of cases,
3. Providing more efficient and accessible services to citizens,
4. Reducing case processing costs to the justice system.
These so called neighbourhood justice centres or community ADR centres upon establishment , need to make use of the range of ADR techniques if they are to be effective. The reason is that there are any varieties of circumstances which will require different approaches. Conciliation, mediation, mediation in conjunction with negotiation and arbitration and of course referral to the police and court system will need to be part of the functioning of such an entity. The diehards who hold fast to the ADR as being a parallel system in which citizens seek parallel justice may object to this; but must be reminded that this paper proposes the use of ADR as an extension of Equity and a part of a cumulative system of justice dispensation.
This approach has worked in Singapore where the report of the Community Mediation Scheme ( see Community mediation in Singapore By Gloria Lim ,Manager Community mediation Unit ADR division , Ministry of Law)
gives some guidance as to what issues may be successfully mediated in the Community. These are some of the listed issues:
Disputes involving neighbours
Quarrels between neighbours;
(b) Nuisance complaints;
(c) Common corridor obstruction complaints;
(d) Complaints regarding littering in the common corridors;
(e) Noise pollution complaints; and
(f) Leakage/Water seepage problems

1. Family Disputes especially pertaining to the care of the elderly and the very young and the sharing of family spaces.
2. Landlord and Tenant Disputes-distraining for rents, issues of easements and rights of way
3. Other Social/Relational Disputes such as borrowing and lending money,
4. Disputes and squabbles between vendors and shop owners
5. Relational problems between employer and employee or amongst colleagues.
All of these issues may be placed within various category of the law in order to establish rights and wrongdoings, but were effectively dispensed with through ADR.

These kinds of issues permeate the Magistrates Courts in Guyana and so can be easily identified as being ripe for Community ADR.
The creation of community ADR systems which are well structured, have defined, identifiable goals, stability and integrity, will require careful, expert planning and collaboration with the current system of Justice. Evaluations of key elements in the Justice sector will have to be made, beginning with which sectors have the greatest immediate need for ADR interventions. One may wish to begin by evaluation the need for ADR in family disputes, which interventions may help people to avoid some of the catastrophic consequences in relationships which we read about almost daily in the newspapers. There might then be an expansion to include the other relational issues described before, and then matters which deal with commerce and trade. The method which is used and how much is done will depend on the funding available and who the funders are , with this in mind we need to remember the old saying,” he who pays the piper calls the tune.” It is important that correlating values between the funders and the funded must be established..
It is without question that the Guyanese society is in dire need of means of promoting peace and justice and that the tools are available by which we can significantly impact the lives of our people. A carefully thought out, intelligent approach to this system will garner greater results than all the world’s enthusiasm with misdirected energy and resources. It is up to us as the advocates of this daughter of Equity to see that she is properly established, aptly represented and adequately distributed for the benefit of all Guyanese.

Caribbean Consumer law: Developing a legal and regulatory framework.

2010-06-01T09:48:00.000-07:00

By Abiola Inniss LLB, LLM (DeMontfort) ACIArb

It is that noteworthy that among its undertakings for its mandate on the Caricom Single Market and Economy (CSME), the Caricom Secretariat undertook the hosting of a seminar on Competition Policy and Law in Georgetown, Guyana on May 3, 2010. The programme outlined topics such as “Caricom Competition Policy in a challenging economic environment”, and “Competition Policy in Caricom”, though if the truth be told, it carried the semblance of a man’s bikini; significant for what it suggested, concealing of that which was crucial. Consumer law and competition policy and law are almost inextricably intertwined at times and so are affected one by the other, it therefore means that any cumulative legal framework must be reflective of this relationship. It seemed that while the importance of this relationship was recognized, the creation of a regulatory framework complete with law harmonization and dispute resolution mechanisms (alternative and normative legal systems, such as arbitral tribunals and courts of law) still remains a distant idea which would be “looked into”;instead there was the espousal of a consistent piecemeal approach which considered the individual state mechanisms and the equipping of those systems in the hope that an eventual equality would result across the region.
It is an unhappy occurrence that the intellectual prescience in the Caribbean community has not come to bear on the necessity to establish a common regulatory framework which will dispense the resolution of disputes in an efficient, cost effective manner. Any mention of the establishment of a regional arbitral tribunal is customarily met with the “that costs money” and “we can’t afford it” responses in an answering machine mode. It is even more disturbing that the legal intellectuals have not seemed to examine the subject from the point of establishing a multi-purpose tribunal which will be constituted of the talents of a variety of specialists in the areas of law which are of especial importance at this stage of the development of the Single Market and Economy. The laws of International Trade, Intellectual Property, Private International Law, Competition Law and Consumer Law fit this prescribed construction perfectly. The fact remains that whatever excuses Caricom officials may give there is a dire need for a legal and regulatory framework which will allow the resolution of disputes in whatever form it may assume, be it in courts of law or by the preferred time and cost effective method of arbitration. The Caribbean may look to the European Union for guidance on the resolution of disputes which arise from and various jurisdictions and provide the added challenge of the mixing of civil and common law systems. The Caribbean community as it is now constituted comprises countries which have Civil law systems, as in the case of Haiti and Suriname and in the case of Guyana, the land law system, which is Roman Dutch in constitution, is common in large part to that which obtains in South Africa. The other Caricom countries have fewer anomalies in their legal systems, since for most part the common law systems inherited from the British became the dominant legal systems. The legal system of St Lucia is an hybrid of French Civil law and English Common law which is unique and outstanding and carries its own challenges (see Belle-Antoine, Commonwealth Caribbean Law and legal systems, Cavendish 2009).
The example of the European Union shows the Court of First Instance attached to the European Court of Justice and a tribunal for the Civil service of the entire European Union. The idea for the Caribbean is that there should be a tribunal which will deal with consumer affairs in the Caribbean and which may also incorporate issues arising from the Law of competition, the Law of Trade and general Business Law. Multidisciplinary tribunals have worked in other areas of the world and therefore if adapted to requirements of the Caribbean should prove to be quite successful. The Competition Appeal Tribunal (CAT) of the United Kingdom is a specialist judicial body with cross disciplinary expertise in economics, law, business, and accountancy. It is empowered under United Kingdom law to hear and decide appeals, claims and other applications involving competition or economic regulatory issues. This tribunal came into being on April 1 2003.
It is safe to say that should the Caribbean planners spend a little more time constructively engaging the more advanced, modern thinking in these areas, and less time on talk shops which have to little to offer apart from the usual excuses of too little resources and a penchant for perpetually “looking into” matters, there will be substantial development in key areas of law and development. There is little point in the establishment of a Single market and economy which has little to offer in its legal and regulatory framework of the key issues of International trade law and development law and regulation, consumer and competition law and policy. Multinational corporations and investors need to be assured that their disputes will be handled by competent, expert, fair Jurists in an efficient and effective manner. The Caribbean stands to gain much in terms of the development of a common jurisprudence, the development of expertise and substantial revenue generated by such a forum. The Law courts of England are a renowned choice of jurisdiction for international claims and can stand testimony to the verity of all the above mentioned benefits. Where there is a lack of expertise in the region, it may be sourced elsewhere through various projects. There is less and less excuse for the lagging efforts in the regulation of our legal systems. It is time to strip away the bikini and face the facts.

Caribbean IP- Protecting Traditional Knowledge

2010-04-22T16:19:00.001-07:00

While there is much preoccupation with the issues of copyright law in the Caribbean which is centered around trade and commerce, the lesser known issues of traditional knowledge in Intellectual Property are hardly considered to be of especial significance to the majority of policy makers, and except for a few pockets of interest groups such as a group of Rastafarians in Jamaica the average citizen is uninformed on the subject. The importance of traditional knowledge and the preservation of entitlement to retain the rights to commercial and other exploitation are of some importance to Caribbean countries as our histories are quite recent, dating settlement by Europeans and others to the fifteenth century and later, and contain a rich legacy of traditions in many areas which resulted from an amalgamation of various cultures; or which may have remained within the grasp of particular cultural enclaves. The Amerindian nations have histories in the region which predate settlement by other cultures and in Guyana have been found in several areas to maintain centuries old habitudes (these may be considered for protection under Indigenous Intellectual Property law). Traditional use of plants and animals for medicinal purposes, birthing methods, traditional bone setting methods, spiritual healing and cleansing, psychiatry , religion , music, dance and stories are but some of the areas which could require protection. Assuredly many of the aforementioned activities are carried on daily across the region alongside the westernized lifestyles as either a parallel culture or a fusion of the two. The following excerpt from a WIPO publication is instructive on this idea.
‘‘Contrary to a common perception, traditional knowledge is not necessarily ancient.
It is evolving all the time, a process of periodic, even daily creation as individuals
and communities take up the challenges presented by their social and physical
environment. In many ways therefore, traditional knowledge is actually contemporary
knowledge. Traditional knowledge is embedded in traditional knowledge systems,
which each community has developed and maintained in its local context. The
commercial and other advantages deriving from that use could give rise to intellectual property questions that could in turn be multiplied by international
trade, communications and cultural exchange (http://www.wipo.int/about-ip/en/studies/publications/genetic resources.htm)
Differences in worldview on the subject have distinguished local knowledge from traditional knowledge, social scientists have placed knowledge into a naturalistic framework which is illustrated by a gradation which extrapolates backwards from recent to ancient knowledge. Local and traditional knowledge are determined by the length of time for which they have existed, for example decades and centuries as against millennia, with local knowledge being thought to exist in the more recent stages and traditional knowledge in the latter ones. Additionally, traditional knowledge is thought by social scientists of the naturalistic school of thought as not falling into a natural category and being reflective of social struggles, land issues and relationships , power struggles and social control and an adherence to ancestry or heritage.(see Valuing local knowledge: Indigenous people and intellectual property rights . Brush, Stephen B ,Stabinsky Doreen , Island Press 1996.)

Local communities often have very different perceptions of the ownership of traditional knowledge, often believing that such ownership does not exist since it may have derived from divine inspiration or/and culturally it is passed down the generations. It is perhaps because of this ambivalence that the issue of traditional knowledge is not a hot point in indigenous communities in the Caribbean. Protection of traditional knowledge by Intellectual Property Laws is a major issue as far as concerns traditional medicines, since huge international pharmaceutical companies have been known to draw on these resources which may then be combined with other additives to produce drugs which are then patented and sold at significant profit, whilst the source of a part of that invention remains unacknowledged financially or otherwise. Copyright law deals with the form of expression ,such as whether it is song or dance ,electronic or paper for example , and so is more suited to the protection of traditional cultural expression than to traditional knowledge. While Intellectual Property Law in the region remains hodge- podge on the whole, it is useful to turn for guidance to the recent developments in the protection of traditional knowledge in IP Law internationally. In Public International Law there exists a range of legal conventions, treaties,and instruments designed to address the treatment to traditional knowledge, these include:
The Convention Concerning the Protection of the World Cultural and Natural
Heritage 1972 (the UNESCO Heritage Convention);
The Convention on the Means of Prohibiting and Preventing the Illicit Import,
Export and Transfer of Ownership of Cultural Property 1970 (the UNESCO
Cultural Property Convention);
• The Convention Concerning Indigenous Peoples in Independent Countries 1986
(ILO Convention 169);
• negotiations concerning the FAO’s International Undertaking on Plant Genetic
Resources (the IUPGR-FAO);
• The Convention on Biological Diversity 1992 (the CBD)39; and
• United Nations Convention to Combat Desertification in Countries Experiencing
Serious Drought and/or Desertification, Particularly in Africa 1994 (the
UNCCD).
These however have been widely criticized as being concerned with the protection of traditional knowledge only in so far as it is connected with the cause of global ecological stability.(see Djims Milius Justifying Intellectual property in traditional knowledge, 2009.)
The current developments see proposals for the use of mechanisms such as the creation of an ombudsman or public defender to investigate abuses against
Indigenous communities
, voluntary contractual regimes to ensure access and benefit-sharing such as
material transfer agreements (MTAs) or information transfer agreements (ITAs);
, voluntary guidelines and codes of conduct such as the FAO International Code of
Conduct for Plant Germplasm Collection and Transfer, the Bonn Guidelines
and the WIPO IGC draft IP Guidelines for Access and Benefit-Sharing;
, databases and community registers to publish TK in the public domain and hence,
failing novelty, block the grant of patents based on indigenous knowledge; and
a Global Bio-Collecting Society (GBS) providing a TK register mechanism at the
global scale;
, plant breeders’ rights used to cover new plant varieties under the UPOV
Convention(s).(WIPO/GRTKS/IC)

The Caribbean in spite of the oddities in Intellectual Property regulation, is in the ideal position to take advantage of the knowledge available and to craft for itself a protective regimen complete with enforcement scheme based on some or all of the aforementioned proposals for protection of traditional knowledge. With the focus on climate change and the protection of rainforests, such a scheme is vital within the Caribbean context and needs to be given priority treatment concurrent with the other issues in the area of copyright. The protection of the cultural heritage of the region through a normative system of law is exceeding necessary for the survival of our unique brand of cultural expression. It will aid in its preservation even as dilution and westernization change the dynamics of presentation and expression. The Shantos (a form of calypso with a unique rhythm) of Guyana’s Bill Rogers and the Parang of Trinidad will need continuous protection even after the rights have expired for the sake of their preservation. A regime for the protection traditional knowledge will ensure the survival of the core Caribbean culture and fairness in the access to the knowledge which results in economic or other benefits.

Caribbean Intellectual Property; The concept of Fair Usage

2010-03-17T11:11:00.000-07:00

By Abiola Inniss LLB, LLM, ACIArb

At almost any time that the issue of Intellectual Property is discussed by peoples of the Caribbean there is considerable confusion and uncertainty to be found about what the law says, what it means and what the rights of usage are. This is not surprising or unexpected since many lawyers are themselves hard put upon to provide pertinent answers to the many arising issues.

This is not aided in the least by broad statements on intellectual property such as the definitions given by WIPO which are a general aid to understanding the subject area but which cannot deal with the variations in national laws and which do not explain that with any of the rights described, responsibilities also exist.

With the starkness of the non-existence of a regional policy on Intellectual Property and the absence in several countries of comprehensive, modern laws, the situation becomes an interesting mixture of self preservation, individual moral direction (or misdirection), opportunism, and even some attempts at the enforcement of individual concepts of justice in parallel existence with the other elements of the normal system of justice.

A panoramic view of the IP situation in the Caribbean would present to the observer, a carnival of Olympic size replete with politicians, diplomats, rights advocates, consumer groups, law enforcement, and impotent jurists, all gyrating discordantly to the WIPO band while Caribbean citizens look on, or are pulled or shoved in.

It is in such a scenario that the concept of fair usage must be adumbrated and placed within the context of the WIPO outlines on Intellectual Property. While such a topic would undoubtedly require at least a chapter or more for proper discussion, a useful outline can be provided here. The term fair use or fair dealing, where it exists in Intellectual Property Law is used to describe the defences under English law (Copyright Designs and Patents Act 1988) to alleged infringement of copyright or, if preferred, it describes permitted acts.

Dealing in this sense means that someone has made use of the work and not an implication of any arrangement between the parties. In fair dealing under the Act the following are permitted:
1. Fair dealing for the purpose of research or private study
2. Fair dealing for the purpose of research or criticism
3. Fair dealing for the purpose of reporting current events.

Under United States Law, the 1976 Copyright Act (17 USC, S 107) permits some copying and distribution without the permission of the copyright holder or payment to the holder. While the statute does not clearly define fair use it established four principles or factors which are described as non-exclusive and are intended to be used in analyzing whether fair use has occurred or not. These are as follows:
1. The purpose and character of the use;
2 The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

In many Commonwealth countries the notion of fair usage was developed through common law or legislation and is intended to allow intellectual and other development through the fair use of information. This is based on the idea that there can only be substantial innovation, change and progress where knowledge is shared freely for legitimate purposes of learning and criticism which then contribute significantly to the body of knowledge of a subject area. In Australia, however, the rule is absolute that permission must be granted by the copyright holder for any purpose whatsoever.

It is interesting that across the Caribbean there are varying degrees of the idea of fair usage in the protection of Copyright. Perhaps the most comprehensive piece of copyright legislation, which seeks to balance the interests of both the copyright holder and the end users, while promoting the idea described above, may be Jamaica’s Copyright Act of 1993 (Copyright Act 01/09/1993, No.4), which clearly outlines the idea of fair dealing described above and gives detailed factors for the courts to consider in analysing infringement. This act gives the end user a number of permissions to use works fairly and without fear, while giving significant protection to the holders.

The St Lucia Copyright Act (Copyright Act 06/09/1995, No.10) also provides a comprehensive guide to usage for different purposes making fair allowance for educational and other learning purposes and details the requirements of fair dealing.

The Copyright Act of Trinidad and Tobago follows the Jamaican and St Lucian Acts in its modern outlook but is stricter in permitting the usage of works and does not provide any guiding factors for the analysis of infringement, leaving this to judicial interpretation.

Barbados also allows some amount of fair use in its Copyright Act (Copyright and Related Rights Laws and Treaties Copyright Act, 1998) but is not as detailed as either Trinidad or Jamaica and restricts the use of copies by reprographic means even for educational purposes.

What is clear from this small sampling of the laws in the Caribbean, is that there is considerable recognition of the need to facilitate educational, intellectual and other development by fair use of intellectual property, it is also evident that within the context of the CSME, the variations in the laws will create significant difficulties for the ease of intra-regional business.

In a number of countries in the Caribbean modern laws do not exist, and this creates the wide variations in the rules of Intellectual Property. Guyana is a case in point as it is still governed by the United Kingdom Copyright Act of 1956, while the Copyright Bill of 2003 has not been enacted. This is significantly compounded by the lack of a Regional Arbitral Tribunal for Intellectual Property or Regional court of First Instance for Intellectual Property.

While the idea of fair usage may be an acceptable notion to the end users of works, it may not be as appealing to the producers of works and that will have to be rectified by a balancing of the rights and responsibilities. A regional approach that promotes the idea of fair usage and explains the law will go a long way to creating the cordial nexus between the end users and holders of copyright.

CARICOM must assume its responsibilities in creating the regional policy for Intellectual Property and the region wide promotion of the rights and responsibilities in Caribbean Intellectual Property.