One of the ways I try to deepen and provide nuance to my understanding of copyright law is to engage in thought experiments about how different alterations to the law might make a practical difference for creators, rights holders and users. Copyright law is so metaphysical (as Justice Story famously observed) that its practical application is by no means intuitive. Anyone who teaches regularly in this area has had the experience of drilling some point home, only to discover that the listeners get the point as an abstraction but cannot apply it. Reading case law is one way to address this difficulty. Another is to ask what difference changes in a particular provision might make in the everyday world.
So when I saw this blog post about about Fair Usage in Caribbean Intellectual Property I saw an opportunity to consider alternative structures for copyright. Ms. Inniss observes, in her brief discussion, that the Jamaican Copyright Act is “the most comprehensive piece(s) of copyright legislation which seeks to balance the interests of both the copyright holder and the end users.” Since I have often commented on the imbalance of US copyright law, here was a chance, I hoped, to see how other decisions might make a real difference. I was not disappointed.
My brief perusal of the Jamaican Copyright Act has not been either comprehensive or critical; I claim no expertise and nothing I write here should be taken as anything but one of those thought experiments. With that caveat, here are some of the different choices made in Jamaican law, as opposed to that in the U.S., that seem sensible to me:
In its definitions section, Jamaican law defines an “arrangement,” over which the rights holder has control, in a much more exact and limited way than “derivative work” is defined in the U.S (section 2). The Jamaican definition suggests how to protect the legitimate interests of a rights holder without choking off too many creative opportunities that could arguably considered derivative. Most creativity, after all, is derivative of something, but the degree of dependence and similarity varies a great deal, so more nuance in a derivative works right would foster the goal of copyright.
The term of the Jamaican law is life of the author plus fifty years, and anonymous works are protected for 50 years from first publication. Film and sound recordings are also protected for 50 years, from the time of their creation (sections 10-13). In short, Jamaica has not followed the U.S. down the ruinous route of every longer terms, but stuck with the minimums required by international law.
Jamaica protects the moral rights of attribution and integrity of the work that are so important especially for scholars, but it subjects these rights to numerous exceptions to avoid preventing socially desirable reuse (sections 14-21). These rights are co-terminus with the economic rights (some last a shorter time, in fact) so they protect significant authorial interests without tying the works on which culture is built to the personality of the author forever (J.D. Salinger, anyone?).
There are no statutory damages available for infringement in Jamaica, although a form of punitive damages are at the discretion of a judge (section 32). This means that unscrupulous rights holders cannot threaten users with immense financial liability before even making their case to a court. The need to prove actual damage is just one of several ways in which the Jamaican law roots copyright protection in unfair business practices, which is, in my opinion, where it rightfully belongs. In this way, users of creative works who have no financial or competitive interest are not turned into targets for avaricious litigants.
It is important to note that the protection of moral rights in Jamaican law is a major reason that it is possible to make the economic rights more truly economic and focused on protecting real competition. Because reputational issues are unbundled from economic ones, rights holders with very different concerns are not all directed down the same legal paths.
Finally, the exceptions to the economic rights struck me as clearer and more designed to promote the general progress of “science and the useful arts.” There is a fair dealing provision applied to criticism, review and reporting that is exactly like the US four-factor fair use analysis (sections 53 & 54). But there is also a fleshed-out educational exception, so that repeated and socially valuable teaching activities do not depend on the vagaries of a balancing test. There are specific provisions that govern the creation of course packs and electronic reserves for teaching (sections 57 & 59). In the latter case, I might complain that the limits are too strict — 5% of a work and only when no license is available — except for the fact that licenses are governed by a Copyright Tribunal (section 96). Thus educational use is not left to the whims and profit motives of collective rights organizations that operate without oversight (as, for example, the Copyright Clearance Center in the U.S. does). And when all else fails, the Ministry of Justice in Jamaica is empowered to prescribe new exceptions that are deemed in the public interest (section 86).
All these things seem like sensible decisions to me; I hope others will join me in looking at this and other national copyright laws to see what we can learn about how our own law works, fails, and might be improved.